NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUY ADAM ROOK,

Petitioner

- Appellant,

v.

DONALD HOLBROOK,

Respondent

- Appellee. No. 20

- 35139

D.C. No. 2:18

- cv

- 00233

- JCC

MEMORANDUM *

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Submitted August 13, 2021

Seattle, Washington

Before: EBEL, * * BEA, and VANDYKE, Circuit Judges.

A jury convicted Guy Rook of vehicular assault committed in a reckless

manner. See Rev. Code Wash. § 46.61.522. Because this conviction was his “third

strike” under Washington’s Persistent Offender Accountability Act ( the “POAA”),

the Washington state trial court sentenced him t o life imprisonment without the

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable David M. Ebel, United States Circuit Judge for the U.S.

Court of Appeals for the Tenth Circuit, sitting by designation. 

# FILED

AUG 24 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

possibility of parole. See Rev. Code Wash. § 9.94A.570

. On direct appeal, the

Washington Court of Appeals affirmed , concluding that he failed to prove his

sentence was grossly disproportionate in violation of the Eighth Am endment of the

U.S. Constitution and Article 1 (Section 14) of the Washington Constitution

. 1 Rook

then filed the instant habeas petition under 28 U.S.C. § 2254

. The district court

denied the petition, and Rook appeals from this decision

. We have jurisd iction under

28 U.S.C. § 1291

, and we affirm.

1. Rook first contends that his federal constitutional claim was not

“adjudicate d on the merits in State court proceedings ” under § 2254(d) . If Rook

were right , he would be entitled to de novo review, rather than § 2254(d)’s highly

deferential standard of review

. See Amado v. Gonzalez

, 758 F.3d 1119, 1130 (9th

Cir. 2014)

.

Rook is correct to some extent: the Washington Court of Appeals declined to

address his Eighth Amendment claim directly because, as it explained, “ [t]he state

constitutional proscription against ‘ cruel punishment ’ affords greater protection than

its federal counterpart

, ” so “ if the state constitutional provision is not violated,

neither is the federal provision. ” But his argument ultimately fails because a

1 The Washington Supreme Court subsequently denied review w ithout

comment , so we review the Washington Court of Appeals’s decision as the “last

reasoned state court opinion.” Tamplin v. Muniz , 894 F.3d 1076, 1082 (9th Cir.

2018) (internal citation omitted).3

discussion of federal authority is not required to find that a state court adjudicated a

petitioner ’ s federal claim “ on the merits. ” See Early v. Packer

, 537 U.S. 3, 8 (2002)

(per curiam) ( holding that § 2254(d) “ does not require citation of [federal] cases

—

indeed, it does not even require awareness of [federal] cases, so long as neither the

reasoning nor the result of the state

- court decision contradicts them ” )

. I f, like here,

“ the state

- law rule subsumes the federal standard

— that is, if it is at least as protective

as the federal standard

— then the federal claim may be regarded as having been

adjudicated on the merits. ” Johnson v. Williams , 568 U.S. 289, 299, 301 (2013)

(reversing grant of habeas and holding that “ a state appellate court may regard its

discussion of the state precedent as sufficient to cover a claim based on the related

federal right ”)

.

Although our “strong” presumption “ that the federal claim was adjudicated

on the merits ” is not “ irrebuttable ,” id. at 301

– 02 , Rook fails to rebut the

presumption

. Rook argues merely that the Washington Court of Appeals applied the

wrong standard. But t his argument is more apt in addressing the next step of the

analysis: whether the state court’s de cision “was contrary to, or involved an

unreasonable application of, clearly established Federal law .” § 2254(d) ; s ee Norris

v. Morgan , 622 F.3d 1276, 128 5 (9th Cir. 2010) (applying § 2254(d) even though

the Washington Court of Appeals declined to discuss petitioner’s Eighth

Amendment claim because the Washington C onstitution , which it did discuss

, is4

more protective). Because Rook fails to establish that his federal constitutional

claim was not “ adjudicate d on the merits

, ” we must apply § 2254(d) ’s defer ential

standard of review.

2. Rook next argues that even if the Washington Court of A ppeals had

adjudicate d his claim “on the merits

, ” he is still entitled to relief because the decision

“was contrary to, or involved an unreasonable application of, clearly established

Federal law

, as determined by the Supreme Court of the United States .” § 2254(d).

“ Under the ‘ contrary to ’ prong of § 2 254(d)(1), a federal court may grant habeas

relief only if the state court arrives at a conclusion opposite to that reached by [the

Supreme] Court on a question of law or if the state court decides a case differently

than [the Supreme] Court has on a set of materially indistinguishable facts. ”

McKinney v. Ryan

, 813 F.3d 798, 811 (9th Cir. 2015) (internal citation omitted)

.

More s pecifically, Rook contends that the Washington Court of Appeals’s

decision was “contrary to” the principles set forth in Rummel v. Estelle

, 445 U.S.

263 (1980); Solem v. Helm , 463 U.S. 277 (1983); Harmelin v. Michigan , 501 U.S.

957 (1991); and Graham v. Florida , 560 U.S. 48 (2010). The Supreme Court has

recognized that its “precedents in this area have not been a model of clarity” and that

“the only relevant clearly established law amenable to the ‘contrary to’ or

‘unreasonable application of’ framework is the gross disproportional ity principle,

the precise contours of which are unclear, applicable only in the ‘exceedingly rare’5

and ‘extreme’ case.” Lockyer v. Andrade , 538 U.S. 63, 72

– 73 (2003). In evaluating

these proportionality claims, the Supreme Court has considered some “obj ective

criteria

, ” such as “(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

. ” S olem

,

463 U.S. at 292 . B ut, “at the very least, . . . courts must objectively measure the

severity of a defendant’s sentence in light of the crimes he committed.” Norris , 622

F.3d at 1287.

Although the Washington Court of Appeals addressed Rook’s proport ionality

claim under the Washington Constitution, 2 Rook fails to establish that the decision

“was contrary to . . . clearly established Federal law” under § 2254(d). T he

Washington Court of Appeals considered

— and rejected

— Rook’s argument that

“the seriou sness of [his] offenses weighs heavily against application of the POAA

in this case” and that his circumstances “do not warrant the imposition of the highest

2 In doing so, the Washington Court of Appeals analyzed three factors: “(1)

the nature of the offense, (2) the punishment received in other jurisdictions for the

same offense, and (3) the punishment imposed for other offenses in the same

jurisdiction

. ” See State v. Manussier , 921 P.2d 473, 485 (Wash. 1996) (specifying

that Washington state courts “consider[] [these] three factors in determining whether

a punishment is disproportionate to the crime committed and thus ‘cruel’ in

contravention of [Washington] Const. art. I, § 14”).6

punishment possible short of the death penalty.” 3 The court analyzed past and

present iterations of the vehicular assault statute, of which Rook was convicted, and

concluded that “Rook fail[ed] to show that either the nature of the [offense] or the

legislative purpose warrants a less severe penalty.” T he Washington Court of

Appeals also examined “a survey of other states’ vehicular assault statutes” and

found that Rook’s conduct satisfies the elements for assault with a deadly weapon

—

and thus constitutes a “strike” under the respective recidivist statute

— in both North

Carolina and California. Rook thus fails to carry his burden. Cf. Harmelin , 501 U.S.

at 987

– 89, 1001 (holding that mandatory life sentence without possibility of parole

for possession of cocaine was not grossly dispropor tionate in violation of the Eighth

Amendment ).

3 We reject Rook’s con tention that Washington state courts are “ required ”

— in contravention of “clearly established Federal law”

— to disregard the distinction

between sentences of life with and without the possibility of parole. Not only did

the Washington Court of Appeals ackno wledge and assess the severity of Rook’s

sentence here , but Rook misreads the relevant state authority regarding the state

standard. In In re Grisby , 853 P.2d 901 (Wash. 1993), the Washington Supreme

Court noted that although “[t]he two penalties

. . . ar e substantially similar

, ” they are

“obviously not identical.” Id. at 90 5 (internal citation omitted) . Recognizing that

the U.S. Supreme Court’s “majority opinion in Solem is very fact specific,” the

Washington Supreme Court clarified that “[e]ven the most cursory reading of Solem

shows that its references to the disparity of sentences of life with and without

possibility of parole are limited to [the petitioner]’ s sentence” in that case. Id. at

90 5

– 07. Rook’s contention is “incompatible with § 2254(d)’s highly deferential

standard for evaluating state

- court rulings, which demands that state

- court decisions

be given the benefit of the doubt.” Woodford v. Visciotti , 537 U.S. 19, 24 (2002)

(intern al citation omitted).7

Accordingly, the district court’s order, which denied Rook’s habeas petition

under § 2254, is AFFIRMED.