David Clark v. Paul O'Connell
2016 U.S. App. LEXIS 16260
9th Cir.2016Background
- David Bernard Clark pleaded guilty in 1982 to sexual misconduct (sex with a 14‑year‑old when he was 18) and completed four years’ probation.
- Arizona enacted a modern sex‑offender registration law in 1983 (Ariz. Rev. Stat. § 13‑3821); Clark was required to register based on his 1982 conviction.
- Clark was arrested in 2009 for failing to register, pleaded guilty in 2010 to a Class 4 felony (failure to register), and received a stipulated 3.5‑year prison term.
- Clark challenged the conviction under the Ex Post Facto Clause; the Arizona Court of Appeals relied on State v. Henry and Smith v. Doe to reject the challenge; the Arizona Supreme Court denied review.
- Clark sought federal habeas relief arguing the state court unreasonably applied clearly established Supreme Court law; the district court denied relief; the Ninth Circuit reviewed de novo and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arizona’s registration statute, as applied retroactively, violates the Ex Post Facto Clause | Clark: retroactive application and criminal prosecution for failure to register is punitive in purpose/effect and therefore barred | State/Arizona: statute is civil/regulatory (public safety), Smith controls, and punitive effects do not override regulatory intent | Held: No Ex Post Facto violation; state court reasonably applied Smith |
| Whether the Arizona Court of Appeals unreasonably applied Smith v. Doe | Clark: Arizona’s scheme (internet identifiers, broad disclosure, lifetime registration) is materially different from Alaska’s and is punitive | State: statute includes tailoring (risk‑based disclosure, exceptions, termination for young offenders) and parallels Alaska’s rational link to public safety | Held: Arizona’s distinctions not sufficient; Henry reasonably followed Smith |
| Whether Mendoza‑Martinez factors indicate punishment | Clark: factors (public shaming, affirmative restraints, lifetime duration) show punitive effect | State: most factors weigh toward regulatory purpose (rational connection, limited applicability, exceptions) | Held: On balance, factors do not render statute punitive; state court’s balancing was reasonable |
| Whether prosecution for failure to register changes the ex post facto analysis | Clark: criminal penalties for noncompliance make the scheme punitive when applied retroactively | State: Smith and subsequent precedent treat prosecution for noncompliance as compatible with a civil regulatory scheme; prosecution does not convert regulatory purpose to punishment | Held: Prosecution for noncompliance does not make the statute punitive for Ex Post Facto purposes; Clark’s claim fails |
Key Cases Cited
- Smith v. Doe, 538 U.S. 84 (sex‑offender registration can be civil and nonpunitive)
- Kansas v. Hendricks, 521 U.S. 346 (Ex Post Facto Clause forbids retroactive punitive measures)
- Kennedy v. Mendoza‑Martinez, 372 U.S. 144 (nonexhaustive factors for determining whether a statute is punitive)
- Woodford v. Visciotti, 537 U.S. 19 (AEDPA highly deferential standard to state courts)
- Pollard v. White, 119 F.3d 1430 (Ninth Circuit standard of de novo review for habeas legal questions)
- State v. Henry, 228 P.3d 900 (Ariz. Ct. App. decision applying Smith to Arizona statute)
- United States v. Elkins, 683 F.3d 1039 (using Smith to reject Ex Post Facto challenge to federal SORNA)