Saturday, January 03, 2009

Case o' The Week: Duncan Do-Nots: 28 years for Sex Registration Offense Grossly Disproportionate

Judge Bybee, (right) joined by Judges Kleinfeld and Canby, end 2008 with a bang: with an Eighth Amendment habeas reversal of a California sex-registration sentence. See Gonzalez v. Duncan, __ F.3d __, No. 06-56523, 2008 WL 5399079 (9th Cir. Dec. 30, 2008), decision available here.

Players: Big victory by CD Cal. Federal Defender Sean Kennedy and Deputy FPD Gia Kim.

Facts: Petitioner Gonzalez was charged with two felony counts of failing to register, strikes were alleged, and Gonzalez decided to go pro per. Id. at *1. He turned down a two-year offer, and went to trial. Id. The jury acquitted on the failure to register a change of address, and convicted on failure to register within five working days of Gonzalez’s birthday. Id. at *2. (He had registered within three months of his birthday). Id.

He was sentenced to twenty-eight years to life, and lost his state appeals and his federal habeas petition in the district court. Id. at *2-*3.

Issue(s): “On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.” Id. at *1.

Held: “[W]e . . . conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court’ of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonably application of clearly established federal law under 28 U.S.C. § 2254(d)(1).” Id.

Of Note: In Gonzalez authoring Judge Bybee (joined by Judges Kleinfeld and Canby) delves the “gross disproportionality” principle of the Eighth Amendment. Id. at *3. Judge Bybee surveys five Supreme Court decisions for “guidance on how gross disproportionality review operates in practice.” Id. He concludes that the “gross disproportionality” principle is clearly established – but “the details are not.” Id. at *6. To help flesh out these details, Judge Bybee logically turns to how the Ninth Circuit has approached this corner of Eighth Amendment law. Id. at *6.

Logical to look to the Ninth, yes, and done by federal habeas courts all the time – but technically allowed under AEDPA? In Carey v. Musladin, 549 U.S. 70, 74 (2006), the “button” habeas case, the Ninth’s citation of its own precedent was a little sub-issue that got batted around a fair bit. As demonstrated here in Gonzalez, however, it is tough to divine the “details” of a “clearly established” Supreme Court decision without considering circuit court authority. This is particularly true in our era of fractured Supreme Court decisions, where plurality is the rule, not the exception. Maybe it is O.K. to cite circuit authority if one does so quietly, or inconspicuously (small font? a footnote?)

Good old AEDPA: the only area of law that makes the Rule Against Perpetuities seem intuitive, by comparison.

How to Use: Gonzalez turned down an offer of two years; his ultimate sentence was twenty-eight years to life. Id. at *1. The fact that his ultimate sentence was a high multiple of the plea offer he rejected is relevant to determining whether a Three Strike sentence is grossly disproportionate to the triggering offense. Id. at *8 & n.11. If you see an Eighth Amendment claim in your client’s future, document the history of rejected offers.

(Also, along the lines of the observations in the “Of Note” section above, it interesting that Judge Bybee cites Reyes v. Brown – a Ninth Circuit case – for this proposition. ).

For Further Reading: Referring to a circuit decision in a post-AEDPA habeas petition? Do so sotto voce. For an interesting view on what happens when the Ninth is less – discrete – about its reliance on its own authority, see Note, Ninth Circuit Uses Circuit Opinions to Interpret ‘Clearly Established Federal Law', Harvard Law Review, April 2006, available here.

At its core, the Ninth Circuit’s decision in Musladin addressed more than just the surface issue of when a defendant is deprived of a fair trial – the decision likely represents a concern with AEDPA’s ramifications and possibly its constitutionality. The Musladin majority’s decision to indicate that circuit opinions constitute persuasive authority in interpreting federal law, in contravention of the Supreme Court’s reading of AEDPA, signals the circuit’s concerns about the statute.
Id. at 1938.

Maybe with a new Justice or two on the horizon, the Ninth can muster another swipe at this target?

Image of the Honorable Jay Bybee from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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