LONNIE LEE POSLOF, Sr. v. JAMES A. YATES, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LONNIE LEE POSLOF, Sr.,
Petitioner - Appellant,
v.
JAMES A. YATES, Warden,
Respondent - Appellee.
No. 09-55686
D.C. No. 5:06-cv-01418-AG-SH
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 17, 2011
Pasadena, California
Before: GOODWIN, W. FLETCHER, and RAWLINSON, Circuit Judges.
Lonnie Lee Poslof, Sr., appeals the district court’s denial of his petition for a
writ of habeas corpus, arguing that his sentence of 27 years to life in state prison is
cruel and unusual punishment in violation of the Eighth Amendment to the U.S.
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Constitution. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm.
In 1992, Poslof pled guilty to two counts of lewd and lascivious acts with a
child in violation of California Penal Code § 288. He served a sentence in
California State prison and was released on parole in 1995.
Because Poslof was convicted of a felony sex offense, California law
required that he register his residence with the local authorities. He was required
to register any additional residence, Former § 290(a)(1)(B), or any change of
residence within five working days, Former § 290(a)(1)(A). California law
declared willful violation of the registration requirement to be a felony punishable
by imprisonment “for 16 months, or two or three years.” Former § 290(g)(2).
In August 2002, Poslof claimed to be residing part-time at two different
residences. He had registered only one of them. He had not registered the
residence that he had bought recently, and at which he was residing. The State
charged Poslof with willful violation of Section 290. Evidence presented at trial
indicated that he was no longer residing at his previous residence. A jury
convicted him of the charged offense. In a bifurcated trial, the trial court also
found true allegations that Poslof had two prior convictions for lewd and lascivious
acts upon a child, which qualified as serious or violent felonies. The trial court

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sentenced Poslof to 27 years to life in state prison under California’s Three Strikes
law, Cal. Penal Code § 667(e)(2)(A).
Poslof argues that his third-strike felony of failing to register his second
address is a nonviolent, regulatory offense and that the harshness of the penalty is
grossly disproportionate to the gravity of that offense. Poslof relies on Gonzalez v.
Duncan, 551 F.3d 875 (9th Cir. 2008), and People v. Carmony, 127 Cal. App. 4th
1066 (2005). In those cases, the triggering offense was failing to update
registration within five working days of the offender’s birthday in violation of
Former Section 290(a)(1)(D) of the California Penal Code. Gonzalez, 551 F.3d at
885, 887; Carmony, 127 Cal. App. 4th at 1071-72. Both courts analyzed the
gravity of the triggering offense, noting that it was regulatory in nature and that
there was no danger to society because the offenders were living at their registered
addresses. Gonzalez, 551 F.3d at 885, 887; Carmony, 127 Cal. App. 4th at 1072-
73.
Poslof, however, was convicted of the more serious offense of failing to
register a new residence. Gonzalez and Carmony are inapposite because Poslof
was residing at an unregistered location. See People v. Nichols, 176 Cal. App. 4th
428, 436 (2009); People v. Meeks, 123 Cal. App. 4th 695, 708 (2004).

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The California Court of Appeal’s decision that Poslof’s sentence was not
grossly disproportionate to his offense was not contrary to, or an unreasonable
application of, clearly established federal law as determined by the U.S. Supreme
Court. See 28 U.S.C. § 2254(d)(1); Lockyer v. Andrade, 538 U.S. 63 (2003).
AFFIRMED.

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