Clark v. Ryan, No. 15-15531 (9-2-2016)(Graber w/Hawkins & Selna, D.J.). The 9th affirms the denial of a habeas challenging Arizona's sex registration statute. The 9th holds that the requirement for registration for sex offenders convicted prior to the enactment of the sex offender statute requiring registration in 1983 is not ex post facto. The 9th employs AEDPA deference to conclude that the state's appellate court decision was neither contrary to, nor an unreasonable application of, the Supreme Court's decision in Smith v. Doe I, 538 US 84 (2003). Smith upheld Alaska's sex offender registration against an ex post facto challenge. Here, the 9th concluded that the primary purpose was not punitive (!) but rather a civil regulatory scheme. The fact there are criminal sanctions does not transform the statute from civil to criminal. The 9th uses the test to show that on balance, the statute's intent was not to further punish (!), was not burdensome (!), and has a nonpunitive purpose of public safety. It was also not excessive.
The decision is here: