Norris v. Morgan

• Decision Date: 23 September 2010
• Docket Number: No. 08-35645.,08-35645.
• Citation: 622 F.3d 1276
• Parties: Brach Edward NORRIS, Petitioner-Appellant, v. Richard MORGAN, Superintendent of Washington State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

622 F.3d 1276

Brach Edward NORRIS, Petitioner-Appellant,

v.Richard MORGAN, Superintendent of Washington State Penitentiary, Respondent-Appellee.

No. 08-35645.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted March 10, 2010.

Filed Sept. 23, 2010.

COPYRIGHT MATERIAL OMITTED.

Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, WA, for the appellant.

Robert McKenna, Attorney General, and Donna Mullen (argued), Assistant Attorney General, Washington Attorney General's Office, Olympia, WA, for the appellee.

Appeal from the United States District Court for the Eastern District of Washington, Fred L. Van Sickle, District Judge, Presiding. D.C. No. 2:05-cv-05045-FVS.

Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges, and G. MURRAY SNOW, District Judge. ^*

OPINION

BERZON, Circuit Judge:

Brach E. Norris was convicted by a jury of child molestation in the first-degree. Norris had also been convicted of child molestation ten years earlier. The State of Washington's “two strikes” law for repeat sex offenders provides for a mandatory sentence of life in prison without the possibility of parole, and Norris was so sentenced. Invoking the Eighth Amendment's prohibition against cruel and unusual punishment, Norris challenges his sentence as grossly disproportionate to his offense.

The Washington Court of Appeals denied Norris's claim, holding his life-without-parole sentence not grossly disproportionate to his crime. On habeas review, we decide whether the Washington Court of Appeals's decision denying Norris's claim “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1). We conclude that the decision was not contrary to clearly established federal law. Additionally, while finding the issue a close one, we conclude that Norris's Eighth Amendment claim would fail even on de novo review, and thus need not determine whether the state appellate court decision involved an unreasonable application of clearly established federal law. We affirm.

I.

A.

In November 1993, Washington became the first State to enact a “three strikes” law. U.S. Dept. of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, “Three Strikes and You're Out”: A Review of State Legislation 1 (Sept. 1997). Formally titled the Persistent Offender Accountability Act (POAA), Wash. Rev.Code § 9.94A.570 et seq. , the law amended Washington's sentencing scheme to require sentences of life imprisonment without the possibility of parole for defendants who are convicted of a felony defined as a “most serious offense” in Wash. Rev.Code. § 9.94A.030(31), ¹ and have previously been convicted of at least two such offenses on separate occasions. See id. at §§ 9.94A.570, 9.94A.030(36). By “provid[ing] a mandatory sentence based on the seriousness of the crime and a predetermined number of prior convictions,” State v. Thorne, 129 Wash.2d 736, 921 P.2d 514, 528 (1996), the law was designed to deter repeat offenders who commit at least three most serious offenses and “segregat[e] ... [them] from the rest of society,” id. at 532.

In 1996, the Washington Legislature passed a “two strikes” amendment to the POAA. See State v. Morin, 100 Wash.App. 25, 995 P.2d 113, 115 (2000). Under this amendment, defendants who are convicted of certain sex offenses, ² and have previously been convicted of at least one such offense, are classified as persistent offenders and sentenced to life imprisonment without parole. Wash. Rev.Code §§ 9.94A.570, 9.94A.030(36)(b)(ii). ³ The two strikes law's purposes are the same as that of the three strikes statute: incapacitation and deterrence of repeat offenders. See Morin, 995 P.2d at 117.

B.

At approximately 2:00 p.m. on March 5, 2001, Mark Hyndman and three of his four children, including his stepdaughter, C.D., then five years old, went to a McDonald's restaurant in Spokane, Washington, for a late lunch. After they finished eating, Hyndman's children went to play in an enclosed playroom inside the restaurant. As he sat outside the playroom and watched his children play, Hyndman noticed Norris, then 42-years old, sitting alone inside the playroom and making facial expressions at Hyndman's children while they threw balls against netting on the structure in the playroom. He also saw Norris get up and walk back and forth inside the playroom a few times, repeatedly looking up into the tubes on the structure on which some of the children were playing. Hyndman eventually went into the playroom and sat down so he could watch his children more closely.

Norris approached Hyndman and began talking to him. Hyndman, smelling alcohol on Norris's breath, moved away slightly and continued to watch his children. Hyndman's children were in different areas of the playroom at this time-the youngest was playing with some balls, and the others were playing on the slide next to Norris.

At some point, Hyndman, who had been watching his youngest child play with the balls, turned around and saw Norris bend, reach down with one hand, and touch C.D., who had just come down the slide, between the legs. Hyndman immediately grabbed Norris by the shirt and shoved him against a wall inside the playroom. He then shoved Norris outside the playroom, through the McDonald's lobby, and outside the restaurant, yelling to the McDonald's employees to call the police and that Norris had just inappropriately touched his daughter. Once outside, Norris broke free from Hyndman's grasp and ran away, but Hyndman pursued him on foot. Norris eventually ducked behind an air conditioning unit adjacent to a nearby building, but three police officers arrived soon thereafter and took him into custody.

A few days later, Washington charged Norris with one count of child molestation in the first-degree in violation of Revised Code of Washington § 9A.44.083(1). At trial, Hyndman testified that he saw Norris “reach[ ] down to fondle [C.D.]” as she was trying to pull herself off the edge of the slide, touching her genitalia over her clothing and moving his fingers between her legs. Hyndman stated that the touch occurred “very quickly”-a couple of seconds at most-and in “a real sweeping quick motion,” after which Norris “stood right up as if nothing had ever happened.” C.D. also testified at trial, stating that while she was playing on the slide at the McDonald's a man touched her on her “privates,” “[t]he front one.” She also stated that the man had “wiggled” his hand and that she felt his fingers. C.D. could not identify Norris as the man who touched her but indicated that the man who touched her was the same person Hyndman had fought with at the McDonald's. On cross-examination, C.D. testified that the man had not hurt her.

Norris testified in his own defense. He offered an innocent explanation for his conduct, stating that while he was talking to Hyndman he heard a noise, turned to see C.D. on the edge of the slide, and instinctively grabbed her ankle and then placed his hand further up her body-he could not remember exactly where-to steady her, believing that she was going to fall. Norris also testified that he had just gotten off work, drunk two beers, and stopped at the McDonald's to pass the time until his bus came.

At the end of the trial, the trial judge instructed the jury that “[a] person commits the crime of child molestation in the first-degree [in violation of Wash. Rev.Code § 9A.44.083(1) ] when he or she has sexual contact with a person who is less than 12 years old ...,” where “sexual contact” is defined as “any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desires of either party or a third party.” The jury convicted Norris of first-degree child molestation.

Before the sentencing hearing, Norris, who had previously been convicted of first-degree child molestation in 1991, ⁴ filed a motion challenging the application of Washington's two strikes law to his present conviction as cruel and unusual punishment under the federal Constitution's Eighth Amendment. Addressing Andrade v. Attorney General of the State of California, 270 F.3d 743 (9th Cir.2001), rev'd on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003), the trial court noted that “the [Eighth] Amendment does not require strict proportionality between the crime and sentence, but rather it forbids ... extreme sentences that are grossly disproportionate to the crime....” The court then applied a four-factor test adopted by the Washington Supreme Court in State v. Fain, 94 Wash.2d 387, 617 P.2d 720 (1980), taking into account (1) the nature of the crime, (2) the legislative purpose behind the sentencing scheme; (3) the sentence Norris would receive for the same crime in other jurisdictions; and (4) the sentence Norris would receive for similar crimes in Washington. ⁵

The trial court first applied the Fain factors to repeat first-degree child molesters in the abstract and concluded that, “in general[,] as far as an objective look at the sentencing scheme for this case[,] ... application of [the] two strikes law is not cruel and unusual punishment under the [Eighth Amendment].” The trial court next considered whether application of the two strikes law to Norris's specific offense constituted cruel and unusual punishment. The court explained:

I think the question becomes ... is this a child molestation in the first degree [that] is classified as a violent crime and the answer is yes[;] all the elements of child molestation in the first degree were demonstrated beyond a reasonable doubt, and the jury made a finding of guilty in this case.

Unlike the Andrade case where we started out from the get-go with a nonserious, nonviolent, non-threatening charge of shoplifting or theft, we don't start out on that level in this case. We start out with exactly the type of crime that the ... two strikes law is...