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Moore v. Biter

United States Court of Appeals, Ninth Circuit

August 7, 2013

Roosevelt Brian Moore, Petitioner-Appellant,
v.
M. D. Biter, Warden, Respondent-Appellee

Argued and Submitted February 6, 2013 Pasadena, California

Appeal from the United States District Court for the Central District of California, D.C. No. 2:11-cv-04256-JAK-FFM John A. Kronstadt, District Judge, Presiding

COUNSEL

Patricia A. Young (argued), Deputy Federal Public Defender; Sean K. Kennedy, Federal Public Defender, Los Angeles, California, for Petitioner-Appellant.

Mary Sanchez (argued), Deputy Attorney General; Kenneth C. Byrne, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Dane R. Gillette, Chief Assistant Attorney General; Kamala D. Harris, Attorney General of California, Los Angeles, California, for Respondent-Appellee.

Before: Harry Pregerson, William A. Fletcher, and Jacqueline H. Nguyen, Circuit Judges.

SUMMARY[*]

Habeas Corpus

The panel reversed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging a 254-year sentence for a juvenile nonhomicide offender.

The panel first held that Graham v. Florida, 130 S.Ct. 2011 (2010), which prohibits the punishment of life without possibility of parole for juvenile nonhomicide offenders like petitioner, applies retroactively on collateral review. The panel then held that the state court's failure to apply Graham to petitioner's sentence was contrary to clearly established federal law.

OPINION

PREGERSON, Circuit Judge:

In Graham v. Florida, 130 S.Ct. 2011 (2010), the United States Supreme Court clearly established that the Eighth Amendment prohibits the punishment of life without parole for juvenile nonhomicide offenders. As compared to adults, juvenile nonhomicide offenders are still developing their characters, have diminished moral culpability, and possess greater capacity to change. Id. at 2026–27. The Constitution requires the State to give juvenile nonhomicide offenders "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation." Id. at 2030.

In 1991, Roosevelt Brian Moore received a term-of-years sentence of 254 years and four months for nonhomicide crimes he committed when he was sixteen years old. The earliest Moore could be considered for parole is after serving 127 years and two months. Because Moore would have to live to be 144 years old to be eligible for parole, his chance for parole is zero. Moore filed state habeas petitions and a federal habeas petition challenging his sentence under Graham. All petitions were denied.

We have jurisdiction over Moore's appeal pursuant to 28 U.S.C. §§ 1291 and 2253. The facts in Graham are materially indistinguishable from the facts in Moore's case. Accordingly, the state court's failure to apply Graham was "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We thus REVERSE the district court's denial of Moore's habeas petition and REMAND to the district court with instructions to grant Moore's habeas petition.

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Moore of sexually victimizing four separate women on four occasions during a five-week period in February and March 1991. At the time the crimes were committed, Moore was sixteen years old. Moore did not have a prior criminal record, but was tried and sentenced as an adult.

A jury found Moore guilty of a total of twenty-four counts: nine counts of forcible rape, seven counts of forcible oral copulation, two counts of attempted second degree robbery, two counts of second degree robbery, forcible sodomy, kidnaping with the specific intent to commit a felony sex offense, genital penetration by a foreign object, and the unlawful driving or taking of a vehicle. The jury found that Moore also used a firearm while committing his crimes.

Before the sentencing hearing, the California Department of the Youth Authority submitted a psychological report to the trial court regarding Moore's capacity to change. One staff psychologist, Dr. Mahoney, found that "there is no reason to believe that [Moore] would not continue to be dangerous well into the future." The rest of the clinical staff, however, concluded that: "[Moore] does not appear to be fixed in his antisocial value system as he displays a sense of motivation to change in overcoming his delinquent lifestyle." A casework specialist found that Moore was "severely depressed with a history of impulsivity and some immaturity" and has "expressed a willingness to change." The clinical team's "impression [was that Moore] has the mental and physical capacity to benefit from rehabilitation."

At the sentencing hearing, the trial court agreed with the "minority opinion of [Dr.] Mahoney." The trial court sentenced Moore to consecutive sentences totaling 254 years and four months. Moore is not eligible for parole until he serves half of his sentence, 127 years and two months. Cal. Penal Code § 2933(a) (1991). Thus, Moore will spend his life in prison because he would have to live to be 144 years old to be eligible for parole.

POST-CONVICTION PROCEEDINGS

Moore appealed his sentence to the California Court of Appeal, which affirmed his sentence in an unpublished disposition on May 27, 1993. Moore did ...


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