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Even as California Attorney General Bill Lockyer vows to appeal a 9th U.S. Circuit Court of Appeals decision striking down a Three Strikes sentence as cruel and unusual, circuit judges have scheduled a pair of cases that may extend the ruling to other cases. The decision earlier this month in Andrade v. California, 01 C.D.O.S. 9423, is the tip of an Eighth Amendment iceberg. “ Andrade was essentially a lead case,” 9th Circuit staff attorney Susan Gelmis said. Several other challenges to the state’s Three Strikes law have been filed pro se by California inmates. Some were assigned to panels but stayed pending Andrade‘s outcome. Because it was a fact-specific case, more cases would help establish guidelines for determining when sentences violate the Constitution. University of Southern California Law Professor Erwin Chemerinsky, who argued Andrade, has agreed to argue the new cases as well, he said last week. Both cases have been scheduled for Dec. 12. The move comes as Lockyer’s office announced it would forgo asking for a rehearing at the 9th Circuit, instead appealing the decision directly to the U.S. Supreme Court. “We wanted to move as quickly as possible for U.S. Supreme Court review given the overarching importance of this case on California sentencing law,” Lockyer spokeswoman Hallye Jordan said. The AG’s office isn’t the only one moving quickly. A 9th Circuit panel, consisting of liberal judges Stephen Reinhardt, A. Wallace Tashima and Marsha Berzon, has ordered briefing on the impact of their colleagues’ ruling in Andrade to be filed — by fax if necessary — by Dec. 5. Arguments will follow the next week. Leandro Andrade was convicted of petty theft for twice stealing a total of nine videotapes from a Southern California Kmart. Judge Richard Paez wrote, for a 2-1 panel, that sending a man to jail with a sentence that is “grossly disproportionate” to the crime is unconstitutional. Chemerinsky said he will continue to represent Andrade if the case goes to the U.S. Supreme Court. The two new cases, Brown v. Mayle, 99-17261, and Bray v. Ylst, 99-56197, are similar to Andrade in that each third strike was the result of a petty theft conviction, normally a misdemeanor. It is that “quirk” — the doublecounting of the charge, first as a felony and then as a third strike — which has led some Supreme Court justices to voice concern over California’s version of the law. Earnest Bray Jr. has a long rap sheet with several convictions for armed robbery — a marked difference from Andrade, whose most serious priors were for nonviolent burglaries. Bray was convicted in 1994 of shoplifting three videotapes from a Wherehouse store, a crime he blames on his use of illegal drugs. A state panel cited his recidivist behavior in denying his appeal. Richard Brown was convicted in 1995 for stealing a car alarm from a Walgreens store. His prior strikes were for crimes that occurred in 1976 and 1984. Both men were sentenced to 25 years to life as opposed to Andrade’s 50 to life. The road to Paez’s ruling, which led the Los Angeles Times to commend the 9th Circuit for having the “backbone” to beat back part of Three Strikes, began when what had been just another pro se appeal was calendared with one of the nation’s premiere constitutional law scholars agreeing to argue. Chemerinsky believes the court asked him to step in after he represented Stanley Durden in Durden v. California, 00-6479, a Three Strikes case that was appealed to the U.S. Supreme Court. Earlier this year, two justices dissented from a decision not to hear that case, wondering why the 9th Circuit had yet to take up the issue. Andrade had filed a brief touching on many of the issues adopted by Paez. Even though he sought counsel through the court’s pro bono program, the court initially denied his request before reversing course and appointing Chemerinsky. Within days after Andrade was issued, the panel assigned to hear Bray and Brown asked Chemerinsky to represent those two inmates in their pending pro se Three Strikes appeals. If the panel publishes its decisions in those cases, it could clarify Andrade and possibly give the Supreme Court a choice of Three Strikes rulings to review. The two also raise other claims, which the panel may or may not tackle, including whether Three Strikes is uniformly applied and whether felonies committed before the law was enacted can be counted as strikes.

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