Metropolitan News-Enterprise


Thursday, February 13, 2014


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Panel Denies En Banc Rehearing With Seven Judges Dissenting on Juvenile Sentencing


By MICHAEL J. PEIL, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday denied en banc rehearing of a ruling entitling a convicted rapist serving more than 250 years in prison to an opportunity to eventually be paroled.

The denial of rehearing came over the dissent of seven judges—Diarmuid O’Scannlain, Richard Tallman, Jay Bybee, Consuelo Callahan, Carlos Bea, Milan Smith, and Sandra Ikuta.

The panel reversed the denial of the habeas corpus petition in Moore v. Biter, 11-56846, which challenged the sentence of Roosevelt Brian Moore, who was 16 years old at the time of his crimes, for which he was tried as an adult and sentenced to 254 years and four months.

In an opinion by Judge Harry Pregerson, the panel reversed, holding that Graham v. Florida, 130 S. Ct. 2011 (2010), which prohibits nonhomicide juvenile offenders from receiving life sentences without the possibility of parole, applied retroactively on collateral review and that the court’s failure to apply the law in Moore’s case was contrary to established federal law.

In the dissent from the denial of rehearing, O’Scannlain explained that the panel erred by failing to distinguish between the Graham defendant’s life-without-parole sentence and Moore’s aggregated fixed terms of imprisonment for each offense to run consecutively.

Pregerson, in his opinion for the panel, concluded:

“Moore’s sentence of 254 years is materially indistinguishable from a life sentence without parole because Moore will not be eligible for parole within his lifetime….[and] Graham’s focus was not on the label of a ‘life sentence’—but rather on the difference between life in prison with, or without, possibility of parole.”

But O’Scannalain yesterday said that stopped short of assessing whether Moore’s case was distinguishable from Graham by examining the distinct nature of the two sentences involved.

Graham, he said, received one sentence, life without parole; whereas, Moore’s length of imprisonment was determined by “over two dozen separate sentences, none longer than eight years.”

O’Scannalain reasoned that by applying Graham, the panel ignored the Sixth Circuit decision in Bunch v. Smith, 685 F.3d 546 (2012).

Citing language from Bunch, he said:

“Because the Supreme Court explicitly stated that Graham concerned ‘only those juvenile offenders sentenced to life without parole solely for a nonhomicide offense,’ it ‘did not clearly establish that consecutive, fixed-term sentences for juveniles who commit multiple nonhomicide offenses are unconstitutional when they amount to the practical equivalent of life without parole.’”

O’Scannalian explained that since the court did not address whether Graham’s ruling extended to multiple offense sentences, the state court’s determination that Moore’s sentence could not be contrary to established federal law.

By granting the petition for relief, he reasoned, the panel disobeyed the Antiterrorism and Effective Death Penalty Act of 1996, which provides that federal courts may not grant habeas relief unless the state court’s decision was an unreasonable application of clearly established federal law.

Pregerson said that the panel was not required under AEDPA to wait for nearly identical factual pattern before reviewing Moore’s claim. He explained that both sentences deny the juvenile nonhomicide offenders the chance to return to society, which was the goal of Graham, making the law clear as to how it should be applied.

O’Scannalian said, however, the law was not clearly established on this matter, as exhibited by state courts’ splitting over how to apply Graham. He cited three cases which have held that Graham prohibits aggregated term-of-year sentences that equal life without parole. He cited six cases, however, which have held that Graham does not prohibit sentences such as Moore’s.

He said:

“Respect for the California courts, for our sister circuit, and for courts across the country that have declined to apply Graham to sentences such as Moore’s should have compelled the panel to declare the reasons why it found their analysis unpersuasive.”

In 1991, a jury convicted Moore of sexually victimizing four separate women on four occasions. He was convicted of 24 counts, including counts of forcible rape, attempted robbery, unlawful taking of a vehicle, and kidnapping, and the jury found that Moore had used a firearm while committing his crimes.

At the sentencing hearing, a psychological report was submitted regarding Moore’s capacity to change, the conclusions of the report were split between a doctor and the rest of clinical staff, as to whether Moore would continue with an antisocial value system if rehabilitation were administered.

Under his sentence, Moore would need to live to be 144 years of age before being eligible for parole.


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