FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK MOOR,
Petitioner-Appellant, No. 07-16045
v.
D.C. No.
CV-07-00151-BES
JACK PALMER; NEVADA ATTORNEY
GENERAL, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Brian E. Sandoval, District Judge, Presiding
Argued and Submitted
January 15, 2010—San Francisco, California
Filed April 29, 2010
Before: J. Clifford Wallace, Procter Hug, Jr., and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Wallace
6373
MOOR v. PALMER 6375
COUNSEL
Ryan Norwood, Esq., Assistant Federal Public Defender, Las
Vegas, Nevada, for petitioner-appellant Mark Moor.
6376 MOOR v. PALMER
Heather D. Proctor, Esq., Carson City, Nevada, for
respondents-appellees Jack Palmer, et al.
OPINION
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 peti-
tion 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 sen-
tenced 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 con-
ditions 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 con-
sider 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parole violations — once in 2002 when his parole was
revoked, and then again in 2005 when he was denied parole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.
MOOR v. PALMER 6377
[1] We point out that Moor did not raise his double jeop-
ardy contention in the district court. Although his federal
habeas petition did take issue with the extension of his incar-
ceration “for three (3) years, past the three (3) year parole vio-
lation 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).
[2] 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
(1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717
(1969). But it “does not prohibit the imposition of all addi-
tional 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 (1997)
(internal quotation marks and citations omitted). Parole revo-
cation 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 crimi-
nal punishment that would trigger the protections of the Dou-
ble 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,
6378 MOOR v. PALMER
when parole is revoked, the prisoner “[m]ust 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 sen-
tence 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 deci-
sion. 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 fed-
eral habeas relief because “alleged errors in the application of
state law are not cognizable in federal habeas corpus.” Lang-
ford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). To the
extent that Moor is asserting that the Board’s violation or mis-
application of Nevada law violated his federal due process
rights, we reject that argument as well, because Moor has no
liberty interest in parole.
[3] The Supreme Court has held that prisoners have no
constitutional right to release before expiration of a valid sen-
tence 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 (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
MOOR v. PALMER 6379
that the statute contains mandatory language and imposes sub-
stantive limitations on the discretion of those making the
parole decision. Bd. of Pardons v. Allen, 482 U.S. 369, 375-
79 (1987). We have held that
[w]hether 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) (cita-
tions omitted).
[4] 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 establish-
ment 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 discre-
tion 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, 620 P.2d 369,
370 (Nev. 1980).
6380 MOOR v. PALMER
[5] The provisions of Nevada law specifically dealing with
parole revocation likewise do not create a protectable entitle-
ment to parole for a prisoner whose parole has been revoked.
The law provides only that a prisoner whose parole has been
revoked “[m]ust 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 crimi-
nal record would be evaluated for parole according to the fac-
tors 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 vio-
lating the laws;
(b) Whether the release is incompatible with the wel-
fare 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
MOOR v. PALMER 6381
(e) Any documents or testimony submitted by a vic-
tim 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 per-
son; (c) Any disciplinary action taken against the person
while incarcerated; (d) Any previous parole violations or fail-
ures; (e) Any potential threat to society or himself; and (f)
The length of his incarceration”).
Prior to 1997, Nevada law provided that persons convicted
of sexual assault or attempted sexual assault could not be
paroled unless they were first evaluated by a Psychological
Review Panel (Review Panel) consisting of an administrator
from the state’s department of human services (or a designee),
the director of the department of prisons (or a designee), and
a licensed psychologist or psychiatrist. Nev. Rev. Stat.
§ 200.375 (1995). In order for a prisoner subject to this law
to be eligible for parole, the Review Panel had to certify that
the inmate was under observation while in prison and was not
“a menace to the health, safety or morals of others.” Id. At the
time of Moor’s conviction, this psychological review require-
ment did not apply to him.
In 1997, however, the Nevada legislature broadened the
requirement of psychological review as a precondition for
parole. Cf. Nev. Rev. Stat. § 200.375 (1995) with Nev. Rev.
Stat. § 213.1214. See Stockmeier v. Psychological Review
Panel, 135 P.3d 807, 811 & n. 17 (Nev. 2006) (citing 1997
Nev. Stat., ch. 524, § 10, at 2506; id. § 22, at 2513). The 1997
revision expanded the list of offenses that would trigger the
psychological review procedure, to include prisoners such as
Moor who were convicted of an “offense involving pornogra-
phy and a minor.” Nev. Rev. Stat. § 213.1214(5)(e). The law
also provided that inmates subject to psychological review
procedures could not be paroled unless a Panel first “certi-
6382 MOOR v. PALMER
fie[d] that the prisoner was under observation while confined
. . . and does not represent a high risk to reoffend based upon
a currently accepted standard of assessment.” Nev. Rev. Stat.
§ 213.1214(1).
Therefore, when Moor was first considered for parole in
1999, the Board applied section 213.1214, as it had been
amended in 1997, to him. Moor was duly certified by a
Review Panel and released on parole. After his 2002 parole
revocation and three more years of incarceration, he was
again considered for parole in 2005. Once more, the state
applied the procedures described in section 213.1214 to Moor.
A Review Panel evaluated Moor’s suitability for re-release;
this time, however, the Review Panel declined to issue a certi-
fication, resulting in the denial of parole to Moor.
Moor argues that applying section 213.1214 to a prisoner
whose original conviction predates passage of that law vio-
lates the constitutional prohibition on ex post facto laws,
United States Constitution, Article I, section 10, and that
therefore the Board’s use of the psychological evaluation pro-
cedures in his case was unconstitutional.
The government argues initially that, because Moor submit-
ted to the Review Panel process in 1999, he waived any sub-
sequent challenges to those requirements. Unsurprisingly, the
government offers minimal reasoning in support of this asser-
tion. Indeed, it is unclear how Moor could have brought an ex
post facto challenge in 1999, because at that time he obtained
a certification from the Review Panel and was released on
parole, and therefore suffered no harm traceable to the psy-
chological review requirement.
[6] Moving to the merits, the Ex Post Facto Clause prohib-
its 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) det-
MOOR v. PALMER 6383
rimental — it produces a sufficient risk of increasing the mea-
sure of punishment attached to the covered crimes.” Brown v.
Palmateer, 379 F.3d 1089, 1093 (9th Cir. 2004) (internal quo-
tation marks, citations and alterations omitted). Although the
Supreme Court has not adopted “a single formula for identify-
ing which legislative adjustments, in matters bearing on
parole, would survive an ex post facto challenge,” Garner v.
Jones, 529 U.S. 244, 252 (2000), it has said that “[t]he ques-
tion is whether the amended [rule] creates a significant risk of
prolonging [the prisoner’s] incarceration,” and that there is no
constitutional violation where the legislative change produces
“only the most speculative and attenuated possibility of pro-
ducing the prohibited effect.” Id. at 251 (internal quotations
and citation omitted). “[T]he focus of the ex post facto inquiry
is not on whether a legislative change produces some ambigu-
ous sort of ‘disadvantage,’ nor . . . on whether an amendment
affects a prisoner’s opportunity to take advantage of provi-
sions for early release.” Morales, 514 U.S. at 506 n.3 (internal
quotation marks omitted), and “the question of what legisla-
tive adjustments will be held to be of sufficient moment . . .
must be a matter of degree.” Id. at 509 (internal quotation
marks and citations omitted).
[7] Here, section 213.1214 was applied retroactively to
Moor. He was convicted in 1994, and the psychological
review requirement was revised and applied to him by laws
enacted in 1997. His eligibility for parole was clearly
impacted by a law passed after he committed his offense.
Weaver v. Graham, 450 U.S. 24, 31 (1981) (law altering
availability of credits for good behavior was retroactive
because it “changes the legal consequences of acts completed
before its effective date”); Himes v. Thompson, 336 F.3d 848,
854 (9th Cir. 2003) (“Parole eligibility affects the length of a
prison term and therefore affects the measure of punishment
attached to the original crime,” and thus new regulations
regarding re-release after parole revocation were retroactive
because they affected punishment for crimes committed
before the regulations were passed).
6384 MOOR v. PALMER
[8] We will therefore turn to the second question: whether
the new rule “creates a significant risk of prolonging [Moor’s]
incarceration.” Garner, 529 U.S. at 251; see also Brown, 379
F.3d at 1095 (second question of the ex post facto analysis
“asks whether the retroactive statute works to some signifi-
cant disadvantage to a petitioner, creating a ‘significant risk’
that the statute’s application will increase the length of incar-
ceration”). We do not, however, grant habeas relief where the
claim was denied on the merits in state court unless the state
court decision:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d). A decision is contrary to Supreme Court
precedent if a state court “applies a rule that contradicts the
governing law” set forth in Supreme Court cases or “con-
fronts a set of facts that are materially indistinguishable” from
a relevant Supreme Court precedent but arrives at a different
result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A
decision unreasonably applies Supreme Court precedent if it
applies, extends, or fails to extend the governing rules in a
way that is not just incorrect, but objectively unreasonable. Id.
at 409-10; Doody v. Schriro, 596 F.3d 620, 634 (9th Cir.
2010).
Applying the above principles, we conclude that the
Nevada courts’ denial of habeas relief in this case did not
result in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law as
embodied in Supreme Court precedent. The Nevada Supreme
Court rejected Moor’s ex post facto claim, reasoning that
“[t]here is no ex post facto violation when the law merely
MOOR v. PALMER 6385
alters the method of imposing a penalty and does not change
the quantum of punishment,” and that “requiring [Moor] to be
certified before release on parole does not constitute an addi-
tional punishment.” The court did not explicitly set out the
“controlling inquiry” of “whether retroactive application of
the change . . . created ‘a sufficient risk of increasing the mea-
sure of punishment.’ ” Garner, 529 U.S. at 250, citing Mora-
les, 514 U.S. at 509. Nevertheless, the Nevada Supreme Court
did cite Morales, suggesting that it identified the governing
rule, or at least did not apply a rule that contradicted the
Morales rule. The question then becomes whether the Nevada
Supreme Court unreasonably applied the Morales rule to the
facts of this case. See Himes, 336 F.3d at 852.
It is not an objectively unreasonable application of
Supreme Court precedent to conclude that subjecting Moor to
the Review Panel certification process would not create a sub-
stantial risk that he would serve more prison time than if he
had been evaluated for parole under standards applicable at
the time of his conviction, as found in Nev. Rev. Stat.
§ 213.1099. If the Review Panel cannot certify that a prisoner
does not present a “high risk” of reoffense, that same prison-
er’s suitability for parole under section 213.1099 standards is
doubtful: Section 213.1099 requires the Board to consider
whether there is a “reasonable probability” that the prisoner
will abide by the law and compatibility of the prisoner’s
release with “the welfare of society.”
Moor argues that the Review Panel process is fundamen-
tally different than the decisional process of the Board in typi-
cal parole determinations. He asserts that, although the Board
considers a prisoner’s risk of recidivism, the Board need not
make any affirmative findings or consider any one factor to
be dispositive of the parole determination. The Review Panel,
in contrast, must affirmatively certify that the person does not
pose a high risk of reoffending. But it is difficult to conceive
of the inmate who has a significant chance of obtaining parole
under the usual Board standards, but would be unable to
6386 MOOR v. PALMER
obtain parole because of the Review Panel certification proce-
dures. By way of comparison, in Morales, the Court upheld
a retroactive change to the frequency of parole hearings for
certain inmates, in part because the change “applie[d] only to
a class of prisoners for whom the likelihood of release on
parole is quite remote.” 514 U.S. at 510; see also Garner, 529
U.S. at 256 (holding that the record did not support the con-
clusion that decreasing the frequency with which prisoners
who were convicted of multiple killings were reconsidered for
parole created more than a speculative risk of prolonging
incarceration).
Moor attempts to distinguish Morales and Garner on the
ground that those cases considered laws that changed only the
timing of parole hearings, and not the substantive standards to
be used at those hearings. Moor also argues that he is chal-
lenging a law that restricts the discretion of the Board, rather
than expanding it, as the statutes involved in Morales and
Garner had done. But these considerations were not disposi-
tive in Morales and Garner; rather, they simply aided the
Court’s analysis of whether there was sufficient risk of
increased incarceration.
Moor also argues that the Review Panel throws up a “high
hurdle” that must be cleared before the Board can exercise its
discretion, similar to the hurdle held unconstitutional in Miller
v. Florida, 482 U.S. 423, 435 (1987). In Miller, the Court held
impermissible a law that retroactively revised sentencing
guidelines and required a judge departing from those guide-
lines to give clear and convincing reasons. Id. However, the
“hurdle” represented by the Review Panel here is not particu-
larly onerous; the Review Panel need only certify that the
inmate does not pose a high risk of reoffending. Moreover, it
is even less likely that the procedures would pose a significant
risk of prolonging incarceration for prisoners who, like Moor,
have already violated the terms of their parole once before.
[9] Moor urges the similarity between this case and Brown,
which also involved two sets of parole decisionmakers apply-
MOOR v. PALMER 6387
ing two different sets of standards, with one set having power
to override the other’s determination. But the change in law
at issue in Brown represented a far greater threat of increased
incarceration: there, the prior law permitted a parole board to
postpone a parole date only if there was a professional “diag-
nosis of present severe emotional disturbance such as to con-
stitute a danger to . . . the community.” 379 F.3d at 1091. The
new law allowed a parole board to postpone a parole date if
the board believed the prisoner suffered from “a mental or
emotional disturbance” that made him a danger to the com-
munity, even without — or contrary to — a professional diag-
nosis, and even if the disturbance was not severe. Id. at 1095.
Thus, the law challenged in Brown allowed a parole board to
postpone parole on less serious grounds, and without, or even
in contravention of, the opinion of a mental health profes-
sional. Here, under section 213.1214, the Board retains the
same basic discretion to grant or deny parole; the Legislature
simply requires a specialized panel (including a psychologist
or psychiatrist) to first make a threshold inquiry of whether
the inmate poses a “high risk to reoffend,” a consideration
which would be relevant to the Board’s section 213.1099
analysis anyway. In Brown, importantly, we gave less defer-
ence to the state court’s denial of Brown’s habeas petition,
because the state courts had “provided no ratio decidendi to
review.” Brown, 379 F.3d at 1092, citing Delgado v. Lewis,
223 F.3d 976, 982 (9th Cir. 2000).
[10] We therefore hold that the psychological review
requirement does not create a significant risk of increased
punishment on its face. Where, as here, “the rule does not by
its own terms show a significant risk, the respondent must
demonstrate . . . that its retroactive application will result in
a longer period of incarceration than under the earlier rule,”
such that “as applied to his own sentence the law created a
significant risk of increasing his punishment.” Garner, 529
U.S. at 255. Moor expressly argues that further factfinding is
unnecessary, choosing to rest his ex post facto claim on a
6388 MOOR v. PALMER
facial challenge to the statute. A remand is thus unnecessary
and Moor’s facial ex post facto challenge is rejected.
AFFIRMED.