Marvin Mosby v. Perry Russell

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2022
• Docket: 20-16894
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARVIN MOSBY, No. 20-16894

Petitioner-Appellant, D.C. No. 3:14-cv-00251-MMD-WGC v.

PERRY RUSSELL, Warden; ATTORNEY MEMORANDUM* GENERAL,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Submitted May 11, 2022** Pasadena, California

Before: IKUTA, NGUYEN, and OWENS, Circuit Judges.

Marvin Mosby was sentenced to life in prison without the possibility of

parole under Nevada’s three-strikes law, following his 2011 conviction for larceny.

See Nevada Revised Statutes sections 205.270, 207.010(1)(b)(1). He now appeals

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). from the district court’s order dismissing his 28 U.S.C. § 2254 petition for a writ of

habeas corpus. As the parties are familiar with the facts, we do not recount them

here. Reviewing the district court’s decision de novo, see Haney v. Adams, 641

F.3d 1168, 1170 (9th Cir. 2011), we affirm.

Mosby argues that his sentence of life without parole for stealing a camera is

grossly disproportionate and thus constitutes cruel and unusual punishment in

violation of the Eighth Amendment. But under the Antiterrorism and Effective

Death Penalty Act, we may grant his habeas petition only if the decision of the

Nevada Supreme Court rejecting that very claim and affirming his life sentence

“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). And the Supreme Court has made it clear that, under its Eighth

Amendment proportionality precedents, “the only relevant clearly established law

amenable to the ‘contrary to’ or ‘unreasonable application of’ framework is the

gross disproportionality principle, the precise contours of which are unclear,

applicable only in the ‘exceedingly rare’ and ‘extreme’ case.” Lockyer v. Andrade,

538 U.S. 63, 73 (2003) (citation omitted).

1. The Nevada Supreme Court’s decision was not “contrary to” the gross

disproportionality principle. Firstly, the court’s failure to conduct an intra- and

inter-jurisdictional analysis or give decisive weight to the fact that Mosby’s

2 sentence does not include the possibility of parole does not mean it contradicted

this principle, because only the gross disproportionality principle itself is clearly

established—the precise factors a court must consider (including parole and

jurisdictional comparisons) are not. See id.

Nor did the court contradict clearly established law by stating that Mosby’s

sentence was not so disproportionate as to “shock the conscience.” The court’s

invocation of the phrase “shock the conscience” appears to have been a reference

to the Nevada state constitutional standard for cruel and unusual punishment, and

not necessarily the federal standard.1 See Blume v. State, 915 P.2d 282, 284 (Nev.

1996). Because Mosby had argued that his conviction violated both the state and

federal constitutions, the “shock the conscience” language is better understood as

addressed to Mosby’s state law claim. Moreover, the Nevada Supreme Court

clearly weighed the “gravity of [Mosby’s] offense” and his “history of recidivism,”

and the fact that he was “sentenced as a large habitual criminal,” all of which are

factors the U.S. Supreme Court has weighed in proportionality cases. See, e.g.,

Rummel v. Estelle, 445 U.S. 263, 276 (1980); Harmelin v. Michigan, 501 U.S. 957,

1002 (1991) (Kennedy, J., concurring in part and concurring in the judgment).

Nor was Mosby’s case materially indistinguishable from Solem v. Helm, 463

1 The Nevada Supreme Court cited both federal case law (which does not contain the “shock the conscience” language) and state case law (which does).

3 U.S. 277 (1983). See Williams v. Taylor, 529 U.S. 362, 406 (2000) (noting that a

state court decision is “contrary to” clearly established law if the state court

confronts facts “materially indistinguishable” from those in a U.S. Supreme Court

case and yet reaches a different result). The Solem Court emphasized the fact that

the habeas petitioner was “not a professional criminal” and his record involved “no

instance of violence of any kind.” 463 U.S. at 297 n.22. Additionally, none of the

Solem petitioner’s prior crimes were crimes against a person. Id. at 297. Mosby,

by contrast, has committed twelve felonies and ten misdemeanors over the course

of almost thirty years. The instant offense and several of his prior convictions

were crimes against specific people. And the camera theft was not “one of the

most passive felonies a person could commit.” Id. at 296 (citation omitted).

Rather, it involved deceiving his victims and then furtively stealing the camera

from a bag one of them was carrying.

2. The Nevada Supreme Court’s decision was also not an “unreasonable

application” of clearly established law. See Harrington v. Richter, 562 U.S. 86,

101-02 (2011) (noting that the “unreasonable application” standard is highly

deferential, and that even an “incorrect” state court decision will not merit habeas

relief so long as “fairminded jurists” could disagree about its correctness (citations

omitted)). At a minimum, fair-minded jurists could disagree about whether

Mosby’s sentence was grossly disproportionate, because there are many cases in

4 which life sentences for petty theft under three-strikes laws have been deemed

constitutional. See, e.g., Rummel, 445 U.S. at 265-66, 285 (upholding life sentence

for obtaining $120.75 by false pretenses); Ewing v. California, 538 U.S. 11, 30-31

(2003) (upholding 25 years to life sentence for stealing three golf clubs).

And the fact that Mosby’s sentence excludes the possibility of parole does

not push the Nevada Supreme Court’s decision beyond the realm of reasonable

disagreement. Cf. Harmelin, 501 U.S. at 996 (finding life without parole not cruel

and unusual punishment for a nonviolent drug crime and noting that “retroactive

legislative reduction and executive clemency” were still available). Solem did not

imply that nonviolent property crimes can never be punished with life without the

possibility of parole. 463 U.S. at 297 n.24 (“We raise no question as to the general

validity of sentences without possibility of parole.”).

In short, the Nevada Supreme Court’s decision upholding his sentence was

not contrary to or an unreasonable application of the gross disproportionality

principle.

AFFIRMED.