Eric Jeffrey Cowan v. JOSIE GASTELO, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC JEFFREY COWAN,
Petitioner-Appellant,
v.
JOSIE GASTELO, Warden,
Respondent-Appellee.
No. 18-56681
D.C. No. 3:17-cv-01994-WQH-
BLM
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
California state prisoner Eric Jeffrey Cowan appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We have
jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s denial of
a habeas corpus petition, see Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011),
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-56681
and we affirm.
Cowan, who is serving an indeterminate term of life imprisonment under
California’s Three Strikes law, argues that the state trial court violated the Equal
Protection Clause by denying his petition for a recall of sentence under the Three
Strikes Reform Act of 2012. The Three Strikes Reform Act of 2012 sets forth the
threshold eligibility requirements for resentencing and provides that inmates are
ineligible for resentencing where, like Cowan, their commitment offense was a
“serious and/or violent” felony. See Cal. Penal Code § 1170.126. The state court’s
conclusion that this classification scheme has a rational basis was neither contrary
to, nor based upon an unreasonable application of, clearly established Supreme
Court law. See 28 U.S.C. § 2254(d)(1); Heller v. Doe, 509 U.S. 312, 319-20
(1993) (where a law neither burdens a fundamental right nor targets a suspect
class, it survives an Equal Protection challenge “if there is any reasonably
conceivable state of facts that could provide a rational basis for the classification”).
Cowan’s claim that the state court denied him due process by failing to
conduct a hearing is not cognizable because Cowan failed to raise it before the
district court. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
AFFIRMED.

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