Moor v. Baca
| Decision Date | 30 April 2015 |
| Docket Number | Case No. 3:10-cv-00401-RCJ-WGC |
| Parties | MARK MOOR, Petitioner, v. JAMES BACA, et al., Respondents. |
| Court | U.S. District Court — District of Nevada |
This is a counseled amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF #14). Now before the court is respondents' answer to the amended petition (ECF #28). Petitioner filed a reply to the answer (ECF #33).
In March 1994, pursuant to a guilty plea, petitioner was sentenced to five years to life in prison for violating NRS 207.710, which prohibits the use of a minor in the production of pornography. Exh. 1.1 See also Moor v. Palmer, 603 F.3d 658, 660 (9th Cir. 2010) ("Moor I").
In 1997, the Nevada Legislature amended the Psychological Review Panel ("psych panel") requirements for parole, with the result that petitioner was included in the expanded categories of offenders who were required to receive a psych panel certification that they are not at a high risk to reoffend in order to be considered for parole by the Nevada Board of Parole Commissioners ("paroleboard"). Cf. 1997 Nev. Stat., ch. 524, § 10, at 2506; id. § 22, at 2513 with NRS 213.1214; Moor I, 603 F.3d at 662. In 1999, pursuant to the new requirements, the psych panel certified petitioner, and the parole board granted petitioner parole. Id. at 660, 663. Petitioner was released on parole in April 2000 (ECF #14, p. 2; Moor I, 603 F.3d at 660). On April 2, 2002, petitioner was arrested for violating terms and conditions of his parole. Id. In June 2002, the parole board found petitioner guilty of parole violations and revoked his parole. Id.
The psych panel declined to certify petitioner as not a high risk to reoffend in late 2004, and the parole board denied him parole in early 2005. Id. In state and federal postconviction petitions, petitioner challenged the 2005 denial of parole on the basis that the psych panel requirement violated the Ex Post Facto Clause. Moor I , 603 F.3d at 663-664. Ultimately, the Ninth Circuit Court of Appeals held that there was no ex post facto violation. Id. at 664, 666. The Court concluded that while NRS 213.1214 was retroactively applied to petitioner, the psych panel requirement did not pose a significant risk of increased punishment. Id. at 664, 666.
In 2008, the psych panel found petitioner to pose a high risk to reoffend, and the parole board denied him parole (ECF #14, p. 2; Exh. 8). On March 16, 2009, petitioner filed a state habeas petition challenging the 2008 denial of parole. Exh. 1. The state district court denied the petition. Exh. 4. The Nevada Supreme Court affirmed the denial, and remittitur issued on December 1, 2009. Exhs. 6, 7.
On June 29, 2010, petitioner dispatched his original federal habeas petition for filing (ECF #3). Before the court is petitioner's counseled first amended petition (ECF #14), which respondents have answered (ECF #28).
28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court's consideration of the petition in this case:
The AEDPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (). This court's ability to grant a writ is limited to cases where "there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011).
A state court decision is contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [the Supreme Court's] precedent." Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002).
A state court decision is an unreasonable application of clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The "unreasonable application" clause requires the state court decision to be more than incorrect or erroneous; the state court's application of clearly established law must be objectively unreasonable. Id. (quoting Williams, 529 U.S. at 409).
In determining whether a state court decision is contrary to federal law, this court looks to the state courts' last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, "a determination of a factual issue made by a state court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In 2008, the psych panel did not certify petitioner as a low risk to reoffend, and the parole board denied him parole (ECF #14, p. 4). Petitioner in his current federal petition argues that the psych panel certification requirement, applied retroactively in his case, created at least a "significant risk" of increased incarceration, both on its face and as applied to the 2008 hearing. Id. He contends that the parole board's own records show that the board likely would have released petitioner but for the imposition of this certification requirement. Id.
Previously, NRS 200.375 required that persons convicted of sexual assault or attempted sexual assault be reviewed by the psych panel. In 1997, the state legislature repealed NRS 200.375 and enacted NRS 213.1214, requiring persons convicted of several enumerated offenses, including offenses "involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive" to be reviewed by the psych panel. In 2001, the state legislature altered the language of the statute to require certification by the psych panel that the prisoner "does not represent a high risk to reoffend." The decision to grant parole is at the discretion of the parole board. NRS 213.1099.
The Ex Post Facto Clause, Article I, section 10 of the United States Constitution, prohibits laws that retroactively increase the penalty for a crime. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, (1995). "A law violates the Ex Post Facto Clause if it is 1) retroactive-'it applies to events occurring before its enactment;' and 2) detrimental-it 'produces a sufficient risk of increasing the measure of punishment attached to the covered crimes.'" Brown v. Palmateer, 379 F.3d 1089, 1093 (9th Cir.2004) (). The Supreme Court has not adopted "a single formula for identifying which legislative adjustments, in matters bearing on parole, would survive an ex post facto challenge." Garner v. Jones, 529 U.S. 244, 252 (2000). Instead, "[t]he question is whether the amended [rule] creates a significant risk ofprolonging [the prisoner's] incarceration" and there is no constitutional violation where the legislative change produces "only the most speculative and attenuated possibility of producing the prohibited effect." Id. at 251 (citing Morales, 514 U.S. at 509). "[T]he focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of 'disadvantage,' nor . . . on whether an amendment affects a prisoner's opportunity to take advantage of provisions for early release." Morales, 514 U.S. at 506 n. 3 (internal quotation marks omitted). "[T]he question of what legislative adjustments will be held to be of sufficient moment . . . must be a matter of degree." Id. at 509.
In Moor I, the Ninth Circuit held that NRS 213.1214 was applied retroactively to petitioner because he pleaded guilty in 1994 and his eligibility for parole was clearly impacted by the law's amendment in 1997. 603 F.3d at 664. The Ninth Circuit determined that the Nevada Supreme Court's rejection of petitioner's challenge of the 2005 parole denial was not contrary to clearly established federal law. Id. at 664.
In Moor I, the Nevada Supreme Court...
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