Moor v. Palmer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK MOOR, 

Petitioner-Appellant, No. 07-16045

v.

 D.C. No.

CV-07-00151-BES

JACK PALMER; NEVADA ATTORNEY

GENERAL, OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the District of Nevada

Brian E. Sandoval, District Judge, Presiding

Argued and Submitted

January 15, 2010—San Francisco, California

Filed April 29, 2010

Before: J. Clifford Wallace, Procter Hug, Jr., and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Wallace

6373

MOOR v. PALMER 6375

COUNSEL

Ryan Norwood, Esq., Assistant Federal Public Defender, Las

Vegas, Nevada, for petitioner-appellant Mark Moor.

6376 MOOR v. PALMER

Heather D. Proctor, Esq., Carson City, Nevada, for

respondents-appellees Jack Palmer, et al.

OPINION

WALLACE, Senior Circuit Judge:

Petitioner Mark Moor appeals from the district court’s

denial of his petition for a writ of habeas corpus. We have

jurisdiction to hear this appeal pursuant to 28 U.S.C. § 2253.

We review the district court’s denial of Moor’s habeas peti-

tion de novo, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th

Cir. 2009), and we affirm.

I.

In March 1994, Moor pled guilty in a Nevada state court to

using a minor in the production of pornography, in violation

of Nevada Revised Statutes section 200.710. He was sen-

tenced to a term of life with the possibility of parole after five

years. In April 2000, he was released on parole. In April

2002, Moor was arrested for violating certain terms and con-

ditions of his parole. In June 2002, the Parole Board (Board)

found him guilty of parole violations and revoked his parole.

The Board also determined that it would next review and con-

sider Moor for parole in three years. In 2005, he was denied

parole and was told he would again be considered for parole

in another three years. In his federal habeas petition, Moor

challenges the 2005 denial of parole.

A.

Moor argues that he was punished twice for the same

parole violations — once in 2002 when his parole was

revoked, and then again in 2005 when he was denied parole

for another three years — in violation of the Double Jeopardy

Clause of the Fifth Amendment.

MOOR v. PALMER 6377

[1] We point out that Moor did not raise his double jeop-

ardy contention in the district court. Although his federal

habeas petition did take issue with the extension of his incar-

ceration “for three (3) years, past the three (3) year parole vio-

lation term [set in 2002]”, he framed this issue as one of due

process, not double jeopardy. Although we have discretion to

do so, Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006), we

generally do not consider on appeal issues that were not raised

in the habeas petition to the district court. Windham v. Merkle,

163 F.3d 1092, 1103 (9th Cir. 1998).

[2] If we were to consider Moor’s double jeopardy claim

on the merits, it would nevertheless fail. The Double Jeopardy

Clause “protects against multiple punishments for the same

offense.” United States v. DiFrancesco, 449 U.S. 117, 129

(1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717

(1969). But it “does not prohibit the imposition of all addi-

tional sanctions that could, in common parlance, be described

as punishment . . . . The Clause protects only against the

imposition of multiple criminal punishments for the same

offense.” Hudson v. United States, 522 U.S. 93, 98-99 (1997)

(internal quotation marks and citations omitted). Parole revo-

cation is not a criminal penalty for violating the terms of

parole. United States v. Soto-Olivas, 44 F.3d 788, 789 (9th

Cir. 1995) (“revocation is not punishment for the subsequent

events which violate the parole”). It is simply a continuation

of the punishment for the original crime. Id. Therefore, the

revocation of Moor’s parole in 2002 is not the type of crimi-

nal punishment that would trigger the protections of the Dou-

ble Jeopardy Clause.

B.

Moor also contends that the Board’s 2005 denial of parole

violated his rights under the Due Process Clause of the Fifth

Amendment. First, he argues that the state’s failure to release

him three years after his parole revocation violated Nevada

Revised Statutes section 213.1519(1)(b), which provides that,

6378 MOOR v. PALMER

when parole is revoked, the prisoner “[m]ust serve such part

of the unexpired maximum term of his original sentence as

may be determined by the Board.” He urges that the Board’s

2002 decision determined how much of his unexpired sen-

tence he should serve — three years — and did not mean that

he should serve three more years only to be considered for

parole once again. At the end of three years, Moor contends,

his parole should have been automatically reinstated without

further review. Second, Moor argues that the Board failed to

adopt and apply standards for granting parole after revocation

distinct from the standards applied to an initial parole deci-

sion. He argues that such separate standards are required by

Nevada Revised Statutes section 213.10885(1), which directs

the Board to “adopt by regulation specific standards for each

type of convicted person . . . for determining whether to grant

or revoke the parole of a convicted person.” Third, Moor

argues that Nevada Revised Statutes section 213.142(1)

requires parole hearings to be held at least every three years,

yet he was turned away without a hearing in 2005.

To the extent that Moor is requesting habeas relief on the

basis of the Board’s violation or misapplication of Nevada

statutes in and of themselves, he fails to state a basis for fed-

eral habeas relief because “alleged errors in the application of

state law are not cognizable in federal habeas corpus.” Lang-

ford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). To the

extent that Moor is asserting that the Board’s violation or mis-

application of Nevada law violated his federal due process

rights, we reject that argument as well, because Moor has no

liberty interest in parole.

[3] The Supreme Court has held that prisoners have no

constitutional right to release before expiration of a valid sen-

tence even where a state provides for the possibility of parole.

Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442

U.S. 1, 7-8, 10-11 (1979). It is true that a state parole statute

may create a liberty interest, even if the parole decision

involves subjective and predictive considerations, provided

MOOR v. PALMER 6379

that the statute contains mandatory language and imposes sub-

stantive limitations on the discretion of those making the

parole decision. Bd. of Pardons v. Allen, 482 U.S. 369, 375-

79 (1987). We have held that

[w]hether a state statute provides such a protectable

entitlement depends on the structure and language of

the statute, as well as the state courts’ interpretation

of the scope of the interest. . . . If a statutory scheme

requires the board to release a prisoner once the

board determines that certain necessary prerequisites

exist, that scheme may give rise to a liberty interest

in early release. . . . Significant to the determination

of whether parole or other early release statutes

create such a protectable liberty interest is their use

of mandatory language.

Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir. 1989) (cita-

tions omitted).

[4] Nevada’s statutory parole scheme, however, expressly

disclaims any intent to create a liberty interest. See Nev. Rev.

Stat. § 213.10705 (legislative declaration that “the release or

continuation of a person on parole or probation is an act of

grace of the State . . . . and it is not intended that the establish-

ment of standards relating thereto create any such right or

interest in liberty or property . . . .”). The statute does not use

mandatory language; instead, it provides that “the Board may

release on parole a prisoner who is otherwise eligible for

parole” and lists factors to be considered in exercising that

discretion. Nev. Rev. Stat. § 213.1099(1), (2) (emphasis

added). The Nevada Supreme Court has held that the discre-

tion conferred on the Board by Nev. Rev. Stat. § 213.1099

“does not confer a legitimate expectation of parole release and

therefore does not create a constitutionally cognizable liberty

interest” in parole. Severance v. Armstrong, 620 P.2d 369,

370 (Nev. 1980).

6380 MOOR v. PALMER

[5] The provisions of Nevada law specifically dealing with

parole revocation likewise do not create a protectable entitle-

ment to parole for a prisoner whose parole has been revoked.

The law provides only that a prisoner whose parole has been

revoked “[m]ust serve such part of the unexpired maximum

term of his original sentence as may be determined by the

Board.” Nev. Rev. Stat. § 213.1519(1)(b). This statute does

not endow Moor with a protectable interest in serving no

more than the term initially identified by the Board, and it

does not suggest that the Board’s determination at the time of

revocation is necessarily the final word. It is not inconsistent

with the statutory text for the Board to decide, at the time of

revocation, that a parolee should serve a certain amount of

time and then be reevaluated for suitability for parole.

Because Nevada law does not create a liberty interest in

parole, Moor’s due process claim must be rejected.

II.

At the time of Moor’s conviction, an inmate with his crimi-

nal record would be evaluated for parole according to the fac-

tors described in Nevada Revised Statutes section 213.1099.

That statute directs the Board to consider

(a) Whether there is a reasonable probability that the

prisoner will live and remain at liberty without vio-

lating the laws;

(b) Whether the release is incompatible with the wel-

fare of society;

(c) The seriousness of the offense and the history of

criminal conduct of the prisoner;

(d) The standards adopted pursuant to NRS

213.10885 and the recommendation, if any, of the

Chief; and

MOOR v. PALMER 6381

(e) Any documents or testimony submitted by a vic-

tim notified pursuant to NRS 213.130.

Nev. Rev. Stat. § 213.1099(2); see also Nev. Rev. Stat.

§ 213.10885(2) (stating that factors to be considered by the

Board “must include, but are not limited to: (a) The severity

of the crime committed; (b) The criminal history of the per-

son; (c) Any disciplinary action taken against the person

while incarcerated; (d) Any previous parole violations or fail-

ures; (e) Any potential threat to society or himself; and (f)

The length of his incarceration”).

Prior to 1997, Nevada law provided that persons convicted

of sexual assault or attempted sexual assault could not be

paroled unless they were first evaluated by a Psychological

Review Panel (Review Panel) consisting of an administrator

from the state’s department of human services (or a designee),

the director of the department of prisons (or a designee), and

a licensed psychologist or psychiatrist. Nev. Rev. Stat.

§ 200.375 (1995). In order for a prisoner subject to this law

to be eligible for parole, the Review Panel had to certify that

the inmate was under observation while in prison and was not

“a menace to the health, safety or morals of others.” Id. At the

time of Moor’s conviction, this psychological review require-

ment did not apply to him.

In 1997, however, the Nevada legislature broadened the

requirement of psychological review as a precondition for

parole. Cf. Nev. Rev. Stat. § 200.375 (1995) with Nev. Rev.

Stat. § 213.1214. See Stockmeier v. Psychological Review

Panel, 135 P.3d 807, 811 & n. 17 (Nev. 2006) (citing 1997

Nev. Stat., ch. 524, § 10, at 2506; id. § 22, at 2513). The 1997

revision expanded the list of offenses that would trigger the

psychological review procedure, to include prisoners such as

Moor who were convicted of an “offense involving pornogra-

phy and a minor.” Nev. Rev. Stat. § 213.1214(5)(e). The law

also provided that inmates subject to psychological review

procedures could not be paroled unless a Panel first “certi-

6382 MOOR v. PALMER

fie[d] that the prisoner was under observation while confined

. . . and does not represent a high risk to reoffend based upon

a currently accepted standard of assessment.” Nev. Rev. Stat.

§ 213.1214(1).

Therefore, when Moor was first considered for parole in

1999, the Board applied section 213.1214, as it had been

amended in 1997, to him. Moor was duly certified by a

Review Panel and released on parole. After his 2002 parole

revocation and three more years of incarceration, he was

again considered for parole in 2005. Once more, the state

applied the procedures described in section 213.1214 to Moor.

A Review Panel evaluated Moor’s suitability for re-release;

this time, however, the Review Panel declined to issue a certi-

fication, resulting in the denial of parole to Moor.

Moor argues that applying section 213.1214 to a prisoner

whose original conviction predates passage of that law vio-

lates the constitutional prohibition on ex post facto laws,

United States Constitution, Article I, section 10, and that

therefore the Board’s use of the psychological evaluation pro-

cedures in his case was unconstitutional.

The government argues initially that, because Moor submit-

ted to the Review Panel process in 1999, he waived any sub-

sequent challenges to those requirements. Unsurprisingly, the

government offers minimal reasoning in support of this asser-

tion. Indeed, it is unclear how Moor could have brought an ex

post facto challenge in 1999, because at that time he obtained

a certification from the Review Panel and was released on

parole, and therefore suffered no harm traceable to the psy-

chological review requirement.

[6] Moving to the merits, the Ex Post Facto Clause prohib-

its laws that retroactively increase the penalty for a crime.

Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995). “A

law violates the Ex Post Facto Clause if it is 1) retroactive —

it applies to events occurring before its enactment; and 2) det-

MOOR v. PALMER 6383

rimental — it produces a sufficient risk of increasing the mea-

sure of punishment attached to the covered crimes.” Brown v.

Palmateer, 379 F.3d 1089, 1093 (9th Cir. 2004) (internal quo-

tation marks, citations and alterations omitted). Although the

Supreme Court has not adopted “a single formula for identify-

ing which legislative adjustments, in matters bearing on

parole, would survive an ex post facto challenge,” Garner v.

Jones, 529 U.S. 244, 252 (2000), it has said that “[t]he ques-

tion is whether the amended [rule] creates a significant risk of

prolonging [the prisoner’s] incarceration,” and that there is no

constitutional violation where the legislative change produces

“only the most speculative and attenuated possibility of pro-

ducing the prohibited effect.” Id. at 251 (internal quotations

and citation omitted). “[T]he focus of the ex post facto inquiry

is not on whether a legislative change produces some ambigu-

ous sort of ‘disadvantage,’ nor . . . on whether an amendment

affects a prisoner’s opportunity to take advantage of provi-

sions for early release.” Morales, 514 U.S. at 506 n.3 (internal

quotation marks omitted), and “the question of what legisla-

tive adjustments will be held to be of sufficient moment . . .

must be a matter of degree.” Id. at 509 (internal quotation

marks and citations omitted).

[7] Here, section 213.1214 was applied retroactively to

Moor. He was convicted in 1994, and the psychological

review requirement was revised and applied to him by laws

enacted in 1997. His eligibility for parole was clearly

impacted by a law passed after he committed his offense.

Weaver v. Graham, 450 U.S. 24, 31 (1981) (law altering

availability of credits for good behavior was retroactive

because it “changes the legal consequences of acts completed

before its effective date”); Himes v. Thompson, 336 F.3d 848,

854 (9th Cir. 2003) (“Parole eligibility affects the length of a

prison term and therefore affects the measure of punishment

attached to the original crime,” and thus new regulations

regarding re-release after parole revocation were retroactive

because they affected punishment for crimes committed

before the regulations were passed).

6384 MOOR v. PALMER

[8] We will therefore turn to the second question: whether

the new rule “creates a significant risk of prolonging [Moor’s]

incarceration.” Garner, 529 U.S. at 251; see also Brown, 379

F.3d at 1095 (second question of the ex post facto analysis

“asks whether the retroactive statute works to some signifi-

cant disadvantage to a petitioner, creating a ‘significant risk’

that the statute’s application will increase the length of incar-

ceration”). We do not, however, grant habeas relief where the

claim was denied on the merits in state court unless the state

court decision:

(1) resulted in a decision that was 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 decision is contrary to Supreme Court

precedent if a state court “applies a rule that contradicts the

governing law” set forth in Supreme Court cases or “con-

fronts a set of facts that are materially indistinguishable” from

a relevant Supreme Court precedent but arrives at a different

result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A

decision unreasonably applies Supreme Court precedent if it

applies, extends, or fails to extend the governing rules in a

way that is not just incorrect, but objectively unreasonable. Id.

at 409-10; Doody v. Schriro, 596 F.3d 620, 634 (9th Cir.

2010).

Applying the above principles, we conclude that the

Nevada courts’ denial of habeas relief in this case did not

result in a decision that was contrary to, or involved an unrea-

sonable application of, clearly established Federal law as

embodied in Supreme Court precedent. The Nevada Supreme

Court rejected Moor’s ex post facto claim, reasoning that

“[t]here is no ex post facto violation when the law merely

MOOR v. PALMER 6385

alters the method of imposing a penalty and does not change

the quantum of punishment,” and that “requiring [Moor] to be

certified before release on parole does not constitute an addi-

tional punishment.” The court did not explicitly set out the

“controlling inquiry” of “whether retroactive application of

the change . . . created ‘a sufficient risk of increasing the mea-

sure of punishment.’ ” Garner, 529 U.S. at 250, citing Mora-

les, 514 U.S. at 509. Nevertheless, the Nevada Supreme Court

did cite Morales, suggesting that it identified the governing

rule, or at least did not apply a rule that contradicted the

Morales rule. The question then becomes whether the Nevada

Supreme Court unreasonably applied the Morales rule to the

facts of this case. See Himes, 336 F.3d at 852.

It is not an objectively unreasonable application of

Supreme Court precedent to conclude that subjecting Moor to

the Review Panel certification process would not create a sub-

stantial risk that he would serve more prison time than if he

had been evaluated for parole under standards applicable at

the time of his conviction, as found in Nev. Rev. Stat.

§ 213.1099. If the Review Panel cannot certify that a prisoner

does not present a “high risk” of reoffense, that same prison-

er’s suitability for parole under section 213.1099 standards is

doubtful: Section 213.1099 requires the Board to consider

whether there is a “reasonable probability” that the prisoner

will abide by the law and compatibility of the prisoner’s

release with “the welfare of society.”

Moor argues that the Review Panel process is fundamen-

tally different than the decisional process of the Board in typi-

cal parole determinations. He asserts that, although the Board

considers a prisoner’s risk of recidivism, the Board need not

make any affirmative findings or consider any one factor to

be dispositive of the parole determination. The Review Panel,

in contrast, must affirmatively certify that the person does not

pose a high risk of reoffending. But it is difficult to conceive

of the inmate who has a significant chance of obtaining parole

under the usual Board standards, but would be unable to

6386 MOOR v. PALMER

obtain parole because of the Review Panel certification proce-

dures. By way of comparison, in Morales, the Court upheld

a retroactive change to the frequency of parole hearings for

certain inmates, in part because the change “applie[d] only to

a class of prisoners for whom the likelihood of release on

parole is quite remote.” 514 U.S. at 510; see also Garner, 529

U.S. at 256 (holding that the record did not support the con-

clusion that decreasing the frequency with which prisoners

who were convicted of multiple killings were reconsidered for

parole created more than a speculative risk of prolonging

incarceration).

Moor attempts to distinguish Morales and Garner on the

ground that those cases considered laws that changed only the

timing of parole hearings, and not the substantive standards to

be used at those hearings. Moor also argues that he is chal-

lenging a law that restricts the discretion of the Board, rather

than expanding it, as the statutes involved in Morales and

Garner had done. But these considerations were not disposi-

tive in Morales and Garner; rather, they simply aided the

Court’s analysis of whether there was sufficient risk of

increased incarceration.

Moor also argues that the Review Panel throws up a “high

hurdle” that must be cleared before the Board can exercise its

discretion, similar to the hurdle held unconstitutional in Miller

v. Florida, 482 U.S. 423, 435 (1987). In Miller, the Court held

impermissible a law that retroactively revised sentencing

guidelines and required a judge departing from those guide-

lines to give clear and convincing reasons. Id. However, the

“hurdle” represented by the Review Panel here is not particu-

larly onerous; the Review Panel need only certify that the

inmate does not pose a high risk of reoffending. Moreover, it

is even less likely that the procedures would pose a significant

risk of prolonging incarceration for prisoners who, like Moor,

have already violated the terms of their parole once before.

[9] Moor urges the similarity between this case and Brown,

which also involved two sets of parole decisionmakers apply-

MOOR v. PALMER 6387

ing two different sets of standards, with one set having power

to override the other’s determination. But the change in law

at issue in Brown represented a far greater threat of increased

incarceration: there, the prior law permitted a parole board to

postpone a parole date only if there was a professional “diag-

nosis of present severe emotional disturbance such as to con-

stitute a danger to . . . the community.” 379 F.3d at 1091. The

new law allowed a parole board to postpone a parole date if

the board believed the prisoner suffered from “a mental or

emotional disturbance” that made him a danger to the com-

munity, even without — or contrary to — a professional diag-

nosis, and even if the disturbance was not severe. Id. at 1095.

Thus, the law challenged in Brown allowed a parole board to

postpone parole on less serious grounds, and without, or even

in contravention of, the opinion of a mental health profes-

sional. Here, under section 213.1214, the Board retains the

same basic discretion to grant or deny parole; the Legislature

simply requires a specialized panel (including a psychologist

or psychiatrist) to first make a threshold inquiry of whether

the inmate poses a “high risk to reoffend,” a consideration

which would be relevant to the Board’s section 213.1099

analysis anyway. In Brown, importantly, we gave less defer-

ence to the state court’s denial of Brown’s habeas petition,

because the state courts had “provided no ratio decidendi to

review.” Brown, 379 F.3d at 1092, citing Delgado v. Lewis,

223 F.3d 976, 982 (9th Cir. 2000).

[10] We therefore hold that the psychological review

requirement does not create a significant risk of increased

punishment on its face. Where, as here, “the rule does not by

its own terms show a significant risk, the respondent must

demonstrate . . . that its retroactive application will result in

a longer period of incarceration than under the earlier rule,”

such that “as applied to his own sentence the law created a

significant risk of increasing his punishment.” Garner, 529

U.S. at 255. Moor expressly argues that further factfinding is

unnecessary, choosing to rest his ex post facto claim on a

6388 MOOR v. PALMER

facial challenge to the statute. A remand is thus unnecessary

and Moor’s facial ex post facto challenge is rejected.

AFFIRMED.