Carney v. Okla. Dep't of Pub. Safety

• Decision Date: 28 November 2017
• Docket Number: No. 16-6276,16-6276
• Citation: 875 F.3d 1347
• Parties: Ray Neal CARNEY, Plaintiff–Appellant, v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendant–Appellee. National Association for Rational Sexual Offense Laws; OK Voices; American Civil Liberties Union of Oklahoma, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

875 F.3d 1347

Ray Neal CARNEY, Plaintiff–Appellant,

v. OKLAHOMA DEPARTMENT OF PUBLIC SAFETY, Defendant–Appellee.National Association for Rational Sexual Offense Laws; OK Voices; American Civil Liberties Union of Oklahoma, Amici Curiae.

No. 16-6276

United States Court of Appeals, Tenth Circuit.

Filed November 28, 2017

Andrew D. Barr (Scott F. Llewellyn of Morrison & Foerster, L.L.P., with him on the brief), Denver, Colorado, for Plaintiff–Appellant.

Michael K. Velchik, Assistant Solicitor General (Justin P. Grose, Assistant Attorney General, with him on the brief), Office of the Attorney General, Litigation Division, Oklahoma City, Oklahoma, for Defendant–Appellee.

Brady R. Henderson, ACLU of Oklahoma Foundation, Oklahoma City, Oklahoma, for Amicus Curiae American Civil Liberties Union of Oklahoma.

John J. Korzen, Director, Wake Forest University School of Law, Appellate Advocacy Clinic, Winston–Salem, North Carolina, for Amici Curiae NARSOL & OK Voices.

Before KELLY, MURPHY, and MORITZ, Circuit Judges.

KELLY, Circuit Judge.

Plaintiff–Appellant Ray Carney appeals from the district court's dismissal of his claims under the Eighth and Fourteenth Amendments. Carney v. Okla. Dep't of Pub. Safety, No. 5:16-CV-00484-R, 2016 WL 4250473 (W.D. Okla. Aug. 10, 2016). He also raises an additional First Amendment claim not considered by the district court. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm the district court's dismissal on the Eighth and Fourteenth Amendment claims; the First Amendment claim has been forfeited.

Background

Ray Carney, a state inmate appearing pro se, was convicted of sexually abusing a child in 2010. Upon his release in January 2018,¹ Mr. Carney will be required to register as an aggravated sex offender. Under Oklahoma law, this means he will have to acquire a driver's license that indicates he is a sex offender ("license requirement"). Okla. Stat. tit. 47, § 6-111(E)(1) (2017). Failing to obtain such a license results in cancellation, and continued use of a cancelled license is a misdemeanor. Id. § 6-111(E)(4).

On August 10, 2016, the district court dismissed Mr. Carney's claims under the Eighth and Fourteenth Amendments. Mr. Carney now appeals from that order and makes an additional claim that the license requirement is unconstitutional under the First Amendment. Mr. Carney's notice of appeal was filed on September 15, 2016, six days after the 30–day deadline had lapsed.

Discussion

A. The Timeliness of the Appeal

The district court granted the government's motion to dismiss on August 10, 2016. Mr. Carney's notice of appeal was due 30 days thereafter on September 9. Fed. R. App. P. 4(a)(1)(A). Although the notice of appeal is dated September 9, it was not filed until September 15. On September 16, the clerk of court issued an order to show cause regarding the untimeliness of Mr. Carney's notice of appeal. It noted that the prison mailbox rule could save the untimely notice but that Mr. Carney had not yet fulfilled its requirements. Mr. Carney later declared under penalty of perjury that his notice of appeal was placed (in an envelope marked as "Legal Mail") in the prison mail drop on September 9 with prepaid postage. We exercise our discretion under Fed. R. App. P. 4(c)(1)(B) to permit the later filing of Mr. Carney's declaration and deem the appeal timely. See Fed R. App. P. 4(c)(1) advisory committee's note to 2016 amendment.

B. First Amendment

Mr. Carney first argues that the license requirement violates the First Amendment because it is compelled speech. Supp. Aplt. Br. at 12–21. But "First Amendment" does not appear anywhere in the proceedings below or in Mr. Carney's opening brief. The first time any mention of the First Amendment is made is in Mr. Carney's supplemental opening brief written by court-appointed counsel. Counsel argues that we should construe Mr. Carney's complaint liberally to include such a claim because he appeared pro se in the district court and sufficient factual allegations support such a claim. Aplt. Br. at 27. As we discuss below, this proves too much—Mr. Carney's arguments under the Eighth and Fourteenth Amendments were always clear and organized, making it apparent that he never meant to include a First Amendment argument in the court below.

We will only consider arguments not raised below " ‘in the most unusual circumstances.’ We have consistently stated that ‘a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.’ " United States v. Jarvis, 499 F.3d 1196, 1202 (10th Cir. 2007) (citation omitted) (quoting Lyons v. Jefferson Bank & Tr., 994 F.2d 716, 721 (10th Cir. 1993) ). Although we construe Mr. Carney's pro se papers liberally, Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), we cannot make arguments for him, Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

Mr. Carney argues that the facts he alleged in his district court petition for a declaratory judgment are adequate to form a First Amendment claim. Supp. Aplt. Br. at 26–27. Specifically, he refers to portions of his petition in which he states that the license requirement will force him to tell people about the crimes he has committed. 1 R. 15. But the petition indicates that these facts support his claims made under the Eighth and Fourteenth Amendments, not the First Amendment. Id. at 16 ("This brief will show that the [license requirement] violates numerous constitutional provisions, namely that of cruel and unusual punishment and equal protection.").² At best, Mr. Carney has made a vague reference to a compelled-speech claim, and that is simply not enough. See Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989).

Mr. Carney argues in his supplemental brief that plain error can save any forfeited claims. See Supp. Aplt. Br. at 30–31. However, Mr. Carney includes this plain error argument under the discussion of the Eighth Amendment and Equal Protection claims—not the First Amendment. Mr. Carney also fails to provide any analysis for why plain error saves the forfeited claims. We have previously held that "the failure to argue for plain error and its application on appeal ... surely marks the end of the road for an argument for reversal not first presented to the district court." Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (emphasis added). Mr. Carney's plain error argument on the First Amendment claim is devoid of any analysis, which waives the argument in this court. See McKissick v. Yuen, 618 F.3d 1177, 1189 (10th Cir. 2010) (noting that when a party's "arguments were merely forfeited before the district court, [the] failure to explain ... how they survive the plain error standard waives the arguments in this court."). For these reasons, Mr. Carney both forfeited his First Amendment claim below and waived the argument in this court.

C. Eighth Amendment

Mr. Carney contends that the license requirement constitutes cruel and unusual punishment in violation of the Eighth Amendment. The district court dismissed this contention for failure to state a claim. This court's review is de novo. Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. amend. VIII. Because the license requirement is not cruel and unusual, we need not consider whether it is penal in nature.³

A punishment is cruel and unusual if it is "grossly disproportionate to the severity of the crime." Rummel v. Estelle, 445 U.S. 263, 271, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). "Outside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Id. at 272, 100 S.Ct. 1133. Indeed, the Supreme Court has upheld a life sentence for three theft-based felonies totaling a loss of about $230, id. at 265–66, 100 S.Ct. 1133, a 25–year sentence for stealing golf clubs, Ewing v. California, 538 U.S. 11, 28, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003), a life sentence for possessing 672 grams of cocaine, Harmelin v. Michigan, 501 U.S. 957, 961, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and a 40–year sentence for possessing nine grams of marijuana, Hutto v. Davis, 454 U.S. 370, 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982). The license requirement is certainly not more disproportionate than these examples. Moreover, there are no risks of incarceration or threats of physical harm. See United States v. Juvenile Male, 670 F.3d 999, 1010 (9th Cir. 2012) (explaining that sex offender restrictions, though humiliating, do not constitute cruel and unusual punishment). Accordingly, given the high standard to establish cruel and unusual punishment, we find that the district court was correct in dismissing this claim.

D. Fourteenth Amendment

Last, Mr. Carney contends that the license requirement is unconstitutional under the Fourteenth Amendment. He explains that he, as an aggravated sex offender, has received a harsher punishment than those who are similarly situated to him, namely non-aggravated sex offenders, and others who must register after committing various violent crimes and methamphetamine-related crimes. The district court dismissed this contention for failure to state a claim.

The Fourteenth Amendment ensures that states give their citizens "equal protection of the laws." U.S. Const. amend. XIV, § 1. In other words, states "must treat like cases alike but may treat unlike cases accordingly." Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). Thus, "to assert a viable equal protection claim, [Mr. Carney] must first make a threshold showing that [he was] treated differently from others who were similarly situated to [him]." Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998). If he makes such a showing, we must apply rational basis review to the classification at issue because Mr. Carney is not part of a suspect class and is not alleging a fundamental-right...