NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 18 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VANCE RIDER, No. 11-15741
Petitioner - Appellant, D.C. No. 5:08-cv-00235-RMW
v.
MEMORANDUM*
BEN CURRY,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted December 2, 2013**
San Francisco, California
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
After having reviewed Vance Rider’s 28 U.S.C. § 2254 habeas petition de
novo, Cunningham v. Wong, 704 F.3d 1143, 1153 (9th Cir. 2013), we affirm the
district court’s denial of Rider’s petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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To obtain relief, the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) requires Rider to show that the last-reasoned state court decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1); see Gill v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003).
1. The California Court of Appeal’s decision affirming the trial court’s
exclusion of expert testimony concerning Rider’s mental incapacity under
California law was not contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. The California Court of Appeal was limited
by California Penal Code § 28. “[S]tate and federal rulemakers have broad latitude
under the Constitution to establish rules excluding evidence from criminal trials.
Such rules do not abridge an accused’s right to present a defense so long as they
are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v. Arkansas, 483
U.S. 44, 56 (1987)). Moreover, the U.S. Supreme Court upheld Arizona’s rule
barring consideration of a defendant’s mental incapacity evidence with respect to
the defendant’s mens rea one day after the California Court of Appeal decided
Rider’s case. See Clark v. Arizona, 548 U.S. 741, 742 (2006). Clark did not
overrule any prior Supreme Court precedent. Thus, the California Court of
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Appeal’s decision could not have been contrary to, or could not have involved an
unreasonable application of, clearly established Supreme Court precedent.
2. Rider also did not demonstrate that the California Court of Appeal’s
affirmation of his 25-years-to-life sentence under California’s three strike law was
contrary to, or an unreasonable application of, clearly established Supreme Court
precedent. Clearly established Supreme Court precedent required the state court to
consider “objective factors,” specifically (1) the “gravity of the offense and the
harshness of the penalty,” (2) “sentences imposed on other criminals in the same
jurisdiction,” and (3) “sentences imposed for commission of the same crime in
other jurisdictions.” Solem v. Helm, 463 U.S. 277, 292 (1983). “In weighing the
gravity of [the defendant’s] offense, [the court] must place on the scales not only
[the] current felony, but also [the defendant’s] long history of felony recidivism.”
Ewing v. California, 538 U.S. 11, 29 (2003) (plurality); see also Solem, 463 U.S. at
296-97.
Given AEDPA’s highly deferential standard, we cannot say that the
California Court of Appeal’s decision affirming Rider’s sentence was “contrary to,
or involved an unreasonable application of, clearly established [Supreme Court
precedent].” 28 U.S.C. § 2254(d)(1). Rider’s criminal history is lengthy and
includes violent crimes (oral copulation with a minor at knifepoint, attempted
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manslaughter, and three robberies). Rider also had the possibility of parole. His
sentence was not the “most severe punishment that the State could have imposed
on any criminal for any crime.” Solem, 463 U.S. at 297; see Gonzalez v. Duncan,
551 F.3d 875, 886 (9th Cir. 2008). Finally, although only California and Texas
require imposing a 25-years-to-life sentence for a three strike offender who
violates the sex offender registration law, Gonzalez, 551 F.3d at 888, “no single
criterion can identify when a sentence is so grossly disproportionate that it violates
the Eighth Amendment.” Solem, 463 U.S. at 290 n.17.
While Rider argues that Gonzalez demands a different result, this court
decided Gonzalez more than two years after the California Court of Appeal decided
Rider’s case in 2006. See Gonzalez, 551 F.3d at 875. Thus, the California Court of
Appeal did not have the benefit of Gonzalez’s reasoning when applying Solem’s
factors. Even if Gonzalez had been decided earlier, Rider’s situation does not fit
Gonzalez’s facts. Rider failed to register after moving, while the Gonzalez
petitioner did not move and registered within the year—just not within five
working days of his birthday. Id. at 877-78. Further, Rider lied about how long he
had been staying at the shelter, making the state court’s decision “even more
reasonable.” Crosby v. Schwartz, 678 F.3d 784, 794 (9th Cir. 2012).
The judgment of the district court is AFFIRMED.
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FILED
Rider v. Curry, No. 11-15741 DEC 18 2013
MOLLY C. DWYER, CLERK
SILVERMAN, Circuit Judge, dissenting: U.S. COURT OF APPEALS
While I agree with the majority’s decision not to grant relief based on the
state court’s decision to exclude petitioner’s proposed expert testimony, I disagree
that the state court’s decision upholding his twenty-five years to life sentence was
not contrary to, or an unreasonable application of, clearly established Supreme
Court precedent. Accordingly, I respectfully dissent.
Petitioner was charged with violating the sex offender registration statute.
As the instructions to the jury and the prosecutor’s closing argument make clear,
this case went to the jury on two theories of guilt: failure to register within five
days of changing his address, and failure to register within five days of his
birthday. The jury rendered a general verdict, so it is impossible to tell what
violation was deemed proven.
The distinction between the two types of registration failures matters greatly
when it comes to sentencing. We have held that a state court unreasonably applied
federal law when it upheld a three strikes sentence for failure to complete a
birthday registration. Gonzales v. Duncan, 551 F.3d 875 (9th Cir. 2008). On the
other hand, we have also held that a similar sentence for failure to register upon
moving is not an unreasonable application. Crosby v. Schwartz, 678 F.3d 784 (9th
Cir. 2012).
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In upholding petitioner’s sentence, the California Court of Appeal made no
distinction between the two types of registration failures with which petitioner was
charged, even though at least one California opinion (issued before petitioner’s
conviction became final) labeled a defendant’s annual registration failure “a
passive, nonviolent, regulatory offense that posed no direct or immediate danger to
society.” People v. Carmony, 127 Cal.App.4th 1066, 1078 (2005) (applying Solem
v. Helm, 463 U.S. 277, 290 (1983)). Nor did the state court acknowledge that there
is no way to determine if petitioner was convicted of this regulatory offense.
While both Gonzalez and Crosby were decided after this petitioner’s
conviction was reviewed by the state Court of Appeal, neither case announced a
new rule, instead applying only the existing rules articulated in such cases as Solem
and Lockyer, both of which were cited by the state court in denying petitioner’s
Eighth Amendment claims on direct review. See, e.g., Bell v. Hill, 190 F.3d 1089,
1090-91 (9th Cir. 1999). See also Norris v. Morgan, 622 F.3d 1276, 1287 (9th Cir.
2010), quoting Rummel v. Estelle, 445 U.S. 263, 274 (1983) (“[A]t the very least, it
was clearly established at the time the state court decision in this case became final
that in applying gross disproportionality principle courts must objectively measure
the severity of a defendant’s sentence in light of the crimes he committed.”).
We must ensure that every constitutional “I” is dotted and every “T” crossed
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when dealing with a sentence of this magnitude for a crime of this nature. Because
it is entirely possible – indeed, likely – that petitioner was found guilty of only the
technical species of failure to register as a sex offender – i.e., a birthday violation –
a sentence of twenty-five years to life violates the proportionality element of the
Eighth Amendment. Gonzalez, 551 F.3d at 890-91. Therefore, I respectfully
dissent.