Nulph v. Cook, 01-35556.
| Citation | 333 F.3d 1052 |
| Decision Date | 26 June 2003 |
| Docket Number | No. 01-35556.,01-35556. |
| Parties | 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 | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Wendy R. Willis, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant.
Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondents-appellees.
Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-98-00445-MFM.
Before: FERGUSON, W. FLETCHER, Circuit Judges, and KING,* District Judge.
Opinion by Judge FERGUSON; Dissent by District Judge KING.
Petitioner/Appellant George William Nulph appeals the District Court's denial of his habeas petition, which alleged that the Oregon State Board of Parole ("Board") vindictively increased his sentence from 30-years to 75-years imprisonment after he prevailed in this Court on a previous habeas action challenging the Board's retrospective application of two Oregon sentencing rules. The District Court denied the habeas petition, rejecting the Magistrate Judge's recommendation to grant relief. We reverse.
In 1986, Nulph was convicted by a jury in Oregon state court of multiple offenses relating to a kidnapping and rape. The trial court found Nulph to be a dangerous offender pursuant to Oregon Revised Statute § 161.725 and sentenced him to seven 30-year indeterminate terms (with 15-year minimum terms) and one 5-year term. Five of the 30-year terms ran consecutively. The court imposed a maximum sentence of 155 years, with a minimum of 75 years.
In accordance with Oregon's two-step procedure for sentencing, the Board held a hearing in 1987 to set Nulph's release eligibility date.1 See Nulph v. Faatz, 27 F.3d 451, 452-53 (9th Cir.1994) (). Because the trial court had imposed a minimum term of imprisonment, the Board had the option either to uphold the judicially imposed minimum term or to override it and calculate Nulph's release eligibility date based on a matrix range. Id. at 453.
Under the administrative rule in effect at the time of Nulph's offense, the Board was required to treat two or more consecutive judicially imposed minimum terms as a "single, unified term and either override them all or uphold them all." Id. (). In 1987, the administrative rule was amended to permit the Board to override "`one or more of the judicially imposed minimums.'" Id. at 454, (quoting Or. Admin. R. § 255-35-023(3) (1987) (hereinafter "one-or-more rule")).
In Nulph's case, the Board applied the new one-or-more rule to override three of his 15-year minimum terms. It also applied a new matrix range method, enacted after the time of Nulph's offense, to set his matrix range at 310 to 414 months.2 Id. at 454. The Board thus set Nulph's release eligibility date for the year 2017, following a term of 360-months imprisonment. Id. at 453-54.
In explaining why it did not uphold all the judicially imposed terms, the Board decision ("1987 Board decision") stated that "the minimum terms [are] not an appropriate penalty for the criminal offense and the minimum terms are not necessary to protect the public." The Board further explained: "We feel that the sentences or the minimums that were imposed by the courts is [sic] excessive and that setting you within your guideline range of 360 months, is an appropriate sanction at this point for your criminal conduct." Id. at 454 n. 5.
After exhausting his state remedies, Nulph filed a federal writ of habeas corpus, challenging the 1987 Board decision as violative of the Ex Post Facto and Due Process Clauses because it applied two administrative rules that were not in effect at the time of his offense. Id. at 454. The District Court denied the petition.
On appeal, we granted habeas relief, holding that the "retrospective application of the new method for calculating the matrix range violated the Ex Post Facto Clause." Id. However, we rejected Nulph's facial ex post facto challenge to the Board's use of the new one-or-more rule to override three of his minimums, as opposed to the all-or-nothing rule in effect at the time of Nulph's offense. Id. at 454, 457. Moreover, we explicitly declined to address whether the partial override violated ex post facto and due process principles as applied to Nulph. Id. at 457.
Based on the Board's retrospective application of the new method for calculating the matrix range, we vacated Nulph's parole eligibility date and remanded for re-sentencing. Id. The District Court remanded to the Board for reconsideration of Nulph's sentence under the old method for calculating the matrix range, explicitly noting that habeas relief had been denied in all other respects.
On remand, the Board held a hearing to recalculate Nulph's sentence. On February 22, 1995, Nulph appeared with an inmate legal assistant. At the opening of the hearing, a Board member stated: In response, Nulph stated: "Yes." The Board member asked if that was his understanding, and Nulph responded affirmatively. Nulph deferred all further questions to the inmate legal assistant, who proceeded to identify several alternatives, including: overriding all the minimum terms, departing downwards for mitigating factors, and adjusting upwards for aggravating factors.
After deliberation, the Board unanimously voted to "sustain [all the] judicially imposed minimum[s]." Accordingly, the Board reset Nulph's term of imprisonment from 360-months to 900-months imprisonment. The Board decision ("1995 Board decision") reasoned: "The minimum term is an appropriate sanction for the criminal conduct and [is] necessary for the protection of the public." It noted that it had applied the all-or-nothing rule and used the old matrix-range method. Nulph's parole consideration date was moved from the year 2017 to the year 2062.
On January 16, 1997, Nulph filed a petition for a writ of habeas corpus in the state court, alleging that the 1995 Board decision was unlawful and violated his due process rights under both the federal and state constitutions. Nulph alleged that the Board's action was "retribution because of the petitioner's success on appeal of the Board's earlier decision," and argued that its "apparent vindictiveness is aimed at chilling the appeal rights of petitioner and others." The petition was dismissed without prejudice. The Oregon Court of Appeals affirmed the dismissal without opinion, and the Oregon Supreme Court subsequently denied review. Nulph v. Thompson, 152 Or.App. 153, 951 P.2d 205 (1998), rev. denied, 326 Or. 507, 953 P.2d 395 (1998).
Nulph then filed the instant pro se habeas petition, alleging a federal due process deprivation effected by the Board's resentencing. He asserted that the Board had vindictively increased his sentence from 360 months to 900 months without articulating "how or why the Plaintiff's situation or behavior had deteriorated so dramatically since his previous parole board hearing in 1987 to justify extending his incarceration [by] 45 years."
Magistrate Judge Janice Stewart agreed with Nulph, recommending that the District Court grant habeas corpus relief. The Magistrate Judge found that a presumption of vindictiveness applied under North Carolina v. Pearce, 395 U.S. 711, 725-26, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), limited by Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). She also rejected the State's proffered explanation for the enhanced sentence—that Nulph had elected the all-or-nothing rule—as failing to rebut the Pearce presumption because she found insufficient evidence that he elected the rule. Further, she found that, even under the all-or-nothing rule, the Board could have avoided the drastic increase in the sentence. Thus, she recommended granting relief.
On May 8, 2001, the District Court denied habeas relief. Although the District Court agreed with the Magistrate Judge that the Pearce presumption of vindictiveness applied, it disagreed that the State failed to rebut that presumption. Rather, it concluded that the increase in the sentence was attributable to Nulph's election of the all-or-nothing rule. Finding no evidence of actual vindictiveness, the District Court denied habeas relief. Nulph filed this timely appeal.
We review de novo the District Court's denial of habeas corpus. Baeta v. Sonchik, 273 F.3d 1261, 1263(9th Cir.2001). We review the District Court's factual findings for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116(9th Cir.), cert. denied, 531 U.S. 883, 121 S.Ct. 198, 148 L.Ed.2d 138 (2000).
Because Nulph filed his habeas petition after the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA")'s effective date, AEDPA applies. See Pirtle v. Morgan, 313 F.3d 1160, 1166-67 (9th Cir.2002) (citing Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). "Under AEDPA, federal courts may grant a writ of habeas corpus only if the state court ruling `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 `was based on an unreasonable determination of the facts in...
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