Cornel Ray JOSHUA, Petitioner-Appellant, v. D.G. ADAMS, Warden, Respondent-Appellee, 231 F. App'x 592

MEMORANDUM Petitioner Cornell Ray Joshua appeals the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition. For the reasons that follow, we affirm the district court. Pursuant to California’s Three Strikes law, Joshua was sentenced to twenty-five years to life for stealing two bottles of alcohol, in violation of California Penal Code § 666. On appeal, Joshua argues that his sentence violates the Eighth Amendment’s proscription against “cruel and unusual punishments” because he suffers from paranoid schizophrenia.

Because Joshua filed his petition for collateral review after April 24, 1996, he must satisfy the Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA) onerous standard of review. See Edwards v. Lamarque, 475 F.3d 1121, 1125 (9th Cir. 2007) (en banc). We may not grant Joshua habeas relief unless we find that the state court’s last reasoned decision was contrary to or an unreasonable application of “clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); Renderos v.

Ryan, 469 F.3d 788, 793 (9th Cir.2006). Joshua contends that the California Court of Appeal failed to apply clearly established federal law based on the Supreme Court’s decisions in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (death penalty for crimes committed as juvenile unconstitutional), Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004) (in death penalty context, “[i]mpaired intellectual functioning is inherently mitigating”), and Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of mentally retarded individual unconstitutional).

However, those cases dealt with capital sentences and are therefore distinguishable. Absent a Supreme Court decision clearly establishing that mental illness renders a non-capital sentence unconstitutional, we are unable to grant Joshua habeas relief. Joshua also contends that the state court ignored his mental illness, which rendered him unable to control his behavior, and his sentence was actually a penalty for his illness and is therefore contrary to clearly established federal law, as set forth in Robinson v.

California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (criminalizing addiction unconstitutional). This contention is without merit because, in contrast to Robinson, where a statute specifically criminalized addiction, Joshua was convicted of a criminal offense separate and distinct from his “status” as a schizophrenic. Joshua’s contention may have been appropriate as part of his defense at trial, but is misplaced in our habeas review. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. .

The issue in this case is not whether Joshua’s sentence is grossly disproportionate to his crimes, but rather whether the state court’s conclusion that it was not is contrary to clearly established Supreme Court law. . Because Joshua also raises an uncertified issue, we construe his argument as a motion to expand the Certificate of Appealability, and we deny the motion. See 9th Cir. 22-l(e); Hiivalav. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).