NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARVIN MOSBY, 

Petitioner-Appellant, 

 v. 

PERRY RUSSELL, Warden; ATTORNEY 

GENERAL, 

Respondents-Appellees.

No. 20-16894 

D.C. No. 

3:14-cv-00251-MMD-WGC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Submitted May 11, 2022**

Pasadena, California

Before: IKUTA, NGUYEN, and OWENS, Circuit Judges.

Marvin Mosby was sentenced to life in prison without the possibility of 

parole under Nevada’s three-strikes law, following his 2011 conviction for larceny.

See Nevada Revised Statutes sections 205.270, 207.010(1)(b)(1). He now appeals 

* 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

MAY 17 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

from the district court’s order dismissing his 28 U.S.C. § 2254 petition for a writ of 

habeas corpus. As the parties are familiar with the facts, we do not recount them 

here. Reviewing the district court’s decision de novo, see Haney v. Adams, 641 

F.3d 1168, 1170 (9th Cir. 2011), we affirm. 

Mosby argues that his sentence of life without parole for stealing a camera is 

grossly disproportionate and thus constitutes cruel and unusual punishment in 

violation of the Eighth Amendment. But under the Antiterrorism and Effective 

Death Penalty Act, we may grant his habeas petition only if the decision of the 

Nevada Supreme Court rejecting that very claim and affirming his life sentence 

“was contrary to, or involved 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). And the Supreme Court has made it clear that, under its Eighth 

Amendment proportionality precedents, “the only relevant 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, 

applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Lockyer v. Andrade, 

538 U.S. 63, 73 (2003) (citation omitted). 

1. The Nevada Supreme Court’s decision was not “contrary to” the gross 

disproportionality principle. Firstly, the court’s failure to conduct an intra- and 

inter-jurisdictional analysis or give decisive weight to the fact that Mosby’s 
3 

sentence does not include the possibility of parole does not mean it contradicted 

this principle, because only the gross disproportionality principle itself is clearly 

established—the precise factors a court must consider (including parole and 

jurisdictional comparisons) are not. See id.

Nor did the court contradict clearly established law by stating that Mosby’s 

sentence was not so disproportionate as to “shock the conscience.” The court’s 

invocation of the phrase “shock the conscience” appears to have been a reference 

to the Nevada state constitutional standard for cruel and unusual punishment, and 

not necessarily the federal standard.

1 See Blume v. State, 915 P.2d 282, 284 (Nev. 

1996). Because Mosby had argued that his conviction violated both the state and 

federal constitutions, the “shock the conscience” language is better understood as 

addressed to Mosby’s state law claim. Moreover, the Nevada Supreme Court 

clearly weighed the “gravity of [Mosby’s] offense” and his “history of recidivism,” 

and the fact that he was “sentenced as a large habitual criminal,” all of which are 

factors the U.S. Supreme Court has weighed in proportionality cases. See, e.g.,

Rummel v. Estelle, 445 U.S. 263, 276 (1980); Harmelin v. Michigan, 501 U.S. 957,

1002 (1991) (Kennedy, J., concurring in part and concurring in the judgment).

Nor was Mosby’s case materially indistinguishable from Solem v. Helm, 463 

1 The Nevada Supreme Court cited both federal case law (which does not contain 

the “shock the conscience” language) and state case law (which does). 
4 

U.S. 277 (1983). See Williams v. Taylor, 529 U.S. 362, 406 (2000) (noting that a 

state court decision is “contrary to” clearly established law if the state court

confronts facts “materially indistinguishable” from those in a U.S. Supreme Court 

case and yet reaches a different result). The Solem Court emphasized the fact that 

the habeas petitioner was “not a professional criminal” and his record involved “no 

instance of violence of any kind.” 463 U.S. at 297 n.22. Additionally, none of the

Solem petitioner’s prior crimes were crimes against a person. Id. at 297. Mosby, 

by contrast, has committed twelve felonies and ten misdemeanors over the course 

of almost thirty years. The instant offense and several of his prior convictions 

were crimes against specific people. And the camera theft was not “one of the 

most passive felonies a person could commit.” Id. at 296 (citation omitted). 

Rather, it involved deceiving his victims and then furtively stealing the camera 

from a bag one of them was carrying. 

2. The Nevada Supreme Court’s decision was also not an “unreasonable 

application” of clearly established law. See Harrington v. Richter, 562 U.S. 86, 

101-02 (2011) (noting that the “unreasonable application” standard is highly 

deferential, and that even an “incorrect” state court decision will not merit habeas 

relief so long as “fairminded jurists” could disagree about its correctness (citations 

omitted)). At a minimum, fair-minded jurists could disagree about whether 

Mosby’s sentence was grossly disproportionate, because there are many cases in 
5 

which life sentences for petty theft under three-strikes laws have been deemed 

constitutional. See, e.g., Rummel, 445 U.S. at 265-66, 285 (upholding life sentence 

for obtaining $120.75 by false pretenses); Ewing v. California, 538 U.S. 11, 30-31

(2003) (upholding 25 years to life sentence for stealing three golf clubs). 

And the fact that Mosby’s sentence excludes the possibility of parole does 

not push the Nevada Supreme Court’s decision beyond the realm of reasonable 

disagreement. Cf. Harmelin, 501 U.S. at 996 (finding life without parole not cruel 

and unusual punishment for a nonviolent drug crime and noting that “retroactive 

legislative reduction and executive clemency” were still available). Solem did not 

imply that nonviolent property crimes can never be punished with life without the 

possibility of parole. 463 U.S. at 297 n.24 (“We raise no question as to the general 

validity of sentences without possibility of parole.”).

In short, the Nevada Supreme Court’s decision upholding his sentence was 

not contrary to or an unreasonable application of the gross disproportionality 

principle. 

AFFIRMED.