FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROOSEVELT BRIAN MOORE,

Petitioner-Appellant,

v.

M. D. BITER, Warden,

Respondent-Appellee.

No. 11-56846

D.C. No.

2:11-cv-04256-

JAK-FFM

ORDER

Filed February 12, 2014

Before: Harry Pregerson, William A. Fletcher, and

Jacqueline H. Nguyen, Circuit Judges.

Order;

Dissent by Judge O’Scannlain
2 MOORE V. BITER

SUMMARY*

Habeas Corpus

The panel denied a petition for panel rehearing, denied a

petition for rehearing en banc on behalf of the court, and

ordered that no further petitions shall be entertained in a case

in which the panel reversed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition challenging a 254-

year sentence for a juvenile nonhomicide offender. 

Judge O’Scannlain dissented from the denial of rehearing

en banc, joined by Judges Tallman, Bybee, Callahan, Bea, M.

Smith, and Ikuta. Judge O’Scannlain wrote that because the

panel’s opinion—which held that Graham v. Florida, 130 S.

Ct. 2011 (2010), applies retroactivelyon collateral review and

that the state court’s failure to apply Graham to petitioner’s

sentence was contrary to clearly established federal

law—defies the Anti-Terrorism and Effective Death Penalty

Act, creates a circuit split, and threatens frequent and

unjustified intrusions into state sovereignty.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
MOORE V. BITER 3

ORDER

The panel has voted to deny the petitions for rehearing

and rehearing en banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are

DENIED. No further petitions will be entertained.

Judge O’Scannlain’s dissent from denial of rehearing en

banc is filed concurrently with this Order.

O’SCANNLAIN, Circuit Judge, joined by TALLMAN,

BYBEE, CALLAHAN, BEA, M. SMITH, and IKUTA,

Circuit Judges, dissenting from the denial of rehearing en

banc:

Our Court defies AEDPA once again, this time by failing

to distinguish one “life without parole” sentence from

multiple “term-of-years” sentences. A panel of this Court

holds that Graham v. Florida, 560 U.S. 48 (2010), invalidates

the latter, ignoring the contrary holding of the Sixth Circuit,1

1 Compare Moore v. Biter, 725 F.3d 1184, 1187 (9th Cir. 2013), with

Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012), cert. denied, Bunch v.

Bobby, 133 S. Ct. 1996 (2013).
4 MOORE V. BITER

disregarding the views of state courts across the country, and

flouting Graham’s text and reasoning.

I respectfully dissent from our decision not to rehear this

case en banc.

I

Roosevelt Moore appeals the district court’s denial of his

petition for habeas relief under 28 U.S.C. § 2254. Moore

committed a series of forcible rapes and other offenses at the

age of sixteen and was tried as an adult. In 1991, a jury

convicted him of twenty-four crimes, including nine counts

of forcible rape, seven counts of forcible oral copulation, and

two counts of robbery, and also found that he used a firearm

for most of the offenses. He was sentenced to fixed terms of

imprisonment for each offense with enhancements for using

a firearm, to run consecutively. Although none of the

individual sentences exceeded eight years, Moore was

sentenced to 254 years in prison, cumulatively. He cannot be

considered for parole until he serves at least 127 years and

two months.

Nearly two decades later, Moore filed state habeas

petitions, pro se, arguing that his sentence is unconstitutional

in light of Graham. The Los Angeles County Superior Court

summarily denied his petition. The California Court of

Appeal held that Graham does not apply to Moore’s sentence,

and the California Supreme Court summarily denied review.

Our panel, however, granted habeas relief, holding that

Graham applies retroactively to Moore’s sentence and that

the California state courts’ decisions were contrary to
MOORE V. BITER 5

Graham because Moore’s case is materiallyindistinguishable

from Graham’s. Moore, 725 F.3d at 1186.

II

Under AEDPA, federal courts may not grant habeas relief

on a claim that was adjudicated on the merits in state court,

unless the state court’s decision was: (1) “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States;” or (2) “resulted in a decision that was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). A state court decision is “contrary to” Supreme

Court precedent “if it applies a rule that contradicts the

governing law set forth in [the Court’s] cases or if it confronts

a set of facts that are materially indistinguishable from a

decision of [the Supreme] Court and nevertheless arrives at

a result different from [the Court’s] precedent.” Early v.

Packer, 537 U.S. 3, 8 (2002) (internal quotation marks

omitted).

A state court “must apply legal principles established by

a Supreme Court decision when the case falls squarely within

those principles, but not in cases where there is a structural

difference between the prior precedent and the case at issue,

or when the prior precedent requires tailoring or modification

to apply to the new situation.” Moses v. Payne, 555 F.3d 742,

753 (9th Cir. 2009) (quotation marks omitted). Unless the

Supreme Court has “squarely address[ed]” an issue or

established a principle that “clearly extend[s] to a new

context,” there is no “clearly established Supreme Court

precedent addressing the issue.” Id. at 754 (internal quotation

marks omitted; second alteration in original).
6 MOORE V. BITER

The Court has consistently warned lower courts, and this

court in particular, to avoid defining “clearly established” law

too broadly. See, e.g., Parker v. Matthews, 132 S. Ct. 2148

(2012); Howes v. Fields, 132 S. Ct. 1181 (2012); Wright v.

Van Patten, 552 U.S. 120 (2008); Carey v. Musladin,

549 U.S. 70 (2006).

A

In Graham, the Supreme Court announced that the

Constitution does not permit “a juvenile offender to be

sentenced to life in prison without parole for a nonhomicide

crime.” 560 U.S. at 52–53. The Court’s “categorical rule”

was meant to give “juvenile nonhomicide offenders a chance

to demonstrate maturity and reform.” Id. at 79.

To support its conclusion that the state court’s decision

was contrary to Graham, the panel reasoned that “Moore’s

sentence of 254 years is materially indistinguishable from a

life sentence without parole because Moore will not be

eligible for parole within his lifetime.” Moore, 725 F.3d at

1191. That Moore’s sentence was not likely to be completed

during his lifetime, even if not labeled a “life sentence,” did

not distinguish it from Graham. Id. at 1191–92. 

Furthermore, that Moore committed serious crimes did not

distinguish his case from Graham, because the Supreme

Court “expressly rejected a case-by-case approach” that

would take account of factual differences between crimes. Id.

at 1192–93.

And there the panel’s opinion stops, failing to confront

the most meaningful distinction between Moore’s case and

Graham: Moore’s term of imprisonment is composed of over

two dozen separate sentences, none longer than eight years;
MOORE V. BITER 7

Graham’s is one sentence, “life without parole.” Because the

Supreme Court explicitly stated thatGrahamconcerned “only

those juvenile offenders sentenced to life without parole

solely for a nonhomicide offense,” 560 U.S. at 62, it “did not

clearly establish that consecutive, fixed-term sentences for

juveniles who commit multiple nonhomicide offenses are

unconstitutional when theyamount to the practical equivalent

of life without parole,” Bunch, 685 F.3d at 550.

If that express limitation on Graham’s holding were not

enough, Graham’s reasoning makes clear that the Supreme

Court did not squarely address aggregate term-of-years

sentences. Beginning with “objective indicia of national

consensus,” the Court noted that there were “123 juvenile

nonhomicide offendersservinglifewithout parole sentences,”

and “only 11 jurisdictions nationwide in fact impose life

without parole sentences on juvenile nonhomicide

offenders—and most of those do so quite rarely.” Graham,

560 U.S. at 62–64. Thus, “[t]he sentencing practice now

under consideration is exceedingly rare.” Id. at 67.

But, to reach that conclusion, the Court did not consider

the prevalence of sentences like Moore’s—lengthy term-ofyears sentences adding up to de facto life imprisonment. See

id. at 113 n.11 (Thomas, J., dissenting) (“[T]he Court counts

only those juveniles sentenced to life without parole and

excludes from its analysis all juveniles sentenced to lengthy

term-of-years sentences (e.g., 70 or 80 years’

imprisonment).”). Nor was Moore counted among those 123

juvenile nonhomicide offenders. See P. Annino et al.,

Juvenile Life without Parole for Non–Homicide Offenses:

Florida Compared to Nation 14–15 (Sept. 14, 2009) (listing

four such offenders incarcerated in California for crimes of

kidnapping and/or robbery).
8 MOORE V. BITER

If the Court did not consider aggregate term-of-years

sentences adding up de facto to life without parole, it cannot

have squarely addressed their constitutionality. See Graham,

560 U.S. at 124 (Alito, J., dissenting) (“Nothing in the

Court’s opinion affects the imposition of a sentence to a term

of years without the possibility of parole.”). As our sister

circuit held: The Supreme Court “did not analyze sentencing

laws or actual sentencing practices regarding consecutive,

fixed-term sentences for juvenile nonhomicide offenders. 

This demonstrates that the Court did not even consider the

constitutionality of such sentences, let alone clearly establish

that they can violate the Eighth Amendment’s prohibition on

cruel and unusual punishments.” Bunch, 685 F.3d at 552.2

If the Court has not squarely addressed the

constitutionality of aggregate term-of-years sentences, the

state court’s determination that Moore’s sentence is not

unconstitutional cannot be contrary to clearly established

federal law.

B

Unsurprisingly, in the absence of an express holding

regarding such sentences, “courts across the country are split

over whether Graham bars a court from sentencing a juvenile

nonhomicide offender to consecutive, fixed terms resulting in

an aggregate sentence that exceeds the defendant’s life

expectancy.” Id. Some have held that Graham prohibits

2 The Court’s analysis of objective indicia does not dictate its Eighth

Amendment jurisprudence, of course. See Graham, 560 U.S. at 67. But

we should not hold, and we should certainly not force state courts to

assume, that the Court’s “clearly established” holdings sweep well beyond

such analysis.
MOORE V. BITER 9

aggregate term-of-years sentences that amount to the

functional equivalent of life without parole. See, e.g., People

v. Caballero, 282 P.3d 291, 294–95 (Cal. 2012); People v.

Rainer, No. 10CA2414, 2013 WL 1490107 (Colo. Ct. App.

Apr. 11, 2013); State v. Null, 836 N.W.2d 41, 73 (Iowa

2013).3 More have held that Graham does not prohibit

aggregate term-of-years sentences such as Moore’s. See, e.g.,

Bunch, 685 F.3d at 552–53; State v. Kasic, 265 P.3d 410,

415–16 (Ariz. Ct. App. 2011); Walle v. State, 99 So. 3d 967,

971 (Fla. Ct. App. 2012); Henry v. State, 82 So. 3d 1084,

1089 (Fla. Ct. App. 2012); State v. Brown, 118 So. 3d 332,

341–42 (La. 2013); State v. Merritt, No. M2012-00829-CCAR3CD, 2013 WL 6505145, at *5 (Tenn. Crim. App. Dec. 10,

2013).

To be sure, in many of the cases refusing to extend

Graham, the sentence at issue left some possibility, however

slight, that the prisoner might eventually be released. But

nothing in their reasoning turned on such possibility. See,

e.g., Brown, 118 So. 3d at 341 (“[N]othing in Graham . . .

applies to sentences for multiple convictions, as Graham

conducted no analysis of sentences for multiple convictions

and provides no guidance on how to handle such sentences.”).

3 None of those courts were required, as the panel was, to give deference

under AEDPA to the contrary decision of a state court. Thus, none of

them held, as the panel’s opinion does, that the unconstitutionality ofsuch

sentences was “clearly established” by Graham. Moreover, even courts

that have applied Graham to aggregate term-of-years sentences have

recognized they are extending the case beyond its “clearly established”

holding. See Rainer, 2013 WL 1490107, at *10; Null, 836 N.W.2d at 67;

see also Caballero, 282 P.3d at 296 (Werdegar, J., concurring, joined by

Liu, J.).
10 MOORE V. BITER

The existence of such a split is good evidence that the

California courts’ determination here—Graham does not

apply to Moore’s sentence—is not contrary to “clearly

established” federal law. Cf. Evenstad v. Carlson, 470 F.3d

777, 783 (8th Cir. 2006) (“When the federal circuits disagree

as to a point of law, the law cannot be considered ‘clearly

established’ under 28 U.S.C. § 2254(d)(1).”); Boyd v.

Newland, 467 F.3d 1139, 1152 (9th Cir. 2006) (holding that

“in the face of [out-of-circuit] authority that is directly

contrary” to our own interpretation of Supreme Court

precedent, “and in the absence of explicit direction from the

Supreme Court,” we cannot hold that the state courts’

analysis “was contrary to, or involved an unreasonable

application of, Supreme Court precedent.”).

Were the panel required to confront the constitutionality

of Moore’s sentence on direct review, or on collateral review

of a federal sentence, picking one side of the dispute would

have been necessary. But AEDPA precludes federal courts

from settling such disputes on collateral review of a state

sentence, at least without a persuasive explanation of how so

many courts erred so obviously. The panel’s opinion neither

acknowledges the dispute nor explains how the panel divined

a clearly established holding of the Supreme Court in the face

of such widespread disagreement. Instead, it concedes a

tangentially related split over how Graham applies “to

lengthy term-of-years sentences that provide some possibility

of parole.” Moore, 725 F.3d at 1194 n.6.

C

An equally telling omission: the panel offers no

justification for creating a circuit split, acting instead as

though it has not done so. The only argument the opinion
MOORE V. BITER 11

provides for ignoring the Sixth Circuit’s well-reasoned and

thorough opinion is that the facts are different. Id. But any

factual distinction—Bunch will be at least 95 years old when

he is eligible for parole, Bunch, 685 F.3d at 551 n.1, whereas

Moore will be at least 144—does not make a meaningful

difference. Bunch, like Moore, will not be eligible for parole

until well beyond his life expectancy.

4

Moreover, nothing in the Sixth Circuit’s opinion turns on

the possibility that Bunch might outlive his sentence. Our

sister circuit acknowledged that Bunch’s sentence “may end

up being the functional equivalent of life without parole.” 

Bunch, 685 F.3d at 551. Such was the sentencing judge’s

goal: “I just have to make sure that you don’t get out of the

penitentiary. I’ve got to do everything I can to keep you

there, because it would be a mistake to have you back in

society.” Id. at 548. Nonetheless, the court determined that

Bunch’s sentence was not contrary to clearly established

federal law, because “in Graham, the Court said that a

juvenile is entitled to . . . a ‘realistic opportunity to obtain

release’ if a state imposes a sentence of ‘life.’” Id. at 551

(quoting Graham, 560 U.S. at 82). “Graham’s holding” does

not apply, therefore, “to a juvenile offender who received

consecutive, fixed-term sentences.” Id.; see also id. at 548

(The Supreme Court “did not address juvenile offenders, like

Bunch, who received consecutive, fixed-term sentences for

committing multiple nonhomicide offenses.”).

The panel cannot evade the force of Bunch’s reasoning by

noting an insignificant factual distinction, which our sister

4

See State v. Bunch, No. 06 MA 106, 2007 WL 4696832, at *5 (Ohio

Ct. App. Dec. 21, 2007) (Bunch “indicates, with citation to authorities,

that his life expectancy is only 70 years.”).
12 MOORE V. BITER

circuit assumed away. Yet the panel’s opinion sets forth no

other argument.

III

Respect for the California courts, for our sister circuit,

and for courts across the country that have declined to apply

Graham to sentences such as Moore’s should have compelled

the panel to declare the reasons why it found their analysis

unpersuasive. Instead, the panel’s opinion ignores their

arguments.

But the states encompassed by our Circuit cannot ignore

the opinion’s holding, which requires them to ask:

At what number of years would the Eighth

Amendment become implicated in the

sentencing of a juvenile: twenty, thirty, forty,

fifty, some lesser or greater number? Would

gain time be taken into account? Could the

number vary from offender to offender based

on race, gender, socioeconomic class or other

criteria? Does the number of crimes matter?

Henry, 82 So. 3d at 1089. Also, “What if the aggregate

sentences are from different cases? From different circuits?

From different jurisdictions? If from different jurisdictions,

which jurisdiction must modify its sentence or sentences to

avoid constitutional infirmity?” Walle, 99 So. 3d at 972.

Without authority to do so, the panel’s opinion would

force all the states in our Circuit to confront those questions;

the opinion forbids them from “apply[ing] Graham as it is

written,” yet gives them no other “tools to work with,” Henry,
MOORE V. BITER 13

82 So. 3d at 1089, when answering. And each of their

answers could potentially be overruled by our Court as

contrary to the “clearly established” rule of Graham.

IV

As the Supreme Court has reminded us yet again,

“AEDPA recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication

of federal rights.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013). 

We should never “lightly conclude that a State’s criminal

justice system has experienced the ‘extreme malfunctio[n]’

for which federal habeas relief is the remedy.” Id. (alteration

in original) (quoting Harrington v. Richter, 131 S. Ct. 770,

786 (2011)). The panel has apparently concluded, without

explanation, that not only the California court, but also the

Sixth Circuit and courts across the country have experienced

such an extreme malfunction. This “judicial disregard for the

sound and established principles” that govern issuance of the

writ of habeas corpus threatens to undermine “confidence in

the writ and the law it vindicates.” Richter, 131 S. Ct. at 780.

Because the panel’s opinion defies AEDPA, creates a

circuit split, and threatens frequent and unjustified intrusions

into state sovereignty, I respectfully dissent from our Court’s

regrettable failure to rehear this case en banc.