Norris v. Morgan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRACH EDWARD NORRIS, 
Petitioner-Appellant, No. 08-35645
v.
 D.C. No.
2:05-cv-05045-FVS
RICHARD MORGAN, Superintendent
of Washington State Penitentiary, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, District Judge, Presiding

Argued and Submitted
March 10, 2010—Seattle, Washington

Filed September 23, 2010

Before: Raymond C. Fisher and Marsha S. Berzon,
Circuit Judges, and G. Murray Snow, District Judge.*

Opinion by Judge Berzon

*The Honorable G. Murray Snow, United States District Judge for the
District of Arizona, sitting by designation.

16203
 NORRIS v. MORGAN 16207

COUNSEL

Matthew Campbell, Federal Defenders of Eastern Washington
& Idaho, Spokane, Washington, for the appellant.

Robert McKenna, Attorney General, and Donna Mullen
(argued), Assistant Attorney General, Washington Attorney
General’s Office, Olympia, Washington, for the appellee.

OPINION

BERZON, Circuit Judge:

Brach E. Norris was convicted by a jury of child molesta-
tion in the first-degree. Norris had also had been convicted of
child molestation ten years earlier. The State of Washington’s
“two strikes” law for repeat sex offenders provides for a man-
datory sentence of life in prison without the possibility of
parole, and Norris was so sentenced. Invoking the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment, Norris challenges his sentence as grossly disproportion-
ate to his offense.

The Washington Court of Appeals denied Norris’s claim,
holding his life-without-parole sentence not grossly dispro-
16208 NORRIS v. MORGAN
portionate to his crime. On habeas review, we decide whether
the Washington Court of Appeals’s decision denying Norris’s
claim “was contrary to, or involved an unreasonable applica-
tion of, clearly established federal law.” 28 U.S.C.
§ 2254(d)(1). We conclude that the decision was not contrary
to clearly established federal law. Additionally, while finding
the issue a close one, we conclude that Norris’s Eighth
Amendment claim would fail even on de novo review, and
thus need not determine whether the state appellate court
decision involved an unreasonable application of clearly
established federal law. We affirm.

I.

A.

In November 1993, Washington became the first State to
enact a “three strikes” law. U.S. Dept. of Justice, National
Institute of Justice, J. Clark, J. Austin, & D. Henry, “Three
Strikes and You’re Out”: A Review of State Legislation 1
(Sept. 1997). Formally titled the Persistent Offender Account-
ability Act (POAA), Wash. Rev. Code § 9.94A.570 et seq.,
the law amended Washington’s sentencing scheme to require
sentences of life imprisonment without the possibility of
parole for defendants who are convicted of a felony defined
as a “most serious offense” in Wash. Rev. Code.
§ 9.94A.030(31),1 and have previously been convicted of at
1
A “most serious offense” includes “(a) Any felony defined under any
law as a class A felony or criminal solicitation of or criminal conspiracy
to commit a class A felony; (b) Assault in the second degree; (c) Assault
of a child in the second degree; (d) Child molestation in the second
degree; (e) Controlled substance homicide; (f) Extortion in the first
degree; (g) Incest when committed against a child under age fourteen; (h)
Indecent liberties; (i) Kidnaping in the second degree; (j) Leading orga-
nized crime; (k) Manslaughter in the first degree; (l) Manslaughter in the
second degree; (m) Promoting prostitution in the first degree; (n) Rape in
the third degree; (o) Robbery in the second degree; (p) Sexual exploita-
tion; . . . [and] (s) Any other class B felony offense with a finding of sex-
ual motivation[.]” Wash. Rev. Code. § 9.94A.030(31).
 NORRIS v. MORGAN 16209
least two such offenses on separate occasions. See id. at
§§ 9.94A.570, 9.94A.030(36). By “provid[ing] a mandatory
sentence based on the seriousness of the crime and a predeter-
mined number of prior convictions,” State v. Thorne, 921
P.2d 514, 528 (Wash. 1996), the law was designed to deter
repeat offenders who commit at least three most serious
offenses and “segregat[e] . . . [them] from the rest of society,”
id. at 532.

In 1996, the Washington Legislature passed a “two strikes”
amendment to the POAA. See State v. Morin, 995 P.2d 113,
115 (Wash. App. 2000). Under this amendment, defendants
who are convicted of certain sex offenses,2 and have previ-
ously been convicted of at least one such offense, are classi-
fied as persistent offenders and sentenced to life
imprisonment without parole. Wash. Rev. Code
§§ 9.94A.570, 9.94A.030(36)(b)(ii).3 The two strikes law’s
purposes are the same as that of the three strikes’ statute:
2
Sex offenses that are strikes under the two strikes law include first-
degree child molestation, indecent liberties with forcible compulsion, rape,
statutory rape, and certain crimes committed with a sexual motivation. See
Wash. Rev. Code § 9.94A.030(36)(b)(i). These offenses are also defined
as “most serious offenses” in § 9.94A.030(31).
3
Washington sex offenders are otherwise subject to Washington’s
“determinate-plus” sentencing scheme, which provides for minimum
terms of imprisonment and maximum sentences of life imprisonment with
parole for class A felonies, 10 years for class B felonies, and five years
for class C felonies. Wash. Rev. Code §§ 9.94A.505; 9.94A.507;
9.94A.510; 9.94A.515; 9.94A.728; see State v. Brundage, 107 P.3d 742,
746-47 (Wash. App. 2005) (applying a previous version of Wash. Rev.
Code § 9.94A.507). Washington also has a “special sex offender sentenc-
ing alternative” available to certain sex offenders. See Wash. Rev. Code
§ 9.94A.670. Additionally, sex offenders convicted of a crime of sexual
violence and determined to have a mental abnormality or personality dis-
order that makes the offender likely to engage in predatory acts of sexual
violence after their term of imprisonment are subject to civil commitment
after the completion of their sentences. Wash. Rev. Code § 71.09.010 et
seq.; see In re Detention of Thorell, 72 P.3d 708, 714 n. 2, 719 (Wash.
2003).
16210 NORRIS v. MORGAN
incapacitation and deterrence of repeat offenders. See Morin,
995 P.2d at 117.

B.

At approximately 2:00 p.m. on March 5, 2001, Mark Hynd-
man and three of his four children, including his stepdaughter,
C.D., then five years old, went to a McDonald’s restaurant in
Spokane, Washington, for a late lunch. After they finished
eating, Hyndman’s children went to play in an enclosed play-
room inside the restaurant. As he sat outside the playroom and
watched his children play, Hyndman noticed Norris, then 42-
years old, sitting alone inside the playroom and making facial
expressions at Hyndman’s children while they threw balls
against netting on the structure in the playroom. He also saw
Norris get up and walk back and forth inside the playroom a
few times, repeatedly looking up into the tubes on the struc-
ture on which some of the children were playing. Hyndman
eventually went into the playroom and sat down so he could
watch his children more closely.

Norris approached Hyndman and began talking to him.
Hyndman, smelling alcohol on Norris’s breath, moved away
slightly and continued to watch his children. Hyndman’s chil-
dren were in different areas of the playroom at this time—the
youngest was playing with some balls, and the others were
playing on the slide next to Norris.

At some point, Hyndman, who had been watching his
youngest child play with the balls, turned around and saw
Norris bend, reach down with one hand, and touch C.D., who
had just come down the slide, between the legs. Hyndman
immediately grabbed Norris by the shirt and shoved him
against a wall inside the playroom. He then shoved Norris
outside the playroom, through the McDonald’s lobby, and
outside the restaurant, yelling to the McDonald’s employees
to call the police and that Norris had just inappropriately
touched his daughter. Once outside, Norris broke free from
 NORRIS v. MORGAN 16211
Hyndman’s grasp and ran away, but Hyndman pursued him
on foot. Norris eventually ducked behind an air conditioning
unit adjacent to a nearby building, but three police officers
arrived soon thereafter and took him into custody.

A few days later, Washington charged Norris with one
count of child molestation in the first-degree in violation of
Revised Code of Washington § 9A.44.083(1). At trial, Hynd-
man testified that he saw Norris “reach[ ] down to fondle
[C.D.]” as she was trying to pull herself off the edge of the
slide, touching her genitalia over her clothing and moving his
fingers between her legs. Hyndman stated that the touch
occurred “very quickly”—a couple of seconds at most—and
in “a real sweeping quick motion,” after which Norris “stood
right up as if nothing had ever happened.” C.D. also testified
at trial, stating that while she was playing on the slide at the
McDonald’s a man touched her on her “privates,” “[t]he front
one.” She also stated that the man had “wiggled” his hand and
that she felt his fingers. C.D. could not identify Norris as the
man who touched her but indicated that the man who touched
her was the same person Hyndman had fought with at the
McDonald’s. On cross-examination, C.D. testified that the
man had not hurt her.

Norris testified in his own defense. He offered an innocent
explanation for his conduct, stating that while he was talking
to Hyndman he heard a noise, turned to see C.D. on the edge
of the slide, and instinctively grabbed her ankle and then
placed his hand further up her body—he could not remember
exactly where—to steady her, believing that she was going to
fall. Norris also testified that he had just gotten off work,
drunk two beers, and stopped at the McDonald’s to pass the
time until his bus came.

At the end of the trial, the trial judge instructed the jury that
“[a] person commits the crime of child molestation in the
first-degree [in violation of Wash. Rev. Code § 9A.44.083(1)]
when he or she has sexual contact with a person who is less
16212 NORRIS v. MORGAN
than 12 years old . . . ,” where “sexual contact” is defined as
“any touching of the sexual or other intimate parts of a person
done for the purpose of gratifying sexual desires of either
party or a third party.” The jury convicted Norris of first-
degree child molestation.

Before the sentencing hearing, Norris, who had previously
been convicted of first-degree child molestation in 1991,4
filed a motion challenging the application of Washington’s
two strikes law to his present conviction as cruel and unusual
punishment under the federal Constitution’s Eighth Amend-
ment. Addressing Andrade v. Attorney General of the State of
California, 270 F.3d 743 (9th Cir. 2001), rev’d on other
grounds by Lockyer v. Andrade, 538 U.S. 63 (2003), the trial
court noted that “the [Eighth] Amendment does not require
strict proportionality between the crime and sentence, but
rather it forbids . . . extreme sentences that are grossly dispro-
portionate to the crime . . . .” The court then applied a four-
factor test adopted by the Washington Supreme Court in State
v. Fain, 617 P.2d 720 (Wash. 1980), taking into account (1)
the nature of the crime, (2) the legislative purpose behind the
sentencing scheme; (3) the sentence Norris would receive for
the same crime in other jurisdictions; and (4) the sentence
Norris would receive for similar crimes in Washington.5
4
Norris was also convicted of second-degree theft in 1999 and armed
robbery in 1976. Second-degree theft and armed robbery are not predicate
crimes under the Washington two-strike sexual offense amendment to the
Washington POAA.
5
The Washington proportionality analysis explicated in Fain was
adopted from the Fourth Circuit’s proportionality analysis in Hart v.
Coiner, 483 F.2d 136, 140-43 (4th Cir. 1973), overruling recognized by
Hutto, 454 U.S. at 373. See Fain, 617 P.2d at 726. In Fain, the Washing-
ton Supreme Court declined, however, to incorporate wholesale Hart’s
“legislative purpose” factor into its analysis. See id. at 728 n.7 (noting that
the legislative purpose factor “should be employed with caution” and
declining to “venture a conclusion . . . . that a given sentence more nearly
accomplishes the legislative purpose”). In a later opinion on the constitu-
tionality of a sentence under Washington’s three strikes law, the state
 NORRIS v. MORGAN 16213
The trial court first applied the Fain factors to repeat first-
degree child molesters in the abstract and concluded that, “in
general[,] as far as an objective look at the sentencing scheme
for this case[,] . . . application of [the] two strikes law is not
cruel and unusual punishment under the [Eighth Amend-
ment].” The trial court next considered whether application of
the two strikes law to Norris’s specific offense constituted
cruel and unusual punishment. The court explained:

I think the question becomes . . . is this a child
molestation in the first degree [that] is classified as
a violent crime and the answer is yes[;] all the ele-
ments of child molestation in the first degree were
demonstrated beyond a reasonable doubt, and the
jury made a finding of guilty in this case.

Unlike the Andrade case where we started out
from the get-go with a nonserious, nonviolent, non-
threatening charge of shoplifting or theft, we don’t
start out on that level in this case. We start out with
exactly the type of crime that the . . . two strikes law
is intending to prevent.

Supreme Court seemingly abandoned the “legislative purpose” factor:
“The court considers three factors in determining whether a punishment
is disproportionate to the crime committed and thus ‘cruel’ in contraven-
tion of [the state constitution]: (1) the nature of the offense; (2) the punish-
ment the defendant would have received in other jurisdictions for the same
offense; and (3) the punishment imposed for other offenses in the same
jurisdiction.” State v. Manussier, 921 P.2d 473, 485 (Wash. 1996) (empha-
sis added) (citing Fain, 617 P.2d at 720). In two companion cases, how-
ever, the state Supreme Court stated that “Fain enunciated a four-factor
test to be considered in analyzing claims of cruel punishment,” and pro-
ceeded to address the legislative history of the three strikes law in its anal-
ysis. Thorne, 921 P.2d at 531, 532 (emphasis added); see State v. Rivers,
921 P.2d 495, 502, 503 (Wash. 1996). The state Supreme Court has since
recognized but not addressed the legislative purpose factor, State v.
Magers, 189 P.3d 126, 137 & n.3 (Wash. 2008), and stated that the factor
is to be “applied with caution,” State v. Korum, 141 P.3d 13, 27-28 (Wash.
2006).
16214 NORRIS v. MORGAN
Secondly, not only do we have a prior conviction
for [ ] Norris, it happens to be a prior conviction of
exactly the same offense, child molestation . . . in the
first degree. . . . That matter also involved a young[ ]
. . . female child as this matter did.

One of the major thrusts of the [POAA] is to pre-
vent recidivism. This is a repeat offense. It has many
of the earmarks of the prior offense as best I can
determine from what I reviewed in the [presentence
report].6

[A]nother issue I find disturbing in this particular
case is this case took place in an open, very public
area. There was another adult nearby. It indicates to
me a complete lack of impulse control on [ ] Nor-
ris’[s] part and . . . risk[-]taking in a public place; in
other words, the risk that [Norris is] going to be
caught causes me concern about his behavior and the
kind of behavior that the two strikes law is intend-
[ed] to prevent, [e.g.,] repeat behavior.

....

. . . . This is not a shoplifting case. This is a case
of a commission of an offense that is specifically
prohibited by a very tailored, limited two strikes law
to sex offenders.

The trial court concluded that “the application of the [POAA]
for two strikes [to Norris’s most recent child molestation con-
6
There is nothing in the record describing the offense conduct underly-
ing Norris’s 1991 child molestation conviction except for a single state-
ment made by the state prosecutor at the sentencing hearing: “[T]he [1991
child molestation conviction,] had [Norris] been convicted on the facts
presented[,] would have been a child rape. It appears that according to plea
negotiations it was pled down to . . . child molest[ation].”
 NORRIS v. MORGAN 16215
viction] did not violate the [Eighth Amendment],” and sen-
tenced Norris to a term of life imprisonment without the
possibility of parole.

On direct review, the Washington Court of Appeals
affirmed in an unpublished opinion. Relying on State v.
Thorne, 921 P.2d 514 (Wash. 1996), the court reviewed Nor-
ris’s sentence under the Washington Constitution7 rather than
under the Eighth Amendment, stating that “the Washington
Constitution[’s] [bar against cruel punishment] is more pro-
tective than the Eighth Amendment,” and thus “if [a] sentence
passes scrutiny under the state provision, [the court] need not
address the federal constitution.” The state appellate court
then applied the four Fain factors “[t]o determine [whether
Norris’s] sentence of life in prison without the possibility of
parole under the POAA [was] grossly disproportionate” to his
crime.

Addressing the first Fain factor, the Washington Court of
Appeals concluded that Norris had “committed a most seri-
ous, violent, sex offense against a child.” It acknowledged
Norris’s “argu[ment] that the touch was ‘de minimis,’ and
was ‘a brief one-second touch over clothing’ that did not
involve violence” but rejected it, reasoning that “the [Wash-
ington] Legislature has classified first degree molestation as
a ‘most serious,’ ‘violent,’ ‘sex offense,’ ” and “Norris . . .
was convicted of first degree child molestation.” Turning to
the second factor, the court stated that the legislative purpose
behind the two strikes law was two-fold: “to provide manda-
tory sentences for repeat offenders to deter such crimes and
to protect society.” And, as Norris “had previously committed
the same crime,” “violated the conditions of his parole by
interacting with young children, without required supervi-
sion,” and “now . . . molested another young girl, in a public
7
Article I, Section 14 of Washington’s Constitution provides that “Ex-
cessive bail shall not be required, excessive fines imposed, nor cruel pun-
ishment inflicted.”
16216 NORRIS v. MORGAN
place, with her stepfather close by, watching him and the chil-
dren,” the court held that “Norris’s sentence [was] consistent
with the purposes of the [two strikes law].” Additionally, the
Washington Court of Appeals held that Norris’s sentence was
comparable to the sentence he would have received for com-
mitting similar crimes in the State—the fourth Fain factor—
because “[s]everal other similar offenses, such as first or sec-
ond degree rape and first or second degree rape of a child[,]
would similarly qualify an offender for life in prison if the
offender had a prior first degree molestation conviction.”8

In examining other jurisdictions’ sentencing schemes under
the third Fain factor, the Washington Court of Appeals did
note that “[m]ost states that have ‘two strikes’ laws require
sex offenses with some degree of penetration and infliction of
serious bodily harm.” In addition, according to the state
appellate court, only “[a] small[ ] number of states would
impose a sentence of life in prison without parole for a second
offense after a similar prior offense. For example, Georgia,
Montana, New Mexico, South Carolina, and Wisconsin all
have two strikes laws for some types of sexual offenses.”
Nonetheless, citing State v. Gimarelli, 20 P.3d 430, 436
(Wash. App. 2001), for the proposition that no one factor is
dispositive in the Fain analysis, the court concluded that the
third factor was “not dispositive” in this case.

The Washington Court of Appeals also drew a distinction
between property crimes and crimes against persons:

This violent sex offense against a child is quite
different from [a] nonviolent property crime . . . .
The Legislature has a right to discourage such
behavior and protect the public from such offenders.
8
The Washington Court of Appeals rejected as an improper inquiry Nor-
ris’s contention that he would have received a significantly shorter sen-
tence if the two strikes law did not exist.
 NORRIS v. MORGAN 16217
In this case, Mr. Norris is a repeat child molester.
He showed a lack of impulse control in molesting a
five-year-old girl under the watchful eye of her
father. Molesting a child is considered a violent sex-
ual offense.

Based on this analysis, the Washington Court of Appeals
concluded that Norris’s life-without-parole sentence was not
grossly disproportionate to his crime. The Washington
Supreme Court denied discretionary review, without com-
ment.

Norris filed a pro se petition for a writ of habeas corpus in
the United States District Court for the Eastern District of
Washington. Applying federal law, the district court con-
cluded that Norris’s life-without-parole sentence did not vio-
late the Eighth Amendment:

While life imprisonment without the possibility of
parole is indeed a harsh sentence, . . . it is not grossly
disproportionate to the crime of which [Norris] was
convicted. . . . [M]olesting a child is necessarily a
‘most serious offense.’ The victims of child molesta-
tion suffer incalculable harm. The gravity of the
offense is intensified in this case by the fact that the
victim was only five-years-old at the time of the
incident and the offense occurred while her parents
were, essentially, in the same room. Thus, ‘a thresh-
old comparison of the crime committed and the sen-
tence imposed’ does not lead to an inference of gross
disproportionality [under the Eighth Amendment].

The district court also concluded that the Washington stan-
dard as applied by the Washington courts was not contrary to
or an unreasonable application of Supreme Court Eighth
Amendment caselaw:

. . . . The ultimate question under both federal and
state law is the same: is [Norris’s] sentence grossly
16218 NORRIS v. MORGAN
disproportionate to this crime? The Fain factors mir-
ror the considerations articulated by the Ninth Cir-
cuit . . . : both require consideration of the nature of
the crime and both permit comparison of the sen-
tences imposed for similar crimes in various jurisdic-
tions. . . . It follows that, if [Norris’s] sentence
passed muster under the Washington test, it must
necessarily be proportionate for purposes of the
Eighth Amendment as well.

....

Having reviewed the record and the opinion of the
[state appellate court], th[is] Court concludes that the
[state court] did not apply the law concerning gross
disproportionality in an objectively unreasonable
manner. The [state court] reached the same conclu-
sion that this Court reached in applying Ninth Circuit
law.

After rejecting Norris’s other claims, the district court denied
his habeas petition.

Norris timely filed a notice of appeal and applied for a cer-
tificate of appealability. We certified one issue for appeal:
“whether appellant’s sentence of life in prison without the
possibility of parole violates the Eighth Amendment’s bar
against cruel and unusual punishment.”9 We also ordered
appointment of counsel for Norris on appeal.
9
Norris raises three uncertified issues in his opening brief and requests
that the court expand the Certificate of Appealability (COA) to include
them. See 9th Cir. R. 22-1(e). Because Norris concedes that these issues
were not presented to the district court, we may not consider them on
appeal, and so deny the request to certify them. See Smith v. Richards, 569
F.3d 991, 995 (9th Cir. 2009); Morgan v. Bunnell, 24 F.3d 49, 52 (9th Cir.
1994).
 NORRIS v. MORGAN 16219
II.

This petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214. Under AEDPA, a federal habeas court may
grant a habeas petition if, inter alia, the state court’s adjudica-
tion of the merits of the petitioner’s claim “resulted in a deci-
sion that 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). If § 2254(d)(1) is satisfied, “then federal habeas
courts must review the substantive constitutionality of the
state custody de novo.” Frantz v. Hazey, 533 F.3d 724, 737
(9th Cir. 2008) (en banc).

A.

We begin by determining the relevant Supreme Court
authority clearly established at the time the relevant state
court decision became final. Williams v. Taylor, 529 U.S. 362,
390 (2000); see Yarborough v. Alvarado, 541 U.S. 652, 661
(2004). The phrase “clearly established Federal law” refers to
“the holdings, as opposed to the dicta, of th[e] [Supreme]
Court’s decisions.” Williams, 529 U.S. at 412. “When more
than one state court has adjudicated a claim, we analyze the
last reasoned decision.” Barker v. Fleming, 423 F.3d 1085,
1091 (9th Cir. 2005); see also Frantz, 533 F.3d at 733-34. In
this case, the last reasoned state court decision is the Wash-
ington Court of Appeals’s unpublished opinion denying Nor-
ris’s claim on the merits.

[1] The Eighth Amendment provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. CONST. amend. VIII.
The last clause “prohibits not only barbaric punishments,”
Solem v. Helm, 463 U.S. 277, 284 (1983), but any “extreme
sentence[ ] that [is] ‘grossly disproportionate’ to the crime.”10
10
The Supreme Court has held that some sentences are so disproportion-
ate to certain crimes or certain crimes committed by certain classes of
16220 NORRIS v. MORGAN
Ewing v. California, 538 U.S. 11, 23 (2003) (plurality opin-
ion) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001
(1991) (Kennedy, J., concurring in part and concurring in the
judgment)). This “narrow proportionality principle . . . applies
to noncapital sentences.” Id. (internal quotation marks omit-
ted).

Relying on Solem, Norris argues that the Supreme Court
has clearly established a three-factor approach for determin-
ing whether a noncapital sentence for a term of years is
grossly disproportionate to the crime committed. In Solem, the
Court

announced three objective factors to guide review of
a sentence for a term of years under the Eighth
Amendment. First, a reviewing court must look to
the gravity of the offense and the harshness of the
penalty. . . . Second, ‘it may be helpful to compare
the sentences imposed on other criminals in the same
jurisdiction.’ . . . Finally, . . . ‘courts may find it use-
ful to compare ‘the sentences imposed for [the] com-
mission of the same crime in other jurisdictions.’

Gonzalez v. Duncan, 551 F.3d 875, 880 (9th Cir. 2008) (quot-
ing Solem, 463 U.S. at 290-91). This approach was short-
lived, however. Eight years later in Harmelin, there was no
agreement by a majority of the Supreme Court on how to
apply the proportionality principle. Compare Harmelin, 501
U.S. at 994-95 (confining proportionality review to capital

offenders that they are categorically barred by the Eighth Amendment’s
prohibition against cruel and unusual punishment. See Graham v. Florida,
130 S. Ct. 2011 (2010) (life-without-parole sentences for non-homicide
crimes by juveniles); Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) (capi-
tal sentences for nonhomicide crimes); Roper v. Simmons, 543 U.S. 551
(2005) (capital sentences for juvenile offenders); Atkins v. Virginia, 536
U.S. 304 (2002) (capital sentences for offenders whose intellectual func-
tioning is in a low range).
 NORRIS v. MORGAN 16221
cases) (opinion of Scalia, J.) with id. at 1004-05 (opinion of
Kennedy, J.) (embracing proportionality review for noncapital
cases but eschewing inter- and intrajurisdictional analyses in
most cases) and id. at 1009 (White, J., dissenting) (preferring
to include inter- and intrajurisdictional analyses in all propor-
tionality reviews). Later, in Ewing, there was again no agree-
ment on the proper approach to proportionality review.
Compare Ewing, 538 U.S. at 23-24 (plurality opinion) (apply-
ing the approach adopted in Justice Kennedy’s Harmelin con-
currence11) with id. at 31 (Scalia, J., concurring in the
judgment) (rejecting outright the proportionality principle)
and id. at 32 (Thomas, J., concurring in the judgment) (same).

[2] Reflecting this disarray, the Supreme Court held, the
same day Ewing was decided, that “the only relevant clearly
established law amenable to the ‘contrary to’ or ‘unreasonable
application of’ [AEDPA] framework is the gross dispropor-
tionality principle, the precise contours of which are unclear
and which is applicable only in the ‘exceedingly rare’ and
‘extreme’ case.” Andrade, 538 U.S. at 72 (quoting Harmelin,
501 U.S. at 1001 (opinion of Kennedy, J.)).12 Ewing and
11
Justice Kennedy took the view in his Harmelin concurrence that a
court needs to address the second and third Solem factors—the intrajuris-
dictional and interjurisdictional analyses—only if it concludes that there
is “an inference of gross disproportionality” after addressing the first
Solem factor. Harmelin, 501 U.S. at 1005 (“[I]ntrajurisdictional and inter-
jurisdictional analyses are appropriate only in the rare case in which a
threshold comparison of the crime committed and the sentence imposed
leads to an inference of gross disproportionality.”) (opinion of Kennedy,
J.) .
12
The Supreme Court has since settled on an authoritative answer to
how reviewing courts should apply the proportionality principle to non-
capital sentences, adopting the three-factor approach established by Justice
Kennedy in his Harmelin concurrence:
A court must begin by comparing the gravity of the offense and
the severity of the sentence. ‘[I]n the rare case in which [this]
threshold comparison . . . leads to an inference of gross dispro-
portionality’ the court should then compare the defendant’s sen-
16222 NORRIS v. MORGAN
Andrade were the last pertinent Supreme Court Eighth
Amendment opinions before the state appellate court decision
denying relief to Norris became final, so Andrade’s statement
about what federal law was clearly established controls our
analysis here.

The gross disproportionality principle necessarily has a
core of clearly established meaning; a principle with no sub-
stance is no principle at all. The meaning of a principle may
“emerge in application over the course of time,” Yarborough,
541 U.S. at 664, and “even a general standard may be applied
in an unreasonable manner.” Panetti v. Quarterman, 551 U.S.
930, 953 (2007); see, e.g., Musladin v. Lamarque, 555 F.3d
830, 839 (9th Cir. 2009) (“AEDPA’s ‘clearly established Fed-
eral law’ requirement does not demand more than a ‘princi-
ple’ or ‘general standard’ in the Supreme Court’s caselaw
before habeas relief can be granted.”) (quoting Panetti, 551
U.S. at 953); Moses v. Payne, 555 F.3d 742, 760 (9th Cir.
2009).

[3] There was indeed some elucidation of the gross dispro-
portionality principle available to the state courts when they
decided this case. First, the Supreme Court has uniformly
applied—and thus given meaning to—the gross dispropor-
tionality principle by consistently measuring the relationship
between the severity of the punishment inflicted upon the
offender and the nature and number of offenses committed,
even though it has sometimes used different frameworks to
conduct this analysis. See Ewing, 538 U.S. at 28-29 (plurality
opinion); Andrade, 538 U.S. at 72; Harmelin, 501 U.S. at

tence with the sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the same crime
in other jurisdictions.
Graham, 130 S. Ct. at 2022 (emphasis added) (quoting Harmelin, 401
U.S. at 1005 (opinion of Kennedy, J.)); see also id. at 2037-38 (Roberts,
C.J., concurring in the judgment).
 NORRIS v. MORGAN 16223
1005 (opinion of Kennedy, J.); Solem, 463 U.S. at 290-91;
Rummel v. Estelle, 445 U.S. 263, 274-76 (1980). Second, the
Supreme Court has repeatedly stated that a court’s proportion-
ality analysis “ ‘should be informed by objective factors to the
maximum possible extent’ ” instead of relying on “ ‘subjec-
tive views’ ” regarding the fit between the offenses and the
punishment. Rummel, 445 U.S. at 274 (quoting Coker v.
Georgia, 433 U.S. 587, 592 (1977)); see Harmelin, 401 U.S.
at 998-1001 (opinion of Kennedy, J.); Solem, 463 U.S. at 290.
Accordingly, at 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 objec-
tively measure the severity of a defendant’s sentence in light
of the crimes he committed.

B.

We turn now to the case before us and ask if the state court
adjudication of Norris’s claim was “contrary to, or involved
an unreasonable application of” the proportionality principle
when it concluded that Norris’s sentence was not grossly dis-
proportionate to his crime under Washington’s two strikes
law. See 28 U.S.C. § 2254(d)(1).

1.

The Washington Court of Appeals did not address Norris’s
Eighth Amendment claim as such. Rather, it analyzed his
claim under the Washington Constitution, relying on Thorne,
921 P.2d at 531-32, for the propositions that the state Consti-
tution’s bar against “cruel punishment” is more protective
than the federal Constitution’s bar against “cruel and unusual
punishment,” and therefore, if a defendant’s sentence does not
violate the Washington Constitution, a state court need not
address the defendant’s claim under the Eighth Amendment.
The Washington Court of Appeals then proceeded to apply to
Norris’s claim a gross disproportionality analysis adopted by
the Washington Supreme Court in Fain, 617 P.2d at 725-26.
16224 NORRIS v. MORGAN
[4] The State argues that the state courts’ reliance on the
Fain factors cannot be contrary to clearly established
Supreme Court caselaw because the Supreme Court has not
ruled on the question whether a sentence of life without the
possibility of parole for a repeat sex offender violates the
Eighth Amendment’s bar against cruel and unusual punish-
ment. This contention—that there is no clearly established
Supreme Court law unless the Supreme Court has addressed
the precise circumstances presented to us in a federal habeas
petition—has been repeatedly rejected. See Panetti, 551 U.S.
at 953 (“AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before a legal
rule must be applied. Nor does AEDPA prohibit a federal
court from finding an application of a principle unreasonable
when it involves a set of facts different from those of the case
in which the principle was announced.”); see also Musladin,
555 F.3d at 830. Rather, a state court’s decision is “contrary
to” clearly established law if it either (1) “confronts a set of
facts that are materially indistinguishable from a [Supreme
Court] decision and nevertheless arrives at a [different]
result,” or (2) “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases.” Williams, 529 U.S.
at 405-06 (emphasis added); see also Frantz, 533 F.3d at 734.
Therefore, while “[a]voiding [a ‘contrary to’ error] does not
require citation . . . [or] awareness of [Supreme Court] cases,”
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam), a state
court’s “use of the wrong legal rule or framework . . . do[es]
constitute error under the ‘contrary to’ prong of
§ 2254(d)(1).” Frantz, 533 F.3d at 734.

[5] Norris argues that the Washington Court of Appeals’s
failure to address the Solem factors and use of the Fain factors
exclusively was contrary to clearly established Supreme Court
caselaw. As previously discussed, however, the Supreme
Court, shortly before the Washington Court of Appeals’s
decision became final, made clear in Andrade that the only
relevant clearly established law for purposes of § 2254(d)(1)
in an Eighth Amendment challenge such as this one was the
 NORRIS v. MORGAN 16225
gross disproportionality principle, and stressed that its “pre-
cise contours” were “unclear.” 538 U.S. at 73; see Nunes v.
Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir. 2007). The
Court went on to hold in Andrade that a state court’s failure
to address specifically Solem (or Harmelin) did not result in
a decision “ ‘contrary to’ the governing legal principles set
forth in [Supreme Court] cases.” Andrade, 538 U.S. at 73-74.
Additionally, Ewing did not significantly change the land-
scape, as no majority of the Supreme Court agreed on a par-
ticular approach for applying the Eighth Amendment
proportionality principle. We thus cannot conclude that the
Washington Court of Appeals’s failure to address specifically
the Solem factors was contrary to a clearly established legal
principle or framework at the time of its decision.13

2.

[6] In the alternative, Norris argues that the Washington
Court of Appeals’s use of the Fain factors was an unreason-
able application of the proportionality principle to the facts of
this case. “A state court’s decision is an unreasonable applica-
tion of clearly established federal law if ‘the state court identi-
fies the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle to
the facts of the prisoner’s case.’ ” Rios v. Garcia, 390 F.3d
1082, 1084 (9th Cir. 2004) (quoting Williams, 529 U.S. at
413); see also Renico v. Lett, 130 S. Ct. 1855, 1862 (2010)
(holding that a state court’s application of clearly established
federal law must be “objectively unreasonable,” not just “er-
roneous” or “incorrect”).

Applying the proportionality analysis developed in Fain
and its progeny, the Washington Court of Appeals held Nor-
ris’s life-without-parole sentence not grossly disproportionate
13
We repeat that the approach in Justice Kennedy’s Harmelin concur-
rence was recently adopted by a majority of the Supreme Court. See Gra-
ham, 130 S. Ct. at 2022.
16226 NORRIS v. MORGAN
to his crime because the nature of his crime, first-degree child
molestation, is defined by Washington statute as a “violent”
and “most serious” offense; his sentence served the legislative
purposes behind the two strikes law of incapacitation and
deterrence for recidivist sex offenders; and he would have
received the same sentence under the two strikes law for com-
mitting similar crimes.14
14
The Washington Court of Appeals also conducted an interjurisdic-
tional analysis—the third Fain factor—concluding that while five other
states—Georgia, Montana, New Mexico, South Carolina, and Wisconsin
—have two strikes laws, and only a “small number” of states would have
imposed a life-without-parole sentence for a second similar prior offense
“for some types of sexual offenses,” this factor was not dispositive. As
Norris correctly points out on appeal, there were at that time actually eight
other states—California, Connecticut, Georgia, Missouri, Montana, New
Mexico, South Carolina, and Wisconsin—that had two strikes laws, three
of which—California, Connecticut, and New Mexico—would have
imposed life-with-parole sentences rather than life-without-parole sen-
tences for second-strike offenses. See California Penal Code § 667.71;
C.G.S.A. § 53a-40; O.C.G.A. § 17-10-7(b)(2); V.A.M.S. § 558.018;
M.C.A. § 46-18-219(1)(a); N.M.S.A. § 31-18-25; S.C. Stat. § 17-25-45(a);
Wis. Stat. § 939.62. Additionally, only Wisconsin might have imposed a
life-without-parole sentence based on the facts of this case. See Wis. Stat.
§§ 939.62(2m)(a) (defining “serious child sex offense” as including “sex-
ual assault of a child”), 948.02 (defining “sexual assault” to include “sex-
ual contact”), 948.01(5)(a) (defining “sexual contact” as “intentional
touching, whether direct or through clothing, if that intentional touching
is . . . for the purpose of . . . sexually arousing or gratifying the defen-
dant”). Based on these errors, Norris contends that the Washington Court
of Appeals’s interjurisdictional analysis was an unreasonable application
of clearly established Supreme Court law.
To be sure, although the Supreme Court did not require an interjurisdic-
tional analysis at the time of the Washington Court of Appeals’s decision,
the court was still bound reasonably to apply any subanalyses it used
toward the end of applying the Eighth Amendment gross disproportion-
ality principle. Nonetheless, any error in the Washington Court of
Appeals’s interjurisdictional analysis does not amount to an unreasonable
application of the gross disproportionality principle in this case. If any-
thing the Washington Court of Appeals appears to have understated the
most relevant support for Norris’s sentence in its analysis by failing to
note that one other state, Wisconsin, probably would have imposed the
same sentence based on the same facts.
 NORRIS v. MORGAN 16227
[7] Although each of these analyses was permissible and
relevant to an Eighth Amendment proportionality analysis, the
Washington Court of Appeals did not separately grapple in
the course of its analysis with the ultimate comparison of the
severity of Norris’s sentence of life imprisonment without the
possibility of parole—“the second most severe penalty per-
mitted by law,” Harmelin, 501 U.S. at 1001 (opinion of Ken-
nedy, J.), and one that “alters the offender’s life by a
forfeiture that is irrevocable,” Graham, 130 S. Ct. at 2027—
and the nature and number of his offenses. The state court did,
however, ultimately conclude that, “[b]ased upon [the Fain]
factors, Mr. Norris’s sentence is not grossly disproportionate
to his crime. He is a convicted child molester, who repeatedly
has improperly touched children.” These remarks, and the rec-
itation earlier in the state court’s opinion of Norris’s life-
without-parole sentence, sufficiently establish that the Wash-
ington Court of Appeals considered Norris’s sentence. See
Early v. Packer, 537 U.S. 3, 9 (2002) (per curiam) (rejecting
the contention that the state court “ ‘failed to consider’ facts
and circumstances that it had taken the trouble to recite”). It
is unclear, however, whether those remarks similarly establish
that the court weighed the severity of Norris’s life-without-
parole sentence against the nature and number of his crimes.15
Nonetheless, because we conclude that Norris’s Eighth
Amendment claim fails even if it were eligible for de novo
review, we need not decide whether it is the “fair import of
the [state] Court of Appeal’s opinion,” id., that the court per-
15
The issue here is not whether “the [Washington] Court of Appeal[s]
. . . g[a]ve certain facts and circumstances adequate weight (and hence
adequate discussion),” Early, 537 U.S. at 9 (emphasis added), but whether
the court in fact weighed at all the severity of Norris’s sentence of life in
prison without the possibility of parole, against the nature and number of
Norris’s specific crimes, and therefore whether the state court conducted
the requisite comparative analysis. Similarly, we do not suggest that this
analysis “demand[s] a formulary statement” that the punishment at issue
is “severe.” Id. It does demand, however, an individualized comparison of
the severity of the defendant’s specific sentence and the nature and num-
ber of the defendant’s specific crimes. See Graham, 130 S. Ct. at 2022.
16228 NORRIS v. MORGAN
formed the clearly established objective comparison between
Norris’s sentence and crimes, and therefore whether the state
court’s decision was objectively reasonable. Cf. Frantz, 533
F.3d at 735-37 (holding that a federal habeas court must
review de novo the constitutional issues raised if a state court
decision is unreasonable under AEDPA, and may do so before
performing the § 2254(d)(1) analysis).

C.

[8] In considering de novo Norris’s Eighth Amendment
gross disproportionality claim, we begin by determining
whether “the crime committed and the sentence imposed leads
to an inference of gross disproportionality.” Harmelin, 501
U.S. at 1005 (opinion of Kennedy, J.); see Graham, 130 S. Ct.
at 2022. In doing so, we compare the harshness of the penalty
imposed upon the defendant with the gravity of his triggering
offense and criminal history. Ewing, 538 U.S. at 28-29 (plu-
rality opinion); accord Ramirez, 365 F.3d at 767-70. This
analysis can consider the penological justifications for the
State’s sentencing scheme, Graham, 130 S. Ct. at 2028, “[the
offender’s] mental state and motive in committing the crime,
[and] the actual harm caused to his victim or to society by his
conduct,” id. at 2037 (opinion of Roberts, C.J.) (citing Solem,
463 U.S. at 292-94), as well as “[t]he absolute magnitude of
the crime,” Solem, 463 U.S. at 293; accord Taylor v. Lewis,
460 F.3d 1093, 1098 (9th Cir. 2006).

[9] With respect to the harshness of his sentence, Norris
argues that a sentence of life imprisonment without the possi-
bility of parole is extremely harsh, and the State so concedes,
as it must. “[L]ife without parole is ‘the second most severe
penalty permitted by law.’ ” Graham, 130 S. Ct. at 2027
(quoting Harmelin, 501 U.S. at 1001 (opinion of Kennedy,
J.)); cf. Ramirez, 365 F.3d at 767 (holding that a sentence of
25 years to life with the possibility of parole is “harsh . . .
beyond any dispute”). It “share[s] some characteristics with
death sentences that are shared by no other sentences,” and
 NORRIS v. MORGAN 16229
“deprives the convict of the most basic liberties without giv-
ing hope of restoration, except perhaps by executive clemency
—the remote possibility of which does not mitigate the harsh-
ness of the sentence.”16 Graham, 130 S. Ct. at 2027. Although
the offender’s life is spared, he is condemned to die in “a liv-
ing tomb, there to linger out what may be a long life . . . with-
out any of its alleviation or rewards—debarred from all
pleasant sights and sounds, and cut off from all earthly hope.”
John Stuart Mill, Parliamentary Debate on Capital Punish-
ment Within Prisons Bill (April 21, 1868), reprinted in Philo-
sophical Perspectives on Punishment 271 (Gertrude Ezorksy
ed. 1972); see Graham, 130 S. Ct. at 2027.

A life sentence is obviously more severe without parole
than with it. See Solem, 463 U.S. at 297. In Washington, only
one crime—first-degree aggravated murder, Wash. Rev. Code
§ 10.95.020—is punishable by life imprisonment without the
possibility of parole for a first offense. See Wash. Rev. Code
§§ 9.94A.510, 9.94A.515. Life without parole is otherwise
reserved for criminals sentenced under Washington’s two or
three strikes laws. The Supreme Court has applied the Eighth
Amendment proportionality principle to life-without-parole
sentences for non-homicide crimes just three times, reaching
different results. See Graham, 130 S. Ct. at 2034 (holding that
life-without-parole sentences for juveniles offenders who did
not commit homicide are categorically barred by the Eighth
Amendment); Harmelin, 501 U.S. 995 (holding that a life-
without-parole sentence was not grossly disproportionate to a
felony offense of possession of 672 grams of cocaine for a
first-time offender); Solem, 463 U.S. at 278 (holding that a
life-without-parole sentence was grossly disproportionate to a
16
The Governor of the State of Washington may pardon or grant clem-
ency to a defendant sentenced under the POAA, but the Legislature has
“recommend[ed] that any offender subject to [the POAA]] not be consid-
ered for release until the offender has reached the age of at least sixty
years old and has been judged to be no longer a threat to society.” Wash.
Rev. Code § 9.94A.565. It has also “recommend[ed] that sex offenders be
held to the utmost scrutiny . . . regardless of age.” Id.
16230 NORRIS v. MORGAN
minor felony offense of uttering a $100 “no account” check
for an offender with a criminal history of several nonviolent
felonies).17

[10] The question therefore is whether Norris’s harsh sen-
tence of life imprisonment without the possibility of parole is
justified by the gravity of his most recent offense and criminal
history. Although the issue is close, we hold that it is.

In evaluating the gravity of Norris’s most recent offense,
the State of Washington, like the state courts in this case,
relies heavily on the fact that Norris’s offense, first-degree
child molestation, is defined by state statute as a “most seri-
ous,” Wash. Rev. Code § 9.94A.030(31)(a), and “violent”
offense, id. at § 9.94A.030(53)(a)(i). See id. at
§ 9A.44.083(2). We recognize that the statutory classification
of crimes, like “the fixing of prison terms for [those] crimes[,]
involves a substantive penological judgment that, as a general
matter, is ‘properly within the province of legislatures, not
courts.’ ” Harmelin, 501 U.S. at 998 (opinion of Kennedy, J.)
(quoting Rummel, 445 U.S. at 275-76); see also Hutto v.
Davis, 454 U.S. 370, 373 (1982) (per curiam). Nonetheless,
in Eighth Amendment cases, “courts traditionally have [also]
made these judgments—just as legislatures must make them
in the first instance,” as they are “competent to judge the
gravity of an offense, at least on a relative scale.”18 Solem, 463
17
We are not aware of any case in which our court has applied the
Eighth Amendment proportionality principle to a life-without-parole sen-
tence for a non-homicide crime.
18
Though “[r]eviewing courts . . . should grant substantial deference to
the broad authority that legislatures necessarily possess in determining the
types and limits of punishments for crimes,” Solem, 463 U.S. at 290, such
deference is not absolute. Otherwise, a legislature’s determination to clas-
sify even the most minor crimes as felonies, or, alternatively, to define
them as “serious” or “violent” offenses, would be insulated from Eighth
Amendment review. Cf. Rummel, 445 U.S. at 274 n.11 & 282 n.27 (noting
that “whatever views may be entertained regarding severity of punish-
ment, whether one believes in its efficacy or its futility, these are pecu-
liarly questions of legislative policy,” but nonetheless agreeing with the
dissent that the proportionality principle might apply “if a legislature made
overtime parking a felony punishable by life imprisonment”) (internal
quotation marks and alterations omitted).
 NORRIS v. MORGAN 16231
U.S. at 292; see Graham, 130 S. Ct. at 2039-40 (opinion of
Roberts, C.J.); see also Taylor, 460 F.3d at 1095 n. 6.

[11] To determine the gravity of an offense, we must “look
beyond the label of the crime” to examine the “factual specif-
ics” of the offense. Reyes, 399 F.3d at 969; see Ramirez, 365
F.3d at 768 (analyzing the “core conduct” of the petitioner’s
offenses). For example, in Ramirez, even though the peti-
tioner was twice convicted of robbery “by force”—defined by
statute as “serious” felonies—we “minimized the gravity of
the offenses” because their commission resulted in only
“minor injury.” Reyes, 399 F.3d at 969. Ramirez thus instructs
courts to look past the statutory classification of a crime to
consider whether the crime involved the use of force, the
degree of force used, whether weapons were used in connec-
tion with the crime, and whether the crime otherwise “ ‘threa-
ten[ed] to cause grave harm to society.’ ” Ramirez, 365 F.3d
at 768-79 (quoting Harmelin, 501 U.S. at 1003) (opinion of
Kennedy, J.)).

Norris’s most recent offense, first-degree child molestation,
is a class A felony punishable by up to life imprisonment with
the possibility of parole. See Wash. Rev. Code §§ 9A.44.083;
9A.20.021; 9.94A.728. Additionally, because of Norris’s
criminal history and the statutory “seriousness level” of his
offense, even if his offense had not been his second strike and
he thus had not been sentenced pursuant to the POAA, Norris
would have been subject under Washington’s sentencing
guidelines to a term of imprisonment between 98 and 130
months. See id. at §§ 9.94A.515; 9.94A.510. Nonetheless,
Norris argues that his conduct was not “so serious” as to jus-
tify a life-without-parole sentence because it involved only a
momentary touching of a young child between the legs on the
outside of her clothing—“represent[ing] perhaps the most
minimal conduct which could possibly have satisfied the
statute”—and, according to Norris involved neither violence
nor the threat of it. The State disputes Norris’s description of
his conduct as de minimis, arguing that it involved “a pur-
16232 NORRIS v. MORGAN
poseful touch with the purpose of sexual gratification,” and
was done “under the very eyes of the parent, in a public res-
taurant frequent[ed] by children, indicat[ing] a severe lack of
impulse control.” The State also notes that child molestation
is a crime against a person and therefore inherently involves
a degree of force.

[12] The factual specifics of Norris’s offense involved him
touching a five-year-old girl on her “privates” or “genitalia”
and over her clothing for at most “a couple of seconds.”
While the absolute magnitude of this conduct may be less
severe relative to the conduct of some first-degree child
molesters, see, e.g., State v. Flores, 56 P.3d 622, 623 (Wash.
App. 2002) (touching or rubbing a young child multiple
times); Gimarelli, 20 P.3d at 432 (repeatedly and forcibly
stroking a young child), Norris’s offense is undisputably not
“one of the most passive crimes a person can commit,” like
the utterance of a $100 “no account” check in Solem, 463 U.S.
at 296, or the nonviolent petty theft of a $199 VCR in
Ramirez, 365 F.3d at 768. Nor does Norris’s offense conduct
amount to an “entirely passive, harmless, and technical viola-
tion” of a regulatory offense like the offender’s failure to
timely update his sex offender registration in Gonzalez. 551
F.3d at 886. Norris committed an offense against a person
rather than property, see Solem, 463 U.S. at 293 (noting that
criminal law is more protective of people than property), and
against a five-year-old child rather than an adult. In fact,
although we are certainly not ruling out such a decision in the
future (especially where there is no recidivism component of
the defendant’s sentence), we are aware of no case in which
a court has found a defendant’s term-of-years sentence for a
non-homicide crime against a person to be grossly dispropor-
tionate to his or her crime.19 In addition, while Norris attempts
19
The Supreme Court has struck down terms-of-years sentences for non-
homicide crimes against a person as constitutionally excessive where the
challenge is to “a particular type of sentence as it applies to an entire class
of offenders who have committed a range of crimes,” not a particular
 NORRIS v. MORGAN 16233
to downplay his culpability by labeling his conduct “de
minimis,” it nonetheless comprised a completed crime, not
merely an attempted one.20 See id. (noting that attempts are
generally recognized as less serious relative to completed
crimes). Moreover, the circumstances surrounding Norris’s
most recent offense include his entering a playroom inside a
McDonald’s alone after drinking alcohol and interacting with
a stranger’s children, in the presence of the children’s parents,
despite having been convicted previously of first-degree child
molestation. As the state courts reasonably determined, this
behavior exhibits a lack of impulse control and so supports
the conclusion that Norris cannot be trusted to refrain from
similar behavior in the future.21

defendant’s sentence. See Graham 130 S. Ct. at 2022-23 (striking down
life-without-parole sentences for non-homicide crimes committed by juve-
niles); see id. at 2021 (“The [Supreme] Court’s cases addressing the pro-
portionality of sentences fall within two general classifications. The first
involves challenges to the length of term-of-years sentences given all the
circumstances in a particular case. The second comprises cases in which
the Court implements the proportionality standard by certain categorical
restrictions on the death penalty.”). Norris does not argue that life-without-
parole sentences for recidivist sex offenders is categorically barred by the
Eighth Amendment.
20
Norris’s attempt to downplay the severity of his offense by attacking
his conviction is similarly unavailing. Although Norris is correct that “in
those cases in which the evidence shows touching through clothing, . . .
[Washington] courts . . . require[ ] . . . additional evidence of sexual grati-
fication,” State v. Powell, 816 P.2d 86, 88 (Wash. App. 1992), Washing-
ton courts are not required “to instruct the jury that it must find additional
evidence of sexual gratification in order to find the defendant guilty of
child molestation.” State v. Veliz, 888 P.2d 189, 191 (Wash. App. 1995).
In this appeal, therefore, we must accept the jury’s decision to convict
Norris as encompassing a finding that Norris had the requisite gratification
purpose when he touched C.D.
21
We do not second-guess the state courts’ determination that Norris’s
behavior exhibited a severe lack of impulse control, as Norris does not
challenge it on appeal. See 28 U.S.C. § 2254(e)(1) (providing that “a
determination of a factual issue made by a State court shall be presumed
to be correct,” and that this presumption may be rebutted only by “clear
and convincing evidence”); Taylor v. Maddox, 366 F.3d 992, 1000 (9th
Cir. 2004) (“[I]n those cases where [the] petitioner does not raise an intrin-
sic challenge to the facts as found by the state court[,] the state court’s
findings are dressed in a presumption of correctness[.]”).
16234 NORRIS v. MORGAN
[13] Furthermore, “[t]he impact of [child molestation] on
the lives of [its] victims is extraordinarily severe.” Cacoperdo
v. Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994); see Stogner
v. California, 539 U.S. 607, 651 (2003) (Kennedy, J., dissent-
ing) (“When a child molester commits his offense, he is well
aware the harm will plague the victim for a lifetime.”).
Indeed, while “psychological or physical harm is necessary to
constitute ‘abuse.’ ” United States v. Baza-Martinez, 464 F.3d
1010, 1017 (9th Cir. 2006), “[t]he use of young children [by
adults] for the gratification of sexual desires constitutes an
abuse. . . . It constitutes maltreatment, no matter its form.”
United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir.
1999); see, e.g., United States v. Valencia-Barragan, 600 F.3d
1132, 1136 (9th Cir. 2010). “[W]e and our sister circuits have
[therefore] consistently held that sexual offenses [by older
adults] against younger children constitute ‘crimes of vio-
lence.’ ” United States v. Medina-Villa, 567 F.3d 507, 515
(9th Cir. 2009).

Moreover, and critically, the question in this case is not
whether Norris’s most recent first-degree child molestation
offense would by itself justify the harsh sentence he received.
Because Norris was sentenced as a recidivist under the two
strikes law, “in weighing the gravity of [his] offense, we must
place on the scales not only his current felony,” but also his
criminal history. Ewing, 538 U.S. at 29 (plurality opinion);
see, e.g., Graham, 130 S. Ct. at 2037-38 (opinion of Roberts,
C.J.).

Norris’s previous armed robbery and second-degree theft
offenses are of limited probative value for present purposes.
Those offenses are unrelated to the conduct for which Norris
was sentenced as a repeat offender and are not rationally
related to Washington’s interest in deterring sex offender
recidivism. Cf. Gonzalez, 551 F.3d at 889-90 (determining
that a California three strikes sentence of 25 years to life for
failure to update the defendant’s annual sex offender registra-
tion did not rationally relate to California’s interest in deter-
 NORRIS v. MORGAN 16235
ring recidivism where “the triggering offense [wa]s remote
from . . . the current offense and the current offense reveal[ed]
no tendency to commit additional offenses that pose[d] a
threat to public safety”).

[14] The circumstances under which Norris committed his
previous first-degree child molestation offense are not suffi-
ciently developed in the record for us to determine the gravity
of that offense.22 See, e.g., Reyes, 399 F.3d at 969. But even
assuming that Norris’s previous offense involved the least
offensive conduct that could support a conviction under the
child molestation statute, that offense, like the criminal histo-
ries in Rummel, Ewing, and Andrade, is “directly related to
[his] triggering offense, evincing a clear pattern of recidi-
vism.” Gonzalez, 551 F.3d at 890-91. Therefore, unlike in
Gonzalez, Norris’s most recent first-degree child molestation
offense is not “categorically different from his past criminal
conduct and does . . . demonstrate a[ ] recidivist tendency
toward . . . sex offenses.” Id. at 891.

When the Washington Legislature enacted the two strikes
law, it determined that protecting the public safety requires
incapacitating criminals who have already been convicted of
at least one serious or violent sex offense. See Morin, 995
P.2d at 117. “Recidivism has long been recognized as a legiti-
mate basis for increased punishment,” Ewing, 538 U.S. at 25
(plurality opinion), and Washington’s penological justifica-
tions of deterrence and incapacitation are no pretext, see id.
at 26-27 (“We have long viewed both incapacitation and
deterrence as rationales for recidivism statutes[.]”). See Gra-
ham, 130 S. Ct. at 2029. There is no dispute that “ ‘[s]ex
offenders are a serious threat in this Nation.’ ” Connecticut
22
At the sentencing hearing for Norris’s most recent offense, the prose-
cutor stated, with respect to the 1991 child molestation conviction, that
“had [Norris] been convicted on the facts presented[,] [the offense] would
have been a child rape.” Because there is no way to confirm the veracity
of this statement, we do not rely on it.
16236 NORRIS v. MORGAN
Dep’t of Public Safety v. Doe, 538 U.S. 1, 4 (2003) (quoting
McKune v. Lile, 536 U.S. 24, 32 (2002)). Additionally, though
Norris labels his previous child molestation offense, which
occurred ten years before his most recent one, “old,”
“[e]mpirical research on child molesters . . . has shown that,
‘[c]ontrary to conventional wisdom, most reoffenses do not
occur within the first several years after release,’ but may
occur ‘as late as 20 years following release.’ ” Smith v. Doe,
538 U.S. 84, 104 (2003) (quoting National Institute of Justice,
R. Prentky, R. Knight, & A. Lee, U.S. Dept. of Justice, Child
Sexual Molestation: Research Issues 14 (1997)). Furthermore,
“ ‘when convicted sex offenders reenter society, they are
much more likely than any other type of offender to be rear-
rested for a new rape or sexual assault.’ ” Connecticut Dep’t
of Public Safety , 538 U.S. at 4 (quoting McKune, 536 U.S.
at 33). The Washington Legislature therefore had a “reason-
able basis for believing that dramatically enhanced sentences
for habitual [sex offenders who commit at least two serious or
violent sex offenses] ‘advance the goals of [its] criminal jus-
tice system . . . .’ ” Ewing, 538 U.S. at 28 (plurality opinion)
(first alteration omitted) (quoting Solem, 463 U.S. at 297
n.22); see Graham, 130 S. Ct. at 2028 (“Criminal punishment
can have different goals, and choosing among them is within
a legislature’s discretion.”); Harmelin, 501 U.S. at 1006-07
(opinion of Kennedy, J.).

To be sure, as we previously discussed, Norris’s sentence
of life imprisonment without the possibility of parole is harsh
and forsakes any rehabilitative ideal. “By denying [Norris] the
right to reenter the community, [Washington has] ma[de] an
irrevocable judgment about [his] value and place in society.”
Graham, 130 S. Ct. at 2030. But regardless whether we agree
with the propriety of this judgment,23 we cannot conclude that
23
It is unclear whether determinate recidivist sentencing schemes have
any appreciable effect in decreasing crime, see California Legislative Ana-
lyst’s Office, A Primer: Three Strikes — The Impact After More Than a
Decade (Oct. 2005), http://www.lao.ca.gov/2005/3_strikes/3_strikes_
 NORRIS v. MORGAN 16237
it is constitutionally infirm in light of the gravity of Norris’s
offense and criminal history. Norris’s sentence “reflects a
rational legislative judgment, entitled to deference,” Ewing,
538 U.S. at 30 (plurality opinion), that sex offenders who
have committed a serious or violent sex offenses and who
continue to commit such sex offenses must be permanently
incapacitated. Norris’s thus is not “ ‘the rare case in which a
threshold comparison of the crime committed and the sen-
tences imposed leads to an inference of gross disproportion-
ality,’ ” Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.),
and we need go no further.
III.
[15] We conclude that Norris’s sentence is not grossly dis-
proportionate to his crime and so does not violate the Eighth
Amendment’s prohibition against cruel and unusual punish-
ment. Thus, regardless whether the Washington Court of
Appeals’s failure to weigh the severity of Norris’s sentence in
determining whether it was grossly disproportionate to the
offenses he committed was an objectively unreasonable appli-
cation of the gross disproportionality principle as established
by the Supreme Court, we must affirm the district court’s
denial of Norris’s petition for a writ of habeas corpus.
AFFIRMED.

102005.htm, or whether they promote a retributive penological goal, see
Michael Vitiello, Three Strikes: Can We Return to Rationality?, 87 J.
CRIM. L. & C. 395, 427 (1997). Additionally, many commentators have
suggested that recidivist sentencing schemes are influenced in large part
by political pressure to appear “tough on crime” rather than legitimate
penological justifications. See, e.g., Pamela S. Karlan, “Pricking the
Line”: The Due Process Clause, Punitive Damages, and Criminal Punish-
ment, 88 MN. L. REV. 880, 890 (2004); Nancy J. King & Susan R. Klein,
Essential Elements, 54 VAND. L. REV. 1467, 1488 (2001). In any event,
“criticism [regarding the wisdom, cost-efficiency, and effectiveness” of
recidivist sentencing schemes] is appropriately directed at the legislature,
which has primary responsibility for making the difficult policy choices
that underlie any criminal sentencing scheme.” Ewing, 538 U.S. at 28.