# George W. Nulph v. Dave Cook, Director of the Department of Corrections Hardy Myers, Attorney General of the State of Oregon > Court of Appeals for the Ninth Circuit · June 26, 2003 · 333 F.3d 1052 URL: https://www.frixlaw.com/law-library/cases/9496185 ## Case - **Full name:** George W. NULPH, Petitioner-Appellant, v. Dave COOK, Director of the Department of Corrections; Hardy Myers, Attorney General of the State of Oregon, Respondents-Appellees - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** June 26, 2003 - **Citations:** 333 F.3d 1052; 2003 Daily Journal DAR 7072; 2003 Cal. Daily Op. Serv. 5598; 2003 U.S. App. LEXIS 12924; 2003 WL 21468552 - **Precedential status:** Published - **Opinion:** Dissent by King - **Judges:** Ferguson, Fletcher, King - **Cited by:** 78 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496185 ## How later opinions describe it (automated extraction) - stating that due process “requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge[;] [Otherwise, the defendant will be chilled in the exercise of his right to challenge a conviction or sentence” - stating that “AEDPA’s deferential standard ... does not apply [where] the state court d[oes] not reach the merits of [the petitioner]’s due process claim” ## Opinion text KING, District Judge, dissenting: I respectfully dissent. In my view, the presumption of vindictiveness did not arise in this case, and petitioner has made no showing of actual vindictiveness so as to be entitled to habeas relief. It is, of course, well-settled that due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Alabama v. Smith, 490 U.S. 794, 798 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 725 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969)). In order to ensure the efficacious use of the prophylactic rule announced in Pearce , the Court clarified that “[wjhile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness does not apply in every case where a convicted defendant receives a higher sentence on retrial.” Id. at 799 , 109 S.Ct. 2201 (quoting Texas v. McCullough, 475 U.S. 134, 138 , 106 S.Ct. 976 , 89 L.Ed.2d 104 (1986)) (internal quotations omitted). Instead, the Pearce presumption only applies to situations “in which there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority. Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness[.]” Smith, 490 U.S. at 799-800 , 109 S.Ct. 2201 . In Smith , the judge sentenced the defendant to 30 years imprisonment after entry of a guilty plea. Defendant then moved to withdraw his guilty plea, which the trial court denied. The appellate court reversed and remanded for trial. The jury convicted defendant, and the same judge sentenced him to life imprisonment plus a consecutive prison term of 150 years. At sentencing, the judge explained that he imposed the harsher sentence because when he accepted the defendant’s guilty plea, he had knowledge of only the defendant’s version of the events. But after a full jury trial, the judge had heard all of the evidence, including the nature of the crimes and the impact on the victims. Smith, 490 U.S. at 795-97 , 109 S.Ct. 2201 . *1063 The Court concluded that the harsher sentence on remand was insufficient to raise the presumption of vindictiveness because a judge sentencing a defendant on a fuller record provided “enough justifications for a heavier second sentence that it cannot be said to be more likely than not that a judge who imposes.one is motivated by vindictiveness.” Id. at 802 , 109 S.Ct. 2201 . After Smith , we know the fact that a harsher sentence was imposed after reversal and remand from a higher tribunal does not necessarily demonstrate a reasonable likelihood of vindictiveness where the record reveals other justifications for the disparity. Thus, any contemporaneous explanations by the sentencing authority must be considered in determining whether the presumption applies in the first place, and not merely as potential bases for rebutting the presumption. Here, the majority concludes that “[b]e-cause the Board imposed a harsher sentence (45 more years) on direct remand from Nulph’s successful challenge to its retrospective application of the new matrix-range method, and because the Board’s reasons for increasing Nulph’s sentence do not ‘affirmatively appear,’ (citation omitted), there is a reasonable likelihood of vindictiveness.” I disagree. The record of the Board hearing after remand shows that Nulph stated that he wanted the application of the pre-1987 “all or nothing” rule. The following discussion took place at the outset of the hearing: Ms. Middle: (The Board Chair) Before we proceed, I want to make sure I understand what your position is today. You’re very aware that there is (sic) two structures involved, two potential ways that the Board can consider setting your matrix term, okay. We’ll (sic) be often referred to as the old set of rules which is prior to '87, and the newer rules. My understanding from your appellate decision is that you would like us to consider what was considered the former rules. It’s kind of an all or nothing deal in terms of your minimum sentences. Mr. Nulph: Yes. Ms. Middle: Okay. And is that your understanding of how you want us to view this matter today? Mr. Nulph: Yes. From the foregoing, it is abundantly clear that Nulph wanted the Board to apply the pre-1987 rules whereby the Board was constrained to either override all or none of the minimum sentences imposed by the judge. This position was fully consistent with that which Nulph had taken during the prior habeas proceedings. The majority does not discuss Nulph’s election of the “all or nothing” rule in its consideration of whether the presumption arises, but only in its review of whether the respondent rebutted the presumption. I disagree with this analytical framework. Nulph’s election is relevant to whether the presumption arises at all. In any event, regardless of where in that framework we consider Nulph’s election, I believe the majority errs when it states that there is insufficient evidence to show that Nulph elected the “all or nothing” rule. This assertion is based on the questionable premise that the Board’s statements were somehow ambiguous, and that Nulph might have thought he was electing to have the old matrix-range method apply as opposed to his election of the “all or nothing” rule on overriding the minimum sentences. Viewed in context, the Board’s questions were unambiguous. There is no basis for speculating that Nulph might have thought that the Board was referring to anything other than how to deal with the minimum sentences. This is made obvious by the fact that even Nulph has not *1064 argued on this appeal that the statements were ambiguous, or that he had misunderstood the gist of the Board’s initial inquiry. The District Judge found that Nulph had elected to have the Board apply the “all or nothing” rule. This finding of fact is not clearly erroneous and should not be disturbed on appeal. 1 Because Nulph’s election presented it ■with a choice of either upholding or overriding all of the minimum sentences, the Board reasonably concluded that overriding all was not a viable option in light of Nulph’s previous and current criminal conduct. 2 As the Board explained, Mr. Nulph is a difficult case to handle. The choices are not particularly appealing to the Board.... [T]he previous Board set you at 360 months and as I look at the record ... the finding was not so much that they were setting you at a mid range, but what their comments were is that they felt that was appropriate for the criminal conduct that was involved in your past history is what they were looking at. The present matrix system as we look at it under the current calculations does not even get it to that range and the Board is concerned that your criminal conduct is aggravated and such a factor that being in that matrix range is just an inappropriate range without any form of the míni-mums. We have considered the mitigation and aggravating factors and have rejected all of those and find them moot since the decision of the Board is unanimous and that is that we are going to uphold all the mínimums. [Y]our conduct is such that you are too dangerous to risk that chance that you will be getting out anytime soon and certainly within seven years or anything else is way too soon to be considering that. The record shows affirmatively that the Board imposed the higher sentence in light of Nulph’s election and the constraints imposed by the “all or nothing” rule. 3 As in Smith , these changed circumstances are sufficient justifications such that “it cannot be said to be more likely than not that [the Board was] motivated by vindictiveness.” See Smith, 490 U.S. at 802 , 109 S.Ct. 2201 . 4 *1065 Nor does our decision in Bono v. Benov, 197 F.3d 409 (9th Cir.1999), support the majority’s conclusion. Bono stands only for the proposition that in the absence of a triggering event, a court cannot presume vindictiveness. Id. at 417 . See Kindred v. Spears, 894 F.2d 1477, 1480 (5th Cir.1990) (holding that “[a]s a matter of logic, vindictiveness becomes a danger only where an event prods the sentencing court into a posture of self-vindication.”). This in no way implies that where there is a triggering event, a court must presume vindictiveness. If Bono were read in this manner, it could not be reconciled with the Supreme Court’s decision in Smith . Moreover, the facts of Bono distinguish it from this case. There, we upheld a presumption of vindictiveness because there was a triggering event and no evidence suggesting a motive other than vindictiveness. In fact, we specifically noted that the parole, date extension “was made without a contemporaneous statement of reasons in support of the extension.” Bono, 197 F.3d at 412 . Contrary to the majority’s statement, the record of the hearing amply reflects the Board’s contemporaneous reasons for its decision. For the foregoing reasons, I cannot join in the majority’s conclusion that the presumption of vindictiveness arose in this case. The Pearce presumption “does not apply in situations where the possibility of vindictiveness is speculative.” Texas v. McCullough, 475 U.S. 134, 139 , 106 S.Ct. 976 , 89 L.Ed.2d 104 (1986). On this record, the possibility of vindictiveness is speculative, at best. As I would decline to apply the presumption of vindictiveness, I do not reach the question of whether respondent has rebutted the presumption. In the absence of the presumption of vindictiveness, petitioner bears the burden of proving actual vindictiveness. Smith, 490 U.S. at 799-800 , 109 S.Ct. 2201 . In this case, there is no evidence in the record to support a finding of actual vindictiveness. Accordingly, petitioner is not entitled to habeas relief. 5 I would affirm the judgment of the District Court, albeit on different grounds. . The majority’s suggestion that Nulph’s election was not made knowingly or with full awareness of the consequences of his choice misses the mark. This case is not about whether sufficient inquiry was made of Nulph to ensure his knowing and intelligent election of the "all or nothing" rule. It is about whether there is a reasonable likelihood the Board increased Nulph's sentence as a product of actual vindictiveness. Regardless of whether Nulph acted knowingly, the record shows that the Board believed Nulph desired the application of the "all or nothing” rule. There is no evidence to suggest that the Board was aware of Nulph’s alleged confusion and exploited it vindictively. . Prior to the current convictions for kidnapping, felon in possession of a firearm, multiple counts of rape, and multiple counts of sodomy, Nulph had been convicted of murder and kidnapping. . The majority states that we cannot blindly accept the Board's proffered reasons. I agree. However, we do not blindly accept the Board’s proffered reasons simply because we decline to substitute our judgment for that of the Board. In deciding whether the presumption arises, our inquiry is not whether we agree with the reasons or like the result. It is simply whether, in light of the Board's proffered reasons, there is a reasonable likelihood that the increased sentence was the product of actual vindictiveness. There is no such showing on this record. . The majority finds much fault with the Board’s decision, and claims that it could have exercised a range of other options that might not have resulted in the dramatic in *1065 crease in Nulph’s sentence. Given the facts of this case, even if the Board were incorrect in its assumptions and erred in its judgment, the majority does not explain how these alleged shortcomings show a reasonable likelihood that the higher sentence was the product of actual vindictiveness. Moreover, because the majority made these assertions when considering whether the Board had overcome the presumption of vindictiveness, they need not be addressed further because, in my view, the burden never shifted to the respondent to rebut any presumption. . Because the majority granted habeas relief on the basis of the presumption of vindictiveness, it did not need to reach petitioner’s argument that the Board’s action violated the rule announced in Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). Because I would deny habeas relief on the claim of vindictive sentencing, I would reach, but reject, Petitioner's Apprendi claim because we have since concluded that “Ap-prendi does not apply retroactively to cases on initial collateral review.” United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir.2002). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496185. Public record. Not legal advice.