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Clark v. Ryan

United States Court of Appeals, Ninth Circuit

September 2, 2016

David Bernard Clark, Petitioner-Appellant,
v.
Charles L. Ryan, Director of the Arizona Department of Corrections, Respondent-Appellee.

          Argued and Submitted August 12, 2016 San Francisco, California

         Appeal from the United States District Court No. 4:13-cv-00129-JAS for the District of Arizona James Alan Soto, District Judge, Presiding

          Sandra L. Slaton (argued) and Kristin Roebuck, Horne Slaton PLLC, Scottsdale, Arizona, for Petitioner-Appellant.

          Andrew 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.

         SUMMARY[**]

         Habeas Corpus

         Affirming 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).

          OPINION

          GRABER, Circuit Judge.

         Petitioner 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.

         In 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).

         In 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.

         Petitioner 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.

         Under 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 ...


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