FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRY EUGENE IVERSEN, 

Petitioner-Appellant, 

 v. 

DAVE PEDRO, 

Respondent-Appellee.

No. 22-35076 

D.C. No. 2:20-cv01524-AA 

OPINION

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted December 7, 2023

Portland, Oregon

Filed March 27, 2024

Before: Jacqueline H. Nguyen and Eric D. Miller, Circuit 

Judges, and Frank Montalvo,* District Judge.

Opinion by Judge Montalvo

* The Honorable Frank Montalvo, United States District Judge for the 

Western District of Texas, sitting by designation.
2 IVERSEN V. PEDRO

SUMMARY**

Habeas Corpus 

The panel affirmed the district court’s denial of Terry 

Eugene Iversen’s 28 U.S.C. § 2254 petition for a writ of 

habeas corpus in a case in which the district court rejected 

Iversen’s claim that a life without parole (LWOP) sentence, 

imposed after Iversen pleaded guilty to public indecency, 

was grossly disproportionate to his offense in violation of the 

Eighth Amendment’s prohibition against cruel and unusual 

punishment. 

Applying the demanding standard required by the 

Antiterrorism and Effective Death Penalty Act, and 

acknowledging that some fair-minded jurists may disagree 

on the correctness of Iversen’s LWOP sentence, the panel 

held that the Oregon state court’s decision concerning 

Iversen’s sentence is not contrary to the Supreme Court’s 

Eighth Amendment jurisprudence. The panel could not 

conclude that Iversen’s sentence raises an inference of gross 

disproportionality, and held that the sentence pursuant to 

Oregon’s legislatively-mandated sex offender recidivism 

statute is not constitutionally infirm in light of the gravity of 

Iversen’s offense and criminal history. 

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

been prepared by court staff for the convenience of the reader.
IVERSEN V. PEDRO 3 

COUNSEL

Stephen R. Sady (argued), Chief Deputy Federal Public 

Defender; Tihanne K. Mar-Shall, Assistant Federal Public 

Defender; Federal Public Defender’s Office, Portland, 

Oregon; for Petitioner-Appellant. 

Rolf C. Moan (argued), Senior Assistant Attorney General; 

Benjamin Gutman, Solicitor General; Ellen F. Rosenblum, 

Oregon Attorney General; Oregon Department of Justice, 

Office of the Oregon Attorney General (Salem), Salem, 

Oregon; for Respondent-Appellee.

Walter Fonseca, Oregon Justice Resource Center, Portland, 

Oregon, for Amicus Curiae Oregon Justice Resource Center. 

OPINION

MONTALVO, District Judge:

Oregon inmate Terry Eugene Iversen appeals the district 

court’s denial of his 28 U.S.C. § 2254 petition for a writ of 

habeas corpus. He maintains the district court erred in 

rejecting a claim that a life without parole (LWOP) sentence 

imposed after he pleaded guilty to public indecency was 

grossly disproportionate to his offense. 

I 

We have jurisdiction over Iversen’s appeal under 28 

U.S.C. §§ 1291 and 2253. We review de novo the district 

court’s denial of his habeas petition. Murray v. Schriro, 745 

F.3d 984, 996 (9th Cir. 2014). But we are constrained by the

Antiterrorism and Effective Death Penalty Act (AEDPA), 

which governs habeas review of state convictions. Valerio v. 
4 IVERSEN V. PEDRO

Crawford, 306 F.3d 742, 763 (9th Cir. 2002) (en banc). 

Under AEDPA, we must defer to the last state court’s 

reasoned decision on any claim that was adjudicated on the 

merits unless that decision is (1) “contrary to, or involved an 

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court” or (2) “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). Applying AEDPA’s “demanding” standard, we 

affirm the district court’s denial of Iversen’s habeas petition. 

Brown v. Davenport, 596 U.S. 118, 134 (2022).

Iversen exposed himself and masturbated while sitting 

behind a young woman on a light rail train in Washington 

County, Oregon. He was arrested and pleaded guilty to 

public indecency. At his plea hearing, he acknowledged five 

prior convictions for public indecency, one prior conviction 

for rape in the third degree of a 15-year-old female, and one 

prior conviction for sodomy in the first degree of a 12-yearold female. He further admitted three sentencing 

enhancement factors applied to him: (1) “this crime involved 

persistent involvement in similar offenses unrelated to this 

current offense”; (2) “prior justice system sanctions have not 

deterred [him] from reoffending”; and (3) he was “on 

supervision for another offense at the time.” 

The Probation Officer prepared a presentence report

which was considered by the sentencing judge. It noted that 

in addition to his prior convictions for public indecency, 

rape, and sodomy, Iversen also had prior convictions for 

multiple assaults, attempted burglary, and 

methamphetamine possession. He observed Iversen was 

diagnosed with “Exhibitionism . . . Paraphilia . . .

Hypersexuality of Sexual Impulse Control Disorder . . .

Antisocial Personality Disorder.” He reported that a sex 
IVERSEN V. PEDRO 5

offender treatment practitioner “did not believe that Iversen 

got much benefit from treatment.” 

At the sentencing hearing, the State outlined Iversen’s 

criminal history, providing testimony and evidence—

including several presentence investigation reports and 

officer testimony—as to the circumstances of his prior 

convictions and other uncharged or dismissed misconduct. It 

also presented evidence that Iversen had shown little 

progress during his rehabilitation. 

Because of Iversen’s criminal history, two recidivism 

statutes applied. First, his prior convictions for public 

indecency converted his instant offense—normally a Class 

A misdemeanor—into a Class C felony. Or. Rev. Stat. 

§ 163.465(2)(b). Second, his instant and prior felony 

convictions for public indecency, together with his prior 

felony convictions for rape and sodomy, triggered a 

presumptive LWOP sentence pursuant to the Oregon sex 

offender recidivism statute. Or. Rev. Stat. § 137.719(1). 

Nevertheless, his counsel argued that a LWOP sentence for 

public indecency was both cruel and unusual—in violation 

of Iversen’s rights under the Eighth Amendment. 

The trial court judge rejected Iversen’s arguments. He 

found Iversen’s criminal history “absolutely horrendous.” 

He described Iversen as “very dangerous” based on his 

previous convictions. He noted Iversen had “been given 

many, many opportunities . . . to reform,” but had not taken 

advantage of them. He observed that “all we can do is 

incarcerate you because that’s the only thing that works from 

preventing you to offend again.” He explained “I don’t find 

any mitigation whatsoever in this case that would 

warrant . . . a departure.” He concluded Iversen had earned a 

life without parole sentence. He opined that the Supreme 
6 IVERSEN V. PEDRO

Court’s Eighth Amendment cases did “not declare that a 

sentence for this type of offense, a life sentence is 

unconstitutional.” He clearly said, “I do not find that it is a[n] 

unconstitutional sentence.” He noted, “[y]es this is a 

misdemeanor act, but it’s the history, the prior convictions, 

the failures that you have.” He then sentenced Iversen to life 

without parole pursuant to the Oregon sex offender 

recidivism statute. Or. Rev. Stat. § 137.719(1).

On direct review, the Oregon Court of Appeals affirmed 

the LWOP sentence with no reasoning other than a citation 

to State v. Althouse, 375 P.3d 475 (Or. 2016).1 State v. 

Iversen, 435 P. 3d 837 (Or. App. 2019). The Oregon 

Supreme Court denied further review. State v. Iversen, 451 

P.3d 984 (Or. 2019).

Iversen did not pursue post-conviction review in the state 

courts. Iverson’s only claim is that the LWOP sentence for 

1 In Althouse, the Oregon Supreme Court explained “the Eighth 

Amendment does not require strict proportionality between crime and 

sentence[,] but forbids only extreme sentences that are grossly 

disproportionate to the crime.” 375 P.3d at 489 (quotation marks 

omitted) (quoting Ewing v. California, 538 U.S. 11, 23 (2003) 

(O’Connor, J., plurality opinion)) (quoting Harmelin v. Michigan, 501 

U.S. 957, 1001 (1991) (Kennedy, J., concurring in part and concurring 

in the judgment)). “[T]he inquiry starts ‘by comparing the gravity of the 

offense and the severity of the sentence.’” Id. (quoting Graham v. 

Florida, 560 U.S. 48, 60 (2010)). “[D]etermining the ‘gravity’ of a given 

offense in the context of a sentence imposed under a recidivist statute 

includes consideration of the defendant’s criminal history.” Id. (citing 

Ewing, 538 U.S. at 29) (“In weighing the gravity of Ewing’s offense, we 

must place on the scales not only his current felony, but also his long 

history of felony recidivism. Any other approach would fail to accord 

proper deference to the policy judgments that find expression in the 

legislature’s choice of sanctions.”).
IVERSEN V. PEDRO 7

public indecency violated the Eighth Amendment’s 

prohibition against cruel and unusual punishment. 

The district court—relying on cases involving recidivist 

sentences—concluded Iversen could not “demonstrate that 

the trial court’s determination that his sentence [did] not 

violate the Eighth Amendment was contrary to, or involved 

an unreasonable application of, clearly established federal 

law, as determined by the Supreme Court.” It accordingly 

denied Iversen habeas relief. 

II

The Eighth Amendment, made applicable to the States 

by the Fourteenth Amendment, forbids cruel and unusual 

punishment. The Supreme Court has held that it prohibits a 

sentence to a state prison that is disproportionate to the 

offense. Weems v. United States, 217 U.S. 349, 368 (1910)

(quoting McDonald v. Commonwealth, 53 N.E. 874, 875 

(Mass. 1899)). While the Court addressed the 

proportionality principle in a series of subsequent cases, it 

has not established “a clear or consistent path for courts to 

follow” in determining when a particular sentence for a term 

of years violates the Eighth Amendment. Lockyer v. 

Andrade, 538 U.S. 63, 72 (2003).

In Rummel v. Estelle, the Court upheld a life sentence 

with the possibility of parole under Texas’ recidivist 

sentencing statute where the defendant was charged with the 

felony of obtaining $120 by false pretenses. 445 U.S. 263,

276, 285 (1980). The defendant’s previous convictions 

included fraudulently using a credit card to obtain $80 worth 

of goods and passing a forged check in the amount of $28.36. 

Id. at 265. It noted that “successful challenges to the 

proportionality of particular sentences have been 

exceedingly rare.” Id. at 272. It added that “the length of the 
8 IVERSEN V. PEDRO

sentence actually imposed is purely a matter of legislative 

prerogative” for crimes classified as felonies. Id. at 274.

In Solem v. Helm, the Court concluded a LWOP sentence 

under a South Dakota recidivist sentencing statute applied to 

a conviction for uttering a “no account” check for $100 was 

“significantly disproportionate” to the crime and violated the 

Eighth Amendment. 463 U.S. 277, 281, 303 (1983). The

defendant’s offense “was ‘one of the most passive felonies a 

person could commit,’” id. at 296 (quoting State v. Helm, 

287 N.W. 2d 497, 501 (S.D. 1980) (Henderson J., 

dissenting)), and his six prior nonviolent felonies “were all 

relatively minor,” id. at 296–97. The Court suggested that “a 

court’s proportionality analysis under the Eighth 

Amendment should be guided by objective criteria, 

including (i) the gravity of the offense and the harshness of 

the penalty; (ii) the sentences imposed on other criminals in 

the same jurisdiction; and (iii) the sentences imposed for 

commission of the same crime in other jurisdictions.” Id. at 

292.

In Harmelin v. Michigan, the Court affirmed a 

mandatory LWOP sentence for possessing more than 650 

grams of cocaine without any consideration of “mitigating 

factors such as, in [defendant’s] case, the fact that he had no 

prior felony convictions.” 501 U.S. 957, 994 (1991). The 

Court suggested that there is “no comparable requirement” 

for an individualized determination that the punishment is 

grossly disproportionate “outside the capital context, 

because of the qualitative difference between death and all 

other penalties.” Id. at 995 (Scalia, J.). Justice Scalia, joined 

by Chief Justice Rehnquist—in a non-plurality opinion, 

declared that “Solem was simply wrong; the Eighth 

Amendment contains no proportionality guarantee.” Id. at 

965. Justice Kennedy, joined by Justices O’Connor and 
IVERSEN V. PEDRO 9

Souter—the plurality opinion, concurring in part and 

concurring in the judgment, adopted a “narrow 

proportionality principle,” rather than rejecting any 

proportionality guarantee under the Eighth Amendment

outright. Id. at 997 (Kennedy, J.). Though Justice Kennedy 

acknowledged the three factors set forth in Solem v. Helm, 

he thought the case “did not announce a rigid three-part test.” 

Id. at 1004. Rather, he believed the Court should initially 

examine the “crime committed and the sentence imposed” 

and only proceed with intra and inter-jurisdictional analyses 

“in the rare case” where the initial examination “leads to an 

inference of gross disproportionality.” Id. at 1005.

In Ewing v. California, the Court upheld a California 

three strikes sentence of 25 years to life for the felony grand 

theft of three golf clubs together worth $1,200. 538 U.S. 11,

28, 30–31 (2003). Justice O’Connor, joined by Chief Justice 

Rehnquist and Justice Kennedy, explained “[i]n weighing 

the gravity of Ewing’s offense, we must place on the scales 

not only his current felony, but also his long history of felony 

recidivism.” Id. at 29 (plurality opinion). The plurality noted 

“the legislature . . . has primary responsibility for making the 

difficult policy choices that underlie any criminal sentencing 

scheme.” Id. at 28. It further observed “the State’s publicsafety interest in incapacitating and deterring recidivist 

felons” is a “legitimate penological goal.” Id. at 29.

In Lockyer v. Andrade, the Court concluded it was not a 

clear violation of the federal prohibition on cruel and 

unusual punishment to impose two consecutive terms of 25 

years to life under California’s three strikes statutes for 

defendant’s two petty theft crimes, where the defendant also 

had prior convictions for misdemeanor theft, residential 

burglary, and transporting marijuana. 538 U.S. at 66–67, 77.
10 IVERSEN V. PEDRO

Finally, in Graham v. Florida, the Court held the Eighth 

Amendment prohibited LWOP sentences for juveniles who 

committed nonhomicide offenses because such sentences 

are grossly disproportionate to the offenses. 560 U.S. 48, 82 

(2010).

We glean several broad principles from these Supreme 

Court cases. First, the length of a particular sentence is a 

matter of legislative prerogative. Rummel, 445 at 274. The 

State’s public-safety interest in incapacitating and deterring 

a recidivist felon is a legitimate penological goal. Ewing, 538 

U.S. at 29. Finally, a defendant’s history of recidivism is 

relevant in weighing both the gravity of his offense and the 

proportionality of his sentence. Id.

These principles are demonstrated in Gonzalez v. 

Duncan where we ultimately reversed and remanded a denial 

of habeas relief. 551 F.3d 875, 891 (9th Cir. 2008).

Gonzalez, a convicted sex offender, was charged with failing 

to register a change of address pursuant to California’s sex 

offender registration statute. Id. at 877. He was convicted, 

which resulted in him receiving a sentence of 28 years to life 

under California’s Three Strikes law. Id. at 878–79. We 

recognized the State of California’s interest in deterring 

recidivist felons. Id. at 886. We reviewed Gonzalez’s 

extensive criminal history and we determined Gonzalez was 

the type of “exceedingly rare” case that demonstrated gross 

disproportionality. Id. at 882, 886–87. 

We did not reach that conclusion lightly. In finding an 

inference of gross disproportionality, we noted that 

Gonzalez’s failure to register was “an entirely passive, 

harmless, and technical violation of the registration law.” Id. 

at 885 (quoting People v. Carmony, 26 Cal. Rptr. 3d 365, 

372 (2005)). Further still, while Gonzalez’s criminal history 
IVERSEN V. PEDRO 11

“include[ed] convictions for possession of a controlled 

substance and auto theft in 1988, attempted forcible rape and 

lewd conduct with a child in . . . 1989, robbery in 1992, and 

spousal abuse in 1999,” id. at 886; we discerned no “rational 

relationship between Gonzalez’s failure to update his sex 

offender registration . . . and the probability he will 

recidivate as a violent criminal or sex offender,” id. at 887. 

Thus, given the passivity of merely failing to register, and 

the lack of connection between his criminal history and 

potential recidivism as a sex offender, we concluded the 

sentence was grossly disproportionate. 

III

Turning to Iversen’s case, we cannot conclude that his 

sentence raises an inference of gross disproportionality.

Unlike Gonzalez, Iversen was not convicted of a harmless 

regulatory offense. Instead, he was convicted of public 

indecency for the sixth time. This is in addition to his 

extensive history of sex offenses. The statute in question in 

Gonzalez was centered on “the need for police to be able to 

keep track of offenders.” 551 F.3d at 889. Here, Oregon’s 

statute is aimed at punishing recidivist felony sex offenders. 

Oregon has a public safety interest in incapacitating and 

deterring recidivist felons like this. Ewing, 538 U.S. at 29. 

Iversen’s criminal history is directly related to the triggering 

offense, and he has a clear pattern of recidivism which was 

considered by the state court.

While some fair-minded jurists may disagree on the 

correctness of Iversen’s LWOP sentence, the Oregon state 

court’s decision concerning his sentence is not contrary to 

the Supreme Court’s Eighth Amendment jurisprudence. 

Harrington v. Richter, 562 U.S. 86, 102 (2011). Under the 

“AEDPA standard we must apply here, ‘the only relevant 
12 IVERSEN V. PEDRO

clearly established law amenable to the “contrary to” or 

“unreasonable application of” framework is the gross 

disproportionality principle, the precise contours of which 

are unclear.’” Gonzalez, 551 F.3d at 882–83 (citing Andrade, 

538 U.S. at 73). This sentence is not constitutionally infirm 

in light of the gravity of Iversen’s offense and criminal 

history. Norris v. Morgan, 662 F.3d 1276, 1296 (9th Cir. 

2010). 

The state courts (1) considered Iversen’s history of adult 

felony recidivism; (2) acknowledged Iversen’s mental 

health record, reviewed his failed opportunities to reform, 

and concluded he remained very dangerous to others; 

(3) determined a LWOP sentence was neither extreme nor 

disproportionate to Iversen’s instant offense after 

considering his past criminal conduct; (4) observed 

Oregon’s public-safety interest in incapacitating and 

deterring recidivist felons—like Iversen—is a legitimate 

penological goal; and (5) sentenced Iversen to LWOP 

pursuant to Oregon’s legislatively-mandated sex offender 

recidivism statute. 

The district court correctly determined the Oregon state 

court’s LWOP sentence for Iversen was not contrary to, or 

an unreasonable application of, clearly established federal 

law as determined by the Supreme Court of the United 

States. 28 U.S.C. § 2254(d)(1). Accordingly, the district 

court did not err when it denied Iversen’s habeas petition.

The judgment of the district court is AFFIRMED.