Santos L. REYES, Petitioner-Appellant, v. Jill BROWN, Warden, Respondent-Appellee, 399 F.3d 964

PREGERSON, Circuit Judge: California state prisoner Santos L. Reyes brought this 28 U.S.C. § 2254 habe-as action challenging his sentence under California’s “Three Strikes” law. Reyes was convicted of perjury for making misrepresentations on a California Department of Motor Vehicles (“DMV”) driver’s license application. The perjury conviction was Reyes’ third strike. He was sentenced to twenty-six years to life. Reyes contends that his punishment violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The district court denied Reyes’ habeas petition.

Because we conclude that the facts necessary to evaluate Reyes’ petition were not sufficiently developed before the district court — and, therefore, are not sufficiently developed in the record before us — we vacate the district court’s denial of Reyes’ petition and remand to the district court for further proceedings. I. On September 18, 1997, Reyes entered the DMV on Waterman Avenue in San Bernardino, California. He purportedly filled out an application for a driver’s license under the name of his cousin, Miguel Soto, who purportedly knew how to drive but not how to read.

Reyes signed the application, which purportedly stated that the information was being provided under penalty of perjury. After Reyes signed the application, DMV employee Debra Alexander gave Reyes two copies of the written driver’s license test. Alexander suspected that Reyes was cheating on the exam by using a “crib sheet.” She confiscated the two tests from Reyes and began filling out paperwork related to Reyes’ alleged cheating. Meanwhile, Reyes left the DMV building. Alexander contacted California Highway Patrol Officer José Lopez, who was stationed at the DMV.

Officer Lopez followed Reyes, who was walking away. After catching up with Reyes, Officer Lopez patted-down Reyes and handcuffed him. Reyes cooperated with Officer Lopez and voluntarily admitted that he had attempted to take the written driver’s license test for Soto. The encounter was without violence. On March 2, 1998, Reyes was arraigned on an Amended Information, charging him with one count of perjury in violation of California Penal Code § 118.

Reyes qualified for the Three Strikes enhancement because of two prior convictions: one as a juvenile in 1981 for residential burglary in violation of California Penal Code § 459; and one in 1987 for armed robbery in violation of California Penal Code § 211. The State offered Reyes a deal of four years imprisonment- in exchange for a guilty plea to the perjury charge, but Reyes rejected the plea deal and exercised his constitutional right to a jury trial. On March 5, 1998, a jury convicted Reyes of the perjury charge and found the Three Strikes special allegations true.

On April 2, 1998, the trial court sentenced Reyes to an indeterminate term of twenty-six years to life. Reyes appealed the judgment, claiming, among other things, that his sentence violated the Eighth Amendment’s prohibition on cruel and unusual punishment. On June 9, 1999, the California Court of Appeal affirmed Reyes’ conviction and sentence. On September 1, 1999, the California Supreme Court denied Reyes’ petition for review. On July 26, 2000, Reyes filed a 28 U.S.C. § 2254 habeas petition in the United States District Court for the Central District of California.

On September 21, 2000, Magistrate Judge Charles F. Eick issued a report and recommendation urging that Reyes’ petition be dismissed with prejudice. On October 12, 2000, District Judge Virginia Phillips adopted the report and recommendation and dismissed Reyes’ petition. On October 31, 2000, Reyes timely filed a notice of appeal and a request for certificate of appealability. On May 2, 2001, we granted Reyes a certificate of appealability on the limited issue whether his Three Strikes sentence violated 'the Eighth Amendment. II.

We review de novo a district court’s decision to grant or deny a 28 Ü.S.C. § 2254 habeas petition. See Rios v. Garcia, 390 F.3d 1082, 1084 (9th Cir.2004). The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub L. No. 104-132, 110 Stat. 1214, govern Reyes’ habeas petition.

Under AEDPA, habeas relief is proper if the state court’s adjudication of the merits of the habeas claim resulted in a decision that was “ ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Rios, 390 F.3d at 1084 (quoting 28 U.S.C. § 2254(d)). “A state court’s decision is ‘contrary to’ clearly established federal law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases[,]’ or (2) ‘confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision and nevertheless arrives at a [different] result.’ ” Id. (quoting Williams v.

Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “A state court’s decision is an unreasonable application of clearly established federal law if ‘the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). III. Applying AEDPA in Ramirez v. Castro, 365 F.3d 755 (9th Cir.2004), we recognized that Eighth Amendment challenges to Three Strikes sentences remain viable in certain “exceedingly rare” cases.

Id. at 756, 770; see also id. at 763 (noting that the Eighth Amendment’s “ ‘proportionality principle’ ... is applicable ‘only in the “exceedingly rare” and “extreme” case’ ” (quoting Lockyer v. Andrade, 538 U.S. 63, 72-73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003))). We applied the Supreme Court’s analysis in Solem v.

Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to examine as an initial matter “whether [the petitioner’s] extreme sentence is justified by the gravity of his most recent offense and criminal history.” Ramirez, 365 F.3d at 768 (holding that this inquiry gives rise to an inference of gross disproportionality, which then calls for in-trajurisdictional and interjurisdictional analyses). We concluded that Ramirez’ sentence did not match the gravity of the triggering offense, given that his most recent offense consisted of the nonviolent shoplifting of a VCR. See id.

Our reasoning that Ramirez’ conduct did not “threaten[ ] ... grave harm to society” applies here, id. (quoting Harmelin v. Michigan, 501 U.S. 957, 1003, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (Kennedy, J., concurring)), where Reyes’ act of falsifying a driver’s license application was not a crime targeted at another individual. We next considered Ramirez’ criminal history to determine whether the extreme sentence matched his prior offenses. See id. at 768-769.

Ramirez had been twice convicted of “second-degree robbery, i.e., willfully and unlawfully taking personal property ‘by means of force and fear’ in violation of California Penal Code §§ 211, 212.5(c), and 213(a)(2), a ‘serious felony’ under § 1192.7(c)(19).” Id. at 757. The first strike involved shoplifting from a grocery store, after which a get-away car driven by a third person ran over the store security guard’s foot. See id. at 757, 768. In the second offense, Ramirez pushed a security guard away with his open hand as he ran out of K-Mart with stolen goods. See id. at 757, 768.

Ramirez was found to have committed these offenses with “force” and was prosecuted for and convicted of “second-degree robbery,” as opposed to “petty theft” (Cal.Penal Code §§ 484, 488) or “second-degree commercial robbery” (Cal.Penal Code §§ 459-61) because of the physical contact with the security guards. Id. at 768. Ramirez served very little time in prison for these two offenses. See id. at 769. In the instant case, Reyes earned his first strike for residential burglary, in violation of California Penal Code § 459, when he was seventeen years old.

He was sentenced to two years at the California Youth Authority and was paroled after one year. Reyes’ age and the fact that the offense appeared to be nonviolent — for which he was only required to serve two years at California Youth Authority— weigh against finding this to be a “grave” offense sufficient to justify his twenty-six years to life sentence. The sticking point in this case comes from Reyes’ 1987 conviction for armed robbery in violation of California Penal Code § 211. He was sentenced to nine years of which he served five.

The record does not reveal the circumstances under which this felony was committed. This conviction represents a point of departure from Ramirez, given the nature of the offense and the nine-year prison term to which Reyes was sentenced. However, in Ramirez, even though the defendant was convicted of two “serious felonies,” we considered the factual specifics of Ramirez’ conduct. Ramirez, 365 F.3d at 767 (looking past the

definitions of the crimes of which Ramirez was convicted to determine whether Ramirez’ conduct involved violence or was particularly serious). Although Ramirez was twice convicted of robbery “by force,” we minimized the gravity of the offenses by noting that in the first strike offense a third person had run over the security guard’s foot, resulting in a “minor injury.” Id. And in the second strike offense, Ramirez pushed away the security guard with his hand on his way out the door. See id.

In Solem, the Supreme Court found an Eighth Amendment violation where the habeas petitioner was sentenced to life without parole for “uttering” a false check under a recidivist statute. 463 U.S. at 279-80, 103 S.Ct. 3001. He had a history of six nonviolent felonies, including three separate third-degree burglaries, obtaining money under false pretenses, grand larceny, and driving while intoxicated. See id. In considering the gravity of his offenses, the Court noted that “nonviolent crimes are less serious than crimes marked by violence or the threat of violence.” Id. at 292-93, 103 S.Ct. 3001.

The Court concluded that “his prior offenses, although classified as felonies, were all relatively minor. All were nonviolent and none was a crime against a person.” Id. at 296-97, 103 S.Ct. 3001 (emphasis added). In the instant case, but for Reyes’ armed robbery conviction, Reyes would appear to have a plausible case for relief under Ramirez. Unfortunately, the circumstances under which Reyes committed the robbery are not sufficiently developed in the record for us to determine whether the offense was a “crime against a person” or involved violence.

Moreover, given that Reyes’ first strike was earned as a juvenile, the gravity of his offenses in total rests heavily on his 1987 armed robbery conviction. More facts, such as those on which we relied in Ramirez, would help determine the true weight of the offense beyond the label of the crime (“armed robbery”) of which Reyes was convicted. Accordingly, we vacate the district court’s denial of Reyes’ habeas petition and remand for the district court to ■ develop the record further and to determine in the first instance whether Reyes’ is entitled to relief under Ramirez.

The panel shall retain jurisdiction over this matter. VACATED and REMANDED. . The parties dispute whether the application Reyes signed was in English or Spanish and whether it stated that the information being provided was under penalty of perjury. For example, the State maintains that Reyes “filled out an English language application .... which stated the information was being provided under penalty of perjury.” See Ap-pellee's Br. at 4-5, available at 2001 WL 34355184.

In contrast, Reyes maintains that the application "was in Spanish,” that he "did not know that he was signing under penalty of perjury,” that he "did not know what 'perjury' meant,” and that "nothing on” the Spanish application says " 'I have read and understood the above.’ " See Appellant's Opening Br. at 5-6, 8, available at 2001 WL 34355185. We need not resolve this dispute because it is not germane to our resolution of the instant appeal. . Reyes subsequently filed two requests to broaden the certificate of appealability.

We deny those requests in a separate unpublished order filed .contemporaneously with this opinion. . We note that the California Attorney General declined to seek further review of our decision in Ramirez, stating that he was acting in “the interest of justice” and calling Ramirez an “exceedingly rare case.” Henry Wein-stein, Lockyer Gives Up Three-Strikes Case, L.A. TIMES, Apr. 30, 2004, at B6, available at 2004 WL 55909787. . Signing someone else’s name on a driver's license application is specifically proscribed by the California legislature as a misdemean- or. See Cal.

Veh.Code § 20 (“It is unlawful to use a false or fictitious name, or to knowingly conceal any material fact in any document filed with the [DMV].”); id. § 40000.5 (classifying a Vehicle Code § 20 violation as a misdemeanor). The offense does not, however, preclude prosecution of the defendant under Penal Code § 118 for felony perjury, instead of the misdemeanor Vehicle Code

section that more accurately proscribed Reyes' conduct, see People v. Molina, 5 Cal.App.4th 221, 231, 6 Cal.Rptr.2d 736 (1992) (holding that "Vehicle Code

section 20 does not preclude perjury prosecutions for those filing false license applications under oath at the DMV”), and in this case, Reyes was convicted after trial of felony perjury. The fact that the California legislature deemed making false statements on a driver's license application to be a misdemeanor reflects that Reyes' offense "is viewed by society as among the less serious offenses.” Solem, 463 U.S. at 296, 103 S.Ct. 3001 (internal quotations omitted). .

The little detail in the record suggests that Reyes was “at some guy’s house with some friends and ... walked out with a radio that didn't belong to" him. 3/4/98 Trial Tr. at 120:8-9. . Reyes also has a history of “non-strike” offenses including petty theft; being under the influence of a controlled substance; misdemeanor DUI; and misdemeanor battery. None of these offenses appear to have involved violence, and unlike the criminal histories of the defendant in Ewing v.

California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), and the petitioner in Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144, Reyes’ criminal history became indisputably less serious over time, see Ramirez, 365 F.3d at 765-767 (describing Ewing’s and An-drade's criminal histories). . The paucity of detail in the record indicates that this offense may have been non-violent.

Compare 3/4/98 Trial Tr. at 120:17-24 (suggesting that Reyes “was stealing" — “not robbing” but “had a knife” on his person), with Rios, 390 F.3d at 1086 (distinguishing Ramirez because, during the commission of his triggering offense, “Rios struggled with the loss prevention officer and tried to avoid apprehension” and, during his prior robbery “strikes,” Rios’ "cohort used a knife” (emphasis added)).

The dissent argues that we are being unfaithful to Ramirez because Ramirez "focuses on the presence of a weapon, not whether, how, or where -it was or was not used " and "Reyes ... himself, carried the weapon.” Dissent at 971 n. 1 (emphasis in original). With respect to our able colleague, we believe that he is misreading Ramirez.

Ramirez never refers to “the presence of a weapon.” Rather, each time Ramirez refers to weapons, it refers exclusively to whether weapons were “involved.” 365 F.3d at 757, 768, 775; see also Rios, 390 F.3d at 1086 (noting that Ramirez’ "prior convictions were for non-violent robberies in which no weapons were involved " (emphasis added)). We understand Ramirez' use of the word "involved” to mean "engaged or employed.” Webster’s Encyclopedic Unabridged Dictionary of the English Language 1005 (rev. ed.1996) (defining "involve” as "to engage or employ”).

Surely, involving, engaging, or employing a weapon constitutes more than the mere presence of an unused weapon. The dissent also asserts that "Rios arguably weighs in favor of finding Reyes’ punishment justified” because "in Rios ... Rios' cohort used a weapon,” whereas here "Reyes ... himself, carried the weapon.” Dissent at 971 n. 1 (emphasis added). We think our colleague misses the point.

If Reyes (or an accomplice, if any) actually used a knife in the commission of his 1987 robbery, "an inference of gross disproportionality” would not be raised because it is the use of a weapon that " ’threaten[s] to cause grave harm.’ ” Ramirez, 365 F.3d at 765, 768 (quoting Harmelin, 501 U.S. at 1002, 111 S.Ct. 2680 (Kennedy, J., concurring)). Would our dissenting colleague hold that a shoplifter caught with a small pocket-knife in his pocket necessarily committed a violent crime? In this case, the record is entirely unclear as to whether the conduct underlying Reyes' 1987 conviction involved anything more. .

The dissent labels Reyes a “career criminal'' whose “criminal history reflects the very type and degree of recidivism the Supreme Court recognizes Three Strikes laws were properly intended to address.” Dissent at 971 (citing Rummel v. Estelle, 445 U.S. 263, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)). But Reyes is no more a career criminal than the petitioner in Solem, who the Supreme Court held was entitled to habeas relief under the Eighth Amendment.

Compare Dissent at 971 (noting that, between 1981 and 1997, Reyes committed six crimes) with Solem, 463 U.S. at 279-80, 103 S.Ct. 3001 (discussing Solem's six convictions for third-degree burglary, obtaining money under false pretenses, grand larceny, and driving while intoxicated). . Our suspicion that Reyes' twenty-six years to life sentence may be grossly disproportionate to the gravity of his triggering offense and criminal history is also supported by the fact that the State offered Reyes a deal of four years imprisonment in exchange for a guilty plea to the triggering perjury charge.

By offering Reyes such a heavily discounted sentence, an inference may properly be raised that the State did not view Reyes as a “danger to society” and that the State did not feel "the need to counter his threat with incapacitation.” Andrade, 538 U.S. at 81, 123 S.Ct. 1166 (Souter, J., dissenting).