Moor v. Palmer

• Decision Date: 29 April 2010
• Docket Number: No. 07-16045.,07-16045.
• Citation: 603 F.3d 658
• Parties: Mark MOOR, Petitioner-Appellant, v. Jack PALMER; Nevada Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

603 F.3d 658

Mark MOOR, Petitioner-Appellant, v. Jack PALMER; Nevada Attorney General, Respondents-Appellees.

No. 07-16045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 15, 2010.

Filed April 29, 2010.

Ryan Norwood, Esq., Assistant Federal Public Defender, Las Vegas, NV, for petitioner-appellant Mark Moor.

Heather D. Proctor, Esq., Carson City, NV, for respondents-appellees Jack Palmer, et al.

Before J. CLIFFORD WALLACE, PROCTER HUG, JR., and RICHARD R. CLIFTON, Circuit Judges.

WALLACE, Senior Circuit Judge:

Petitioner Mark Moor appeals from the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 2253. We review the district court's denial of Moor's habeas petition de novo, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir.2009), and we affirm.

I.

In March 1994, Moor pled guilty in a Nevada state court to using a minor in the production of pornography, in violation of Nevada Revised Statutes section 200.710. He was sentenced to a term of life with the possibility of parole after five years. In April 2000, he was released on parole. In April 2002, Moor was arrested for violating certain terms and conditions of his parole. In June 2002, the Parole Board (Board) found him guilty of parole violations and revoked his parole. The Board also determined that it would next review and consider Moor for parole in three years. In 2005, he was denied parole and was told he would again be considered for parole in another three years. In his federal habeas petition, Moor challenges the 2005 denial of parole.

A.

Moor argues that he was punished twice for the same parole violations—once in 2002 when his parole was revoked, and then again in 2005 when he was denied parole for another three years—in violation of the Double Jeopardy Clause of the Fifth Amendment.

We point out that Moor did not raise his double jeopardy contention in the district court. Although his federal habeas petition did take issue with the extension of his incarceration "for three (3) years, past the three (3) year parole violation term set in 2002", he framed this issue as one of due process, not double jeopardy. Although we have discretion to do so, Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006), we generally do not consider on appeal issues that were not raised in the habeas petition to the district court. Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir.1998).

If we were to consider Moor's double jeopardy claim on the merits, it would nevertheless fail. The Double Jeopardy Clause "protects against multiple punishments for the same offense." United States v. DiFrancesco, 449 U.S. 117, 129, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). But it "does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment.... The Clause protects only against the imposition of multiple criminal punishments for the same offense." Hudson v. United States, 522 U.S. 93, 98-99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (internal quotation marks and citations omitted). Parole revocation is not a criminal penalty for violating the terms of parole. United States v. Soto-Olivas, 44 F.3d 788, 789 (9th Cir.1995) ("revocation is not punishment for the subsequent events which violate the parole"). It is simply a continuation of the punishment for the original crime. Id. Therefore, the revocation of Moor's parole in 2002 is not the type of criminal punishment that would trigger the protections of the Double Jeopardy Clause.

B.

Moor also contends that the Board's 2005 denial of parole violated his rights under the Due Process Clause of the Fifth Amendment. First, he argues that the state's failure to release him three years after his parole revocation violated Nevada Revised Statutes section 213.1519(1)(b), which provides that, when parole is revoked, the prisoner "must serve such part of the unexpired maximum term of his original sentence as may be determined by the Board." He urges that the Board's 2002 decision determined how much of his unexpired sentence he should serve—three years—and did not mean that he should serve three more years only to be considered for parole once again. At the end of three years, Moor contends, his parole should have been automatically reinstated without further review. Second, Moor argues that the Board failed to adopt and apply standards for granting parole after revocation distinct from the standards applied to an initial parole decision. He argues that such separate standards are required by Nevada Revised Statutes section 213.10885(1), which directs the Board to "adopt by regulation specific standards for each type of convicted person... for determining whether to grant or revoke the parole of a convicted person." Third, Moor argues that Nevada Revised Statutes section 213.142(1) requires parole hearings to be held at least every three years, yet he was turned away without a hearing in 2005.

To the extent that Moor is requesting habeas relief on the basis of the Board's violation or misapplication of Nevada statutes in and of themselves, he fails to state a basis for federal habeas relief because "alleged errors in the application of state law are not cognizable in federal habeas corpus." Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.1996). To the extent that Moor is asserting that the Board's violation or misapplication of Nevada law violated his federal due process rights, we reject that argument as well, because Moor has no liberty interest in parole.

The Supreme Court has held that prisoners have no constitutional right to release before expiration of a valid sentence even where a state provides for the possibility of parole. Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7-8, 10-11, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). It is true that a state parole statute may create a liberty interest, even if the parole decision involves subjective and predictive considerations, provided that the statute contains mandatory language and imposes substantive limitations on the discretion of those making the parole decision. Bd. of Pardons v. Allen, 482 U.S. 369, 375-79, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987). We have held that

whether a state statute provides such a protectable entitlement depends on the structure and language of the statute, as well as the state courts' interpretation of the scope of the interest.... If a statutory scheme requires the board to release a prisoner once the board determines that certain necessary prerequisites exist, that scheme may give rise to a liberty interest in early release.... Significant to the determination of whether parole or other early release statutes create such a protectable liberty interest is their use of mandatory language.

Bergen v. Spaulding, 881 F.2d 719, 721 (9th Cir.1989) (citations omitted).

Nevada's statutory parole scheme, however, expressly disclaims any intent to create a liberty interest. See Nev.Rev. Stat. § 213.10705 (legislative declaration that "the release or continuation of a person on parole or probation is an act of grace of the State .... and it is not intended that the establishment of standards relating thereto create any such right or interest in liberty or property...."). The statute does not use mandatory language; instead, it provides that "the Board may release on parole a prisoner who is otherwise eligible for parole" and lists factors to be considered in exercising that discretion. Nev.Rev.Stat. § 213.1099(1), (2) (emphasis added). The Nevada Supreme Court has held that the discretion conferred on the Board by Nev.Rev.Stat. § 213.1099 "does not confer a legitimate expectation of parole release and therefore does not create a constitutionally cognizable liberty interest" in parole. Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369, 370 (1980).

The provisions of Nevada law specifically dealing with parole revocation likewise do not create a protectable entitlement to parole for a prisoner whose parole has been revoked. The law provides only that a prisoner whose parole has been revoked "must serve such part of the unexpired maximum term of his original sentence as may be determined by the Board." Nev. Rev.Stat. § 213.1519(1)(b). This statute does not endow Moor with a protectable interest in serving no more than the term initially identified by the Board, and it does not suggest that the Board's determination at the time of revocation is necessarily the final word. It is not inconsistent with the statutory text for the Board to decide, at the time of revocation, that a parolee should serve a certain amount of time and then be reevaluated for suitability for parole. Because Nevada law does not create a liberty interest in parole, Moor's due process claim must be rejected.

II.

At the time of Moor's conviction, an inmate with his criminal record would be evaluated for parole according to the factors described in Nevada Revised Statutes section 213.1099. That statute directs the Board to consider

(a) Whether there is a reasonable probability that the prisoner will live and remain at liberty without violating the laws;

(b) Whether the release is incompatible with the welfare of society;

(c) The seriousness of the offense and the history of criminal conduct of the prisoner;

(d) The standards adopted pursuant to NRS 213.10885 and the recommendation, if any, of the Chief; and

(e) Any documents or testimony submitted by a victim notified pursuant to NRS 213.130.

Nev.Rev.Stat. § 213.1099(2); see also Nev. Rev.Stat. § 213.10885(2) (stating that factors to be considered by the Board "must include, but are not limited to: (a) The severity of the crime committed; (b) The criminal history of the person; (c) Any disciplinary action taken against the person while incarcerated; (d) Any previous parole...