Robert m. Foster, Deputy Attorney General, and Douglas P. Danzig, Deputy Attorney General, San Diego, California, for the respondents-appelles.

OPINION

PAEZ, Circuit Judge:

Appellant Leandro Andrade was convicted in the Superior Court of California of two counts of petty theft for shoplifting a total of nine videotapes from two K-Mart stores. California generally treats such offenses as misdemeanors, each punishable by up to six months in county jail and up to a $1,000 fine. However, because Andrade had been convicted of several prior offenses -- all non-violent -- his petty thefts were first enhanced to felonies under California Penal Code � 666, and then enhanced again to third and fourth strikes under California's Three Strikes and You're Out Law, California Penal Code �� 667 and 1170.12 ("the Three Strikes law"). As a result, Andrade, a non-violent recidivist who twice shoplifted merchandise worth a total of $153.54, received a life sentence in prison with no possibility of parole for 50 years.

In this appeal from the denial of his habeas petition under 28 U.S.C. � 2254, Andrade argues that his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment. Four justices of the United States Supreme Court have agreed that the "unique quirk " in California's Three Strikes law that permits misdemeanor conduct to be punished with severe indeterminate sentences raises a substantial Eighth Amendment question. Riggs v. California, 525 U.S. 1114, 119 S. Ct. 890 (1999) (memorandum opinion by Justice Stevens, joined by Justices Souter and Ginsburg, respecting the denial of the petition for writ of certiorari).¹

¹Riggs concerned an Eighth Amendment challenge by a recidivist defendant sentenced to 25 years to life after stealing a bottle of vitamins

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