F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

R O O S E V E L T B R

I A N M O O R

E , Petitioner-Appellant ,

v.
M. D

. B I T E R , W arden, Respondent-Appellee

. No. 11-56846

D.C. No. 2 :11-cv-04256- J AK-F F M

O RDER

F iled F ebruary

12, 2014

B efore: Harry

Preg erson, W illiam A. F letcher, and J acqueline H. Ng

uy en, Circuit J udg es. Order; Dissent by

J udg e O’ScannlainM O O R E V

. B I T E R 2

SUMMARY *

Habeas Corpus The panel denied a petition f or panel rehearing , denied a petition f or rehearing en banc on behalf of the cour t , a nd ordered that no further petitions shall be entertained in a case in which the panel reversed the district c o u r t ’s denial o f a 28 U.S.C. § 2254 h abeas corpus petition challeng i n g a 254- y ear sentence for a juvenile nonhomicide offender.

J udg e O ’Scannlain dissented from the denial of rehearing
en banc, joined by J udg es Tallman, B y bee, Callahan, B ea, M. Smith, and I k

uta. J udg e O’Scannlain wrote that because the panel’s opinion—which held that Graham v. Florida , 130 S. Ct. 2011 (2010), applies retroactively on co llateral review a nd that the state cour t ’s failure to apply Graham to petitioner’s
s e ntence was contrary to clearly established federal law—defies the A nti-Terrorism and Effective Death Penalty Act, creates a circuit split, and threaten s f r e quent a

nd unjustified intrusions into state sovereig nty

.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.M O O R E V

. B I T E R 3

ORDER

The p anel has v oted to d eny the petitions for rehearing and rehearing

en banc.

The full court was advised of the petition for rehearing en ban c

. A j u dg e requested a vote on whether to rehear the matter en banc. T he matter failed to receive a majority of the votes of the nonrecused acti v e j u d g e s in favor of en banc consideration. F ed. R. App. P. 35.

The petitions f

or rehearing and rehearing en banc a re DENIED . No further petitions will be entertained.

J udg e O’Scannlain’s dissent from denial of rehearing en banc is filed concurrently with this Order.

O’SCANNL AI

N, Circuit J udg e, joined by TAL L MAN, B YB EE, CAL L AHAN, B EA, M. SMI TH, a nd I KUTA, Circuit J udg es, dissenting from the denial o f rehea ri n g en banc:

Our Court defies AEDPA once ag a in, this time by failing to d i s t i ng uish one “life without parole” sentence from multiple “term-of-y

ears” sentences. A panel of this Court holds that Graham v. Florida , 5 60 U.S. 48 (2010), invalidates the latter, ig noring the c ontrary holding of the Six th Circuit, 1

1 Co mp a re Mo o re v. Biter , 72 5 F.3 d 1 18 4 , 11 8 7 (9 th Cir. 2 0 1 3 ) , w i t h Bu n ch v. S

mith , 6 8 5 F.3 d 5 4 6 , 5 5 1 (6 th Cir. 2 0 1 2 ), cert. d en ied , Bu nch v. Bo b b y , 1 33 S. Ct. 1 99 6 (2 0 1 3 ).M O O R E V

. B I T E R 4 disreg arding the views of state courts across the country , a nd flouting Graham ’s tex t 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 un d e r 2 8 U .S.C. § 2254. Moore committed a series o f forcible rapes and other offenses at the ag e of six teen and was tried as an adult. I n 1 9 9 1 , a j ury convicted him of twenty

- four crimes, includin g nine c ounts of forcible rape, seven counts of forcible oral copulation, a nd two counts of robbery , and also found that he used a firearm for most of the offenses. He was sentenced to f ix e d terms o f imprisonment for each offense with enhancements for using
a firearm, to run consecutively

. Althou gh none of the individual s e n t ences ex ceeded eig h t y ears, Moore was sentenced to 254 y e ars in prison, cumulatively

. He cannot be considered for parole until h e serves at least 127 y e ars a nd two months. Nearly two d e c a d e s later, Moore filed state h abeas petitions, pro se , arg uing that his sentence is unconstitutional in lig ht of Graham

. The L os Ang eles County Superior Court summarily denied his p etiti o n

. The California Court o f Appeal h eld that Graham does not apply to Moore’s sentence, and the California Supreme Court summarily denied review.

Our panel, however, g ranted habeas relief, hold i n g that Graham applies retroactively to Moore’s sentence a n d t h at the California state courts’ decisions were contrary toM O O R E V

. B I T E R 5

Graham because Moore’s case is materially indisting uishable from Graham’s. Moore , 725 F .3d at 1186.

I I

Under AEDPA, federal courts may not g rant habeas relief
on a claim that w a s a d

j u dicated on the merits in state court, unless the state c o u r t ’ s decision was: (1) “contrary to, o r involved an unreasonable a pplication o f

, clearly e stablished F ederal law, as determined by the Supr e m e C o urt of the United States;” or (2) “resulted in a decision th a t was based
on an unreasonable determination of the fa c t s i n lig ht of the evidence presented in the State court proceeding .” 28 U .S.C. § 2 2 5 4 ( d). A state court d ecision is “contrary to” Supre m e Court precedent “if it applies a rule that contradicts the g overning law set forth in [ the Court’s] cases or if it confronts
a set of facts that are materially indisting uish a b le from a decision of [ the Supreme] Court and n everthel e s s ar r ives at
a result different from [ the Court’s] precedent.” Early v

. P a c k e r , 537 U .S. 3, 8 (2002) (internal quotation marks omitted).

A state court “must apply leg al principles established by
a Supreme Court decision when the c ase falls squarely within those pri n c i p l e s, but not in cases where there is a structural difference between the prior precedent and the case a t issue,
or w hen the prior precedent requires tailoring or modification to apply to the n ew situation.” Moses v

. P ayne , 555 F .3d 742, 753 ( 9th Cir. 2009) (quotatio n marks omitted). Unless the Supreme Court has “ squarely a d dress[ ed] ” an issue o r established a princ iple that “clearly e x tend[ s] to a new contex t,” there is no “ c learly established Supreme Court precedent addressing the issue.” Id. at 754 (internal quotation marks omitted; second alteration in orig inal).M O O R E V

. B I T E R 6

The Court has consistently warned lower courts, a nd this court in particular, to avoid defining “clearly established” law too bro a d l y

. See, e.g. , Parker v. M atthews , 1 32 S. Ct. 2148 (2012); Howes v. Fields , 132 S. Ct. 1181 (2012); W right v

. Van Patten , 5 52 U.S. 120 ( 2008); Carey v. Mus ladin , 549 U.S. 70 (2006).

A

I n Graham , the Supreme Court announced that t he Co n s t i tution does not permit “a juvenile offender to be sentenced to life in prison without parole for a nonhomicide
c r i m e .” 560 U.S. at 52–53. The Court’s “categ orical rule”
was meant to g ive “juvenile n onhomicide offenders a chance to demonstrate maturity and reform.” Id. at 79.

To support its conclusion that the s t a t e court’s decision
was contrary to Graham , the panel reasoned that “Moore’s sentence of 2 54 y ears is materially indisting ui s h able from a l ife sentence without parole because Moore will not be elig ible for parole w ithin his lifetime.” Moore , 725 F .3d at 1191. That Moore’s sentence was not likely to b e completed during his lifetime, even if n ot labeled a “life sentence,” did not disting uish it fro m G r a ham

. Id. at 1191–92. Fu r t h ermore, that Moore c ommitted serious crimes did not disting uish his case from G raham , because the Supreme Court “ex pressly 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 meaning ful di s t i nction between Moore’s c ase a nd Graham : Moore’s term of imprisonment is composed of over two doz en separate sentences, none long er than eig ht y ears;M O O R E V

. B I T E R 7

Graham’s is one sentence, “life without parole.” B e cause the Supreme Court ex plicitly stated th a t G r a h a m concerned “ only those juvenile offende r s sentenced to life without parole solely f or a nonhomicide offense,” 560 U.S. at 62, it “did not clearly e stablish that consecutive, fix ed-term sentences for juveniles who commit multiple nonhomicide offenses a re unconstitutional when they amount to the practical equivalent of life without parole,” B unch , 685 F .3d at 550.

I f t hat e x press limitation on Graham ’s holding were n o t
en o u gh , Graham ’s reasoning makes clear that the Supreme C o u r t did not squarely a d dress ag g reg ate term-of-y e a rs sentences. B eg inning with “obje c t i v e indicia of n ational consensus,” the Court noted that there were “123 juvenile nonhomicide offenders s e r v i n g l i f e w i t h o u t p arole sentences,” and “only 11 jurisdictions nationwi d e i n fact impose life
w i t h o ut parole sentences on juven i l e n o n h o m i c i d e offenders—and most of those do so qui t e rarely .” Graham , 560 U .S. at 6 2–64. Thus, “[ t] he senten c ing practice n ow under consideration is ex ceeding ly rare.” Id. at 67.

B u t, to reach that conclusion, the Court d id not consider the prevalence of sentences like Moore’s—l e n gthy term-ofy ears sentences adding up to de facto life imprisonment. See id. at 113 n.11 (Thomas, J ., dissenting ) (“[ T] he Court c ounts only those juveniles sentenced to life withou t p a r ole a nd
e x c l udes from its a

n aly sis all juveniles sentenced to leng t h y t e r m
- o f

- y e a r s s e n t e n c e s ( e

. g

. , 7 0 o r 8 0 y e a r s ’ imprisonment).”). Nor was Moore counted among those 123 juvenile nonhomi cide 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 C alifornia for crimes o f kidnapping and/or robbery ).M O O R E V

. B I T E R 8

I f the Court did not consider ag g reg ate term-of-y e a rs sentences adding up de facto to life w ithout p arole, it cannot have squarely addressed their constitutionality

. See Graham , 560 U.S. at 124 (Alito, J ., dissenting ) (“Nothing i n the Court’s o pinion a ffects the imposition of a sentence to a term of y ears without the po s s ibility of parole.”). As our sister circuit held: The Supreme Court “did not analy z e sentencing laws o r actual sentencing p r actices r eg arding c onsecutive, fix ed-term sentences for juvenile nonhomicide offenders. This demonstrates that the Court d id not even co n s ider the constitutionality of such sentences, let alone clearly establish that they can violate the E ig hth Amendment’s prohibition on cruel and unusual punishments.” Bunch , 685 F .3d at 552. 2

I f the Court has n ot squarely ad d r e ssed the constitutionality of ag g r eg ate term-of-y ears senten c es, the state court’s determination that M oore’s sentence is not unconstitutional cannot be contrary to clearly e stablished federal law.

B

Uns u r prising ly , in the absence o f an ex p ress holding reg arding such sentences, “courts a c ross the country are split
over w hether Graham bars a court from sentencing a juvenile nonhomicide offender to consecutive, fix ed terms resulting in
an ag g r eg ate sentence that e x ceeds the defendant’s life
ex p ectancy .” Id. Some have hel d t h a t Graham prohibits

2 T h e Co u rt’ s an aly sis o f o b j ectiv e i n dicia d o es n o t d ictate its Eig h th A m en d m en t j u risp ru d en ce, o f co u rse. S ee Gra ha m , 56 0 U.S. at 6 7. Bu t
w e sh o u ld n o t h o ld , an d w e sh o u ld certain l y n o t f o rce state co ur ts to
assu m e, th at t h e Co u rt’ s “ clearly estab lish ed ” h o ld in g s sw eep w ell b ey o n d
su ch an aly sis.M O O R E V

. B I T E R 9

ag g r eg ate term-of-y ea rs sentences that amount to the functional equivalent of life without parole. See, e.g. , People

v. Caballero , 2 82 P.3d 291, 294–95 (Cal. 2012); People v

. Rainer , No. 10CA2414, 201 3 W L 1490107 (Colo. Ct. App. Apr

. 1 1 , 2013); State v. Null , 836 N .W .2d 41, 73 (I owa 2013). 3 More have held that G r a ham does not prohibit ag g r eg ate term-of-y

ears sentences such as Moore’s. See, e.g. , Bunch , 685 F .3d at 5 52–53; State v

. Kasic , 265 P.3d 410, 415–16 (Ariz

. Ct. A pp. 2011); W alle v. State , 99 So. 3 d 967, 971 (F la. Ct. App. 2012); Hen r y v. State , 82 So. 3d 1084, 1089 ( F la. Ct. App. 2012); State v. Brown , 1 18 So. 3d 332, 341–42 (L a

. 2013); State v. Mer ritt , No. M2012-00829-CCAR3CD, 2013 W L 6505145, at *5 (Tenn. Crim. App. D ec. 10, 2013).

To be sure, in many of the cases re fusing to ex tend Graham , the sentence a t issue left some possibility , however slig ht, that the prisoner mig ht eventually be r eleas ed

. B ut nothing in their reasoning turned on such possibility

. See, e.g. , Brown , 1 18 So. 3d at 341 (“[ N] ot h i n g in Graham

. . . applies to sentences for multiple convictions , a s Graham conducted no a

naly sis of sentence s f

o r multiple convictions and provides no g uidance on h ow to handle such sentences.”).

3 No n e o f th o s e co u

rts w ere req u ired , as t

h e p an el w as, to g iv e d ef

eren ce u n d e r AE D P A to th e co n trary decisio n o f a state co u rt. T h u s, n o n e o f th em h eld , as t

h e p an el’ s o p in io n d o es, th at th e u n co n stitu tio n ality o f su ch
sen ten ces w as “ clearly estab lish ed ” b y Gra h a m

. Mo r eo v er, ev en co u rts th at h av e ap p lied G ra h a m to ag g reg ate t erm
- o f

- y ears sen ten ces h av e reco g n ized th ey are ex ten d in g t h e case b e y o nd its “ clearly estab lish ed ” h o ld in g

. S

ee Ra in er , 2 0 13 W L 1 4 90 1 0 7 , at * 1 0 ; Nu ll , 8 3 6 N.W .2 d at 67 ;
see a lso Ca b a llero , 2 8 2 P .3 d at 2 9 6 (W erd eg ar, J ., co n cu rrin g , j o in ed b y L iu , J .).M O O R E V

. B I T E R 10

The e x i s t e n c e o f such a split is g ood evidence that the Califor n i a 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) (“W hen the federal c ircuits disag r ee as to a point of law, t h e law cannot be considered ‘clearly
e s t a b lished’ under 2 8 U.S.C. § 2254(d)(1).”); Boyd v. Newland , 467 F .3d 1139, 1152 (9th Cir. 2006) (holding that “in the face o f [ o u t-of-circuit] authority that is directly contrary ” to our o w n interpretation of Supreme Court precedent, “and in the absence of ex plicit direction from the Supreme Court,” we cannot hold that the state courts’ analy s i s “was contrary to, or involved an unreasonable application of, Supreme Court precedent.”).

W e re the panel required to confront the constitutionality of Moore’s sentence on direct r eview, or on collateral r eview of a federal sentence, picking one side o f the dispu te would have b een necessary

. B ut AEDPA preclud e s federal courts from settling such disputes on collater a l r e v iew of a state sentence, at least without a persuasive ex planation of how so many courts erred so obviously

. The panel’s opinion neither acknowledg es the dispute nor e x plains how the panel divined
a clearly established holding of the Supreme Court in the face
o f s uch widespread disag reement. I nstead, it concedes a tang entially related split over how Graham applies “to leng thy term-of-y ears sentences that provide some possibility of parole.” M

oore , 725 F .3d at 1194 n.6.

C

An equally telling omission: t h e panel offers no justification for c r eating a circuit split, acting instead a s thoug h it has not done so. T h e only arg ument the opi nionM O O R E V

. B I T E R 11 provides for ig noring the Six th Circu i t ’ s well-reasoned a nd thoroug h opinion is that the facts are different. Id. B ut any factual d istinction—B unch will be at least 95 y ears old when he is elig ible for parole, Bunch , 685 F

. 3d at 5 51 n.1, whereas Moore will be at least 144—does no t make a meaning f ul difference. B unch, like Moore, will not be elig ible for parole until well bey ond his life ex pectancy

. 4
Moreover, nothing in the Six th Circuit’s o pinion turns on the possib i l i t y that B unch mig ht outlive his sentence. Our sister circuit acknowledg ed that B unch’s sentence “may end up being the functional equivalent of life without parole.” Bunch , 685 F .3d at 55 1

. S u ch was the sentencing judg e’s g oal: “I just have to make s u r e t h at y ou don’t g et out o f the penitentiary

. I ’ve g ot to do e v e r y thing I c a n to keep y ou there, because it w ould be a m i s t a k e t o have y ou back in society .” I

d. at 548. Nonetheless, the court determined that B unch’s sentence was not contrary to clearly e stablished federal law, b ecause “in Graham , the Court said t h a t a juvenile i s e n t i t l e d to

. . . a ‘realistic opportunity to obtain release’ if a state imposes a sentence of ‘li f e

. ’ ” I d

. at 551 (quoting Graham , 560 U.S. at 82). “ Graham ’s holding ” does not apply , therefore, “to a juvenil e o f f ender who received consecutive, fix ed- t e rm sentences.” Id. ; see also id. at 548 (The Supreme Court “ did not address juvenile o ffenders, like B unch, who received consecutive, f ix ed-term s e n t ences for committing multiple nonhomicide offenses.”).

The panel c annot evade the force of Bunch ’s reasoning b y noting an insig nificant factual d istinction, w hich our sister

4 S ee S ta te v. Bu n ch , No . 0 6 MA 1 0 6 , 2 0 07 W L 4 6 9 6 8 3 2 , at * 5 (Oh io Ct. A p p

. Dec. 2 1 , 2 0 0 7 ) (B u n ch “ in d icates, w ith citatio n to au th o rities, th at h is lif

e ex p ectan cy

is o n ly 7 0 y ears.”).M O O R E V

. B I T E R 12

circuit assumed a w a y

. Y et the panel’s opinion sets forth no other arg ument.

I I I
Respect for the California courts, for our sister ci rcuit, 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 i t f o und their analy sis unpersuasive. I nstead, the p anel’s opinion ig nores their arg uments.

B u t the states encompassed by our Circuit cannot ig nore the opinion’s holding , which requires them to ask:

At what number of y ears would the Eig hth Amendment become implicat e d in the sentencing of a juvenile: twenty , thirty , forty , fifty , some lesser or g r ea ter number? W ould g ain t i m e be taken into account? Could the number vary from offender to offender based
on race, g ender, socioeconomic class or other criteria? Does the number of crimes matter?
Henry , 82 So. 3d a t 1 089. A lso, “W hat if the ag g reg ate sentences are from different cases? F rom different circuits? F rom different jurisdictions? I f from different jurisdictions, which jurisdict i o n m ust modify its sentence or sentences to avoid constitutional infirmity ? ” W alle , 99 So. 3d at 972.

W it hout 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,” y et g ives them no other “tools to work with,” Henry ,M O O R E V

. B I T E R 13

8 2 S o

. 3 d at 1089, when a nswering

. And each of the i r answers c ould potentially b e overrul e d b y our Court a s contrary to the “clearly

established” rule of G raham

.
I V

As the Supreme Court has re m i n ded us y et ag ain, “AEDPA recog niz es a foundat i o n a l principle of our federal sy stem: State courts are adequate forums for the vindication of federal rig hts.” Burt v. Titlow , 134 S. Ct. 10, 1 5 (2013). W e should never “lig htly conclude that a State’s criminal justice sy stem has ex perienced the ‘ ex treme ma l f unctio[ n] ’ for which federal habeas relief is the remedy .” Id. (alteration in orig inal) ( quoting Harrington v. Richter , 131 S. Ct. 770, 786 ( 2011)). T he panel has appare n t l y c oncluded, without
ex p lanation, t h a t n o t only the California court, but also the Six th Circuit and courts across the country have e x p erienced such an ex treme malfunction. This “judicial d isreg ard for the sound and established principles” that g o vern issuance of the writ of habeas corpus threatens to undermine “confidence in the w rit and the law it vindicates.” Richter , 131 S. Ct. at 780.

B e cause the panel’s opinion defies AEDPA, creates a circuit split, a

nd threatens frequent and u njustified intrusions into state sovereig nty , I respectfully dissent from our Court’s reg rettable failure to rehear this case en banc.