and Submitted August 12, 2016 San Francisco, California
from the United States District Court No. 4:13-cv-00129-JAS
for the District of Arizona James Alan Soto, District Judge,
L. Slaton (argued) and Kristin Roebuck, Horne Slaton PLLC,
Scottsdale, Arizona, for Petitioner-Appellant.
S. Reilly (argued), Assistant Attorney General, Capital
Litigation Section; Lacey Stover Gard, Chief Counsel; Mark
Brnovich, Attorney General; Office of the Attorney General,
Phoenix, Arizona; for Respondent-Appellee.
Before: Michael Daly Hawkins and Susan P. Graber, Circuit
Judges, and James V. Selna, [*] District Judge.
the district court's denial of a habeas corpus petition,
the panel held that the Arizona Court of Appeals'
decision that Arizona's modern sex offender registration
statute is not an ex post facto law is neither contrary to,
nor an unreasonable application of, the Supreme Court's
decision in Smith v. Doe I, 538 U.S. 84 (2003).
GRABER, Circuit Judge.
David Bernard Clark appeals the district court's denial
of his petition for writ of habeas corpus. Petitioner
contends that an Arizona Court of Appeals' decision that
Arizona's modern sex offender registration statute, Ariz.
Rev. Stat. § 13-3821, is not an ex post facto law is
both contrary to and involves an unreasonable application of
clearly established federal law. Reviewing the district
court's decision de novo, Pollard v. White, 119
F.3d 1430, 1433 (9th Cir. 1997), we affirm.
1982, Petitioner pleaded guilty to sexual misconduct, a Class
2 felony in Arizona, arising from an incident in which he
engaged in sex with a fourteen-year-old, which is below the
legal age of consent, when he was eighteen years old. As
punishment, he received and completed a four-year term of
probation. Arizona enacted its modern sex offender
registration statute in 1983, Ariz. Rev. Stat. §
13-3821, requiring Petitioner to register as a sex offender
because of his prior conviction for sexual misconduct.
See State v. Henry, 228 P.3d 900, 904 (Ariz.Ct.App.
2010) (noting that, between 1978 and 1983, Arizona was
without a sex offender registration statute).
December 2009, Petitioner was arrested in Cochise County,
Arizona, for failing to comply with the statute. In January
2010, he pleaded guilty to a charge of failure to register as
a sex offender, a Class 4 felony, and was sentenced to a
stipulated prison term of three and one-half years.
Petitioner filed a petition for post-conviction relief with
the state trial court, arguing that his conviction violated
the Ex Post Facto Clause of the United States Constitution.
The state trial court rejected that claim on the merits,
relying on Henry, 228 P.3d at 908. In
Henry, the Arizona Court of Appeals held that
Arizona Revised Statute section 13-3821 did not violate the
right against ex post facto punishment protected by the
United States or the Arizona Constitution. Id. Henry
applied the United States Supreme Court's decision in
Smith v. Doe I, 538 U.S. 84 (2003), which upheld
Alaska's sex offender registration statute against an ex
post facto challenge. Henry, 228 P.3d at 906-08. In
Petitioner's case, the Arizona Court of Appeals followed
Henry to hold that Petitioner's conviction was
not an ex post facto violation. Petitioner appealed that
decision to the Arizona Supreme Court, which denied review.
then filed a federal petition for writ of habeas corpus. The
district court denied the petition, holding that the state
court did not apply Smith unreasonably to the facts
of this case.
the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), habeas relief is available if the last
reasoned state court decision-here, the decision of the
Arizona Court of Appeals-was contrary to, or an unreasonable
application of, clearly established federal law as determined
by the United States Supreme Court. 28 U.S.C. §
2254(d)(1). "A state court's decision can involve an
'unreasonable application' of Federal law if it
either 1) correctly identifies the governing rule but then
applies it to a new set of facts in a way that is objectively
unreasonable, or 2) extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable." Hernandez v. Small,
282 F.3d 1132, 1142 (9th Cir. 2002); see also Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (noting