Marvin Mosby v. Perry Russell ( 2022 )

NOT FOR PUBLICATION FILED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