George W. Nulph v. Dave Cook, Director of the Department of Corrections Hardy Myers, Attorney General of the State of Oregon

Doe, 459, 461 Cir. States

1996). Otherwise, will retain panel proceedings.7 further jurisdiction over all REMANDED. NULPH,

George Petitioner- W. Appellant, COOK, Department Dave Director of the Corrections; Hardy Myers, Attor ney Oregon, General of the State

Respondents-Appellees.

No. 01-35556. Appeals, States Court of United Ninth Circuit. Argued July and Submitted 2002. Filed June 2003. Co., 100-02, Despite potential judicial resolved. See Steel loss in econo- Ceja- my, may not decide the merits of 118 S.Ct. 1003. appeal jurisdictional Prado's before the issue Willis,

Wendy R. Assistant Federal Pub- Defender, Portland, OR, peti- lic tioner-appellant.

Timothy Sylwester, A. Assistant Attor- General, Salem, OR, ney for respon- dents-appellees. FLETCHER, FERGUSON,

Before: W. KING,* Judges, and District Circuit Judge. FERGUSON; Dissent

Opinion by Judge Judge District KING.

OPINION

FERGUSON, Judge. Circuit George Petitioner/Appellant William Nulph appeals the District Court’s denial petition, alleged of his habeas which Oregon Board of Parole State * forma, sitting by designation. George King, States The Honorable H. United Judge of Cali- District for the Central District (“Board”) vindictively eligibility increased his sen- and calculate release range. a matrix Id. at 453. date based on 30-years 75-years imprison- tence from in this on a prevailed he Court ment after Under the administrative rule effect challenging action previous habeas offense, at the time of the Board application of two retrospective Board’s required to treat two or more consecu The District Oregon sentencing rules. judicially imposed tive minimum terms as petition, rejecting Court denied the habeas and either “single, a unified term override Judge’s recommendation to Magistrate (citing Id. uphold them all or them all.” grant relief. We reverse. Parole, 188, Bd. 736 Roof v. 193, (1987), interpreting Ad

P.2d Or. (hereinafter (1986) § min. R. 255-35-023 I. rule”)). 1987, “all-or-nothing In the ad Original A. Sentence permit ministrative rule was amended to “ the Board to override ‘one or more of the 1986, Nulph by jury In was convicted a ” 454, judicially imposed Id. at mínimums.’ Oregon multiple state court of offenses 255-35-023(3) § (quoting Or. Admin. R. kidnapping rape. relating to a (1987) (hereinafter rule”)). “one-or-more Nulph dangerous trial court found to be pursuant Oregon offender Revised Stat- case, Nulph’s applied In the Board § him ute 161.725 and sentenced to seven new rule to one-or-more override three (with 30-year 15-year indeterminate terms 15-year ap- It minimum terms. also terms) 5-year minimum and one term. method, plied range matrix new enacted 30-year ran Five of the terms consecutive- offense, time of after the set his ly. imposed The court a maximum sen- range matrix at 310 to months.2 Id. at years, a minimum of 75 tence of 454. The Board thus set release years. eligibility year following date for the imprisonment. a term of 360-months Id. In Oregon’s two-step accordance with at 453-54. procedure sentencing, for the Board held a hearing explaining why uphold in 1987 to set eli In all release did Faatz, terms, judicially gibility imposed date.1 See 27 F.3d the Board (9th Cir.1994) (“1987 decision”) 451, 452-53 (describing state decision stated procedures whereby trial court im minimum “the terms not an [are] posed appropriate an penalty indeterminate sentence and the for the criminal of- sentence). Board later set the actual Be fense and the minimum terms are not nec- imposed essary protect public.” cause the trial court had a mini The Board imprisonment, mum term of explained: further “We feel that the sen- option uphold judicially either to tences or the mínimums that were imposed minimum term or to override it the courts is excessive and that [sic] "danger- lating range principal 1. Because was found to abe conviction law, ous offender” under state the Board adding ranges it to the base for each hearing parole was to set a date consider- for Nulph, 27 at additional conviction. F.3d ation, rather than date for actual release. 453(citing § former Or. Admin. R. 255-35- Faatz, Nulph 453 & n. 1 005(11)). legislature re- the state Cir.1994) 144.228(1)). (citing § Or.Rev.Stat. calculating the vised the rules for matrix ranges so as to reflect the standard for offense, Nulph's Oregon 2. At the time of fol- (citing all the crimes. Id. at 454 1987 Or. "principle-and-base” lowed a de- method of 2, 42(2)). §§ Laws ch. termining prisoner's range by calcu- you your guideline range you within sion setting is would like us to consider months, appropriate an sanction what was considered the former rules. point your for criminal conduct.” Id. nothing It’s kind of an all or deal terms n. 5. your at 454 minimum In response, sentences.” Nulph stated: “Yes.” The Board member B. Previous Petition for Habeas Relief if asked that was his understanding, and remedies, Nulph responded affirmatively. exhausting After his state de- questions ferred all further Nulph filed a federal writ of habeas cor- to the inmate assistant, challenging legal proceeded who pus, identify the 1987 Board decision alternatives, Ex several including: overriding as violative of the Post Facto and Due terms, all the minimum applied departing Process Clauses because it two down- factors, wards for mitigating administrative rules that were not in effect and adjusting upwards aggravating for at the time of his offense. Id. at 454. The factors. petition.

District Court denied the deliberation, After the Board unani- relief, appeal, granted On we habeas mously voted to “sustain judicially [all the] holding “retrospective application that the Accordingly, minimum[s].” calculating of the new method for the ma- Nulph’s Board imprisonment reset term of Ex trix Post Facto violated from imprison- 360-months to 900-months rejected (“1995 Clause.” Id. we ment. The Board decision Nulph’s post challenge decision”) facial ex facto reasoned: “The minimum term the Board’s use of the new one-or-more appropriate is an sanction for the criminal mínimums, rule to override three of his as necessary protec- conduct and [is] opposed all-or-nothing to the rule in effect tion public.” It noted that it had 454, at the time of Id. at offense. applied rule and used Moreover, explicitly 457. declined to the old matrix-range Nulph’s pa- method. partial address whether the override vio- role consideration date was moved from post process princi- lated ex facto and due year year 2017 to the applied ples Nulph. as Id. at 457. D.Present Petition for Habeas Relief retrospective ap-

Based on the Board’s plication of the calculating new method for 16, 1997, January Nulph peti- On filed a range, Nulph’s pa- the matrix we vacated corpus tion for writ of habeas in the eligibility role date and remanded for re- court, alleging state that the 1995 sentencing. Id. The District Court re- decision was unlawful and his due violated manded to the Board for reconsideration process rights under both the federal and sentence under the old method Nulph alleged state constitutions. calculating range, explicitly for the matrix the Board’s action was “retribution be- noting that relief had denied habeas been petitioner’s appeal cause success on respects. in all other decision,” of the Board’s earlier and ar- “apparent gued that vindictiveness is Re-Sentencing C. on Remand dulling appeal rights peti- aimed at remand, a hearing petition On the Board held tioner others.” The was dis- and- prejudice. Oregon recalculate sentence. On Febru- missed without 22, 1995, ary Nulph appeared Appeals in- with an Court of affirmed the dismissal legal opinion, Supreme At opening Oregon mate assistant. of without and the hearing, a “My subsequently Board member stated: Court denied review. 153, understanding your 152 appellate Thompson, from deci- v. 951 P.2d 1056 denied, 507, (1998), 953 II. 326 Or.

205 rev. (1998). P.2d 395 de novo the District We review pro se corpus. then filed the instant habe- Court’s denial of habeas Baeta Cir.2001). process Sonchik, 1261, 1263(9th alleging a federal due petition, as 273 F.3d by the Board’s re- effected factual deprivation review the District Court’s We that the Board sentencing. Lopez Thomp He asserted findings for clear error. 1116(9th son, 1110, Cir.), vindictively increased his sentence had 202 F.3d cert. denied, months without from 360 months to 900 531 U.S. S.Ct. (2000). why the Plaintiffs

articulating “how or L.Ed.2d 138 so situation or behavior deteriorated pe filed his habeas Because previous parole

dramatically since his tition after the Anti-Terrorism and Effec justify extending hearing 1987 to board (“AED- Penalty Act of 1996 tive Death [by] years.” incarceration PA”)’s date, AEDPA applies. effective Magistrate Judge agreed Janice Stewart Morgan, Pirtle v. 1166— See recommending that the Dis- Nulph, (9th Cir.2002) (citing Murphy, Lindh v. grant corpus relief. trict Court 320, 326, S.Ct. Judge found that a Magistrate (1997)). AEDPA, L.Ed.2d 481 “Under sumption applied under of vindictiveness may grant federal courts a writ of habeas Pearce, 711, 395 U.S. North Carolina v. corpus only ruling if the state court ‘result 725-26, 2072, 23 L.Ed.2d 656 89 S.Ct. to, in contrary ed a decision that was or (1969), by limited Alabama v. 490 of, involved an unreasonable 794, 799, 2201, 109 S.Ct. 104 L.Ed.2d U.S. law, clearly Federal as deter established (1989). rejected the State’s 865 She also Supreme mined Court of the United proffered explanation for the enhanced States’ or ‘was based on an unreasonable sentence —that the all- elected in light determination of the facts of the or-nothing failing to rebut rule —as in presented pro evidence the State court presumption she found in- Pearce because ” ceeding.’ 1167(quoting Id. at 28 U.S.C. sufficient evidence that he elected the rule. 2254(d)). § that, Further, she found even under the rule, all-or-nothing Board could have However, AEDPA’s deferential in the avoided the drastic increase sen- standard noted not in above does Thus, granting she recommended tence. this case because the state court did not relief. process reach the merits of due law, Oregon corpus claim. Under habeas 8, 2001, May District Court de- On is available Although nied the District habeas relief. (1) agreed Magistrate Judge petition allegations Court with the a makes [w]hen which, true, prisoner that the if Pearce vindictive- show applied, disagreed though validly custody, subjected ness it the State to Rather, “imprisonment failed to a presumption. rebut that further or restraint” of if person concluded the increase the sen- would be unlawful (2)[w]hen court, justified tence was attributable to election to the Finding deprivations of a petition alleges no evi- other vindictiveness, which, if prisoner’s legal rights dence of actual the District of a kind true, judicial require denied relief. filed immediate Court habeas would timely appeal. scrutiny, appears if it also to the court

1057 timely remedy triggers other is available in his no prisoner. Pearce, to the vindictiveness which the under State has failed to rebut. 21, 934, Cupp, Penrod v. 283 Or. 581 P.2d (1978). 937 A defendant process has a due The state court this case relied on the right under the Fourteenth Amendment Penrod standard when it dismissed subjected not to sentencing be vindictive Nulph’s petition entirety in its on its own successfully after attacking a conviction or motion, finding that the “Petition fail[ed] Pearce, 725, sentence. 89 corpus state a claim for habeas relief [sic] Supreme S.Ct. 2072. As the Court has allege particu- fact fail[ed] [sic] explained: punish person “To because he which, true, larity if would entitle him to has what plainly done the law him allows corpus Oregon relief.” The Court process to do is a due violation of the most Appeals affirmed the lower court’s deci- basic sort....” Hayes, Bordenkircher v. opinion, sion without and the Oregon Su- 357, 363, 663, 434 U.S. 54 L.Ed.2d preme subsequently Court denied review. (1977). process “requires Due also Thompson, that a apprehension defendant be freed of denied, (1998), P.2d 205 rev. 326 Or. retaliatory of such a part motivation on the (1998). 953 P.2d 395 Pearce, sentencing judge.” Peterson, In Keenan v. 307 Or. (footnote omitted). S.Ct. (1989), Oregon Supreme P.2d 441 Otherwise, the defendant will be chilled in petition Court held that when a fails right challenge the exercise of his allege type either of harm described conviction or sentence. Id. Penrod, the court should “dismiss[ ] trial Noting that the “existence of a retaliato- ... reaching the writ without the merits.” would, ry course, motivation be ex- 442; Id. at Wright, see also v. McClaflin tremely prove difficult in any individual 688, 1098, 107 813 P.2d 1102 6n. case,” Supreme in Court Pearce craft- (1991) (“[T]he court should not issue a prophylactic ed a whereby measure vindic- decision on the merits if pleading fails presumed judge tiveness is “whenever a allege facts raise a claim that is imposes a upon more severe sentence a cognizable in corpus.”). accor- trial,” defendant after a new and the rea- Keenan, dance with Penrod and we under- sons for the not enhancement “affirma- do stand the state court’s dismissal of 20, 726, tively appear.” at Id. 725 n. 89 petition not to a have been decision on the S.Ct. 2072. merits. recently We held Pirtle that “when it Supreme Court has since clear that a state court has not reached applicability pre limited the the Pearce issue, properly the merits of a raised we sumption to “in cases which there is must review it de novo.” 313 at 1167. F.3d ‘reasonable likelihood’ that the increase Because the state court did not issue a product sentence is the of actual vindic Nulph’s petition, decision on the merits of part sentencing au tiveness on the of the we review claims de novo. Id. 799, 109 thority.” S.Ct. Goodwin, 2201(quoting United States v. appeal, Nulph grant

On asks tous habe- 368, 373, 2485, as relief on 457 U.S. 102 S.Ct. the basis that the Board vindic- omitted). (1982)) (citations tively following increased his sentence L.Ed.2d 74 We -the appeal. Nulph reversal of its decision on have held that no reasonable likelihood of 45-year contends that unless there is some the Board’s increase vindictiveness exists motivation, ... event,” a reversal and whenever vindictive] such as “triggering Benov, 409, imposes 197 F.3d judge more severe remand. Bono Cir.1999). trial, upon 417-18 a defendant after a new him affirmative- doing

reasons for so must presumption Pearce When Pearce, 395 at ly appear.”) (quoting U.S. only by “objective applies, it is rebutted 2072), 726, 89 S.Ct. there is reasonable concerning identifiable conduct information Bono, likelihood of vindictiveness. See occurring the defendant part on the Further, F.3d at 417-18. original sentencing time of the after the the Board’s decision even applies to at 89 S.Ct. proceeding.” 395 U.S. may have though different Board members States, 2072; also United see Wasman presided over the case on remand. See 559, 565, Comm’n, Fenner v. Parole U.S. (1984) (holding that the rea L.Ed.2d 424 (9th Cir.2001). Accordingly, we “objective informa sons must be based presume vindictiveness unless the State justifying the increased tion in the record can to rebut the Pearce meet its burden sentence”). The State bears the burden of presumption. Wasman, 468 rebutting presumption. 569, 104 If it fails to do U.S. at S.Ct. 3217. argues pre- The dissent that the Pearce so, may grant vacate the sentence and sumption does this case be- Pearce, habeas relief. See U.S. hearing record of the Board “[t]he cause 89 S.Ct. 2072. after remand shows that stated that pre-1987 he wanted the ” Presumption A. Pearce of Vindictive- nothing’ ‘all rule.’ at 8626-27. or Dissent ness However, Nulph’s of the “all or election nothing “affirmatively ap- does not rule” First, determine whether the we must Moreover, below, pear.” as discussed ap- Pearce of vindictiveness there is insufficient evidence sentence. This plies to new “ nothing elected the “all or rule” and thus sumption applies if there is a ‘reasonable increasing Nulph’s the Board’s reasons for likelihood’ that the increase sentence is illegitimate. Judge sentence are While product of on the actual vindictiveness King analysis is correct that the Pearce Smith, part sentencing authority.” of the two-pronged, blindly accept we cannot (citations 490 U.S. at 109 S.Ct. 2201 proffered Board’s reasons. omitted); Bono, F.3d at see also 416- event”). (requiring “triggering Presumption B. of the Pearce Rebuttal agree with the District Court We pre Having found that the Pearce presumption applies that the Pearce in this sumption applies, we must next determine case. Because the Board whether the State has carried its burden (45 years) harsher sentence more on direct to rebut the of vindictiveness. Nulph’s challenge from successful remand Wasman, 104 S.Ct. 3217. retrospective application to its of the new only can if The be overcome method, matrix-range and because the “objective information proffers the State increasing Nulph’s Board’s reasons for concerning identifiable record] [from “affirmatively appear,” sentence do not 798-99, part conduct on the of the defendant oc at U.S. 109 S.Ct. 2201(“In original of the sen- curring order to assure the absence of after the time [a Pearce, response at his affirmative tencing proceeding.”3 is not Bono, 2072; Rather, 197 F.3d accord an a question. answer to ais 420; Rapal, see also United States response a compound, to and somewhat Cir.1998) (“The 661, 664 ambiguous, statement. mem- something to do reason must have at least ber that he stated to understood event, conduct or an other than the want apply the Board to the former way in some to the appeal, attributable “rules,” including both the old matrix- defendant.”). rule, method and the all-or-nothing then stated “it’s kind of an all or

Here, argues that the Board’s State nothing Nulph’s response deal.” one word justified sentence is increase this statement does not adequately dem- all-or-nothing election of the rule that he affirmatively onstrate elected the flexibility and the Board’s resultant loss all-or-nothing rule. calculating parole-eligibility his date when reject argument. on remand. We considering In whether actions First, Nulph freely appli- did not elect the are knowingly sufficient to show that he Second, all-or-nothing cation of the rule. rule, all-or-fiothing chose the the facts of despite arguments about Board’s Palacios v. Board Parole and Post- flexibility, loss of the State has not Supervision, Prison remand, any why, sented facts to show on (1995), P.2d 69 are instructive. In Palac- 75-year impris- the Board found a term of ios, affirmatively argued the defendant appropriate onment to be when it had the record that the apply Board should previously found that term to be excessive all-or-nothing rulé to his case. Id. at 70. unnecessary protect public. response, In the Board members cautioned repeatedly him that he had the choice to Evidence Insufficient proceed all-or-nothing under either “Elected” the Rule rule, rule or the one-or-more and that First, there is insufficient evidence that unlikely Board was to override the mini- all-or- elected the all-or-nothing mums if he chose the rule. nothing case. At rule the re-sen- fact, Id. at 70-71. In the various Board tencing hearing, Nulph responded affirma- eight members asked the defendant times tively to a Board statements member’s if him options he understood the before that it would implications of his choice. Id. and/or “My The Board member stated: under- contrast, Nulph merely agreed after standing your appellate from decision is am- the Board member made a somewhat you would like us consider what biguous compound statement. The Board considered former rules. It’s kind options in- offered no other and did not nothing your of an all or deal terms of consequences form him of the of his choice. response, Nulph minimum sentences.” In if not tell him that it could stated: ‘Tes.” asked that was his The Board did When they minimum as set understanding, responded affirmatively. he leave the terms were Pearce, pronouncement Rapal, 663(explaining 3. Since the the Su- 146 F.3d at that rele- preme Court has clarified that events occur- may "new evidence vant information include ring original sentencing may the also about conduct or event [the defendant’s] an before sentence, justify e.g., the when addi- harsher culpa- showed her to be more that somehow guilt tional evidence of is later unearthed. Wasman, before”) (citing ble than 134, 141, McCullough, Tex. v. U.S. 569-70, 3217). (1986); S.Ct. 89 L.Ed.2d 104 see also decision, challenge retrospective application nor it offer to the by did thé 1987 Board re-applying rule, the one-or- Nulph option reasoning the of the one-or-more that it disadvantage more rule. did not “on its face defen- general.” dants in 27 F.3d at 457. We by statements the points The State however, that agreed, the Board violated accompanied who legal inmate assistant prohibition post on ex facto laws Nulph hearing. arguing In on be- to the calculating his matrix accordance proffered a Nulph, half of the assistant Thus, with the new rule. we remanded to Board, in- spectrum of alternatives to the only for a recalculation of mínimums, overriding all the de- cluding: pursuant to the old ma- factors, mitigating parting downwards for trix-range issuing method. Id. In the writ adjusting upwards aggravating for fac- corpus, of habeas the District Court’s man- on tors. The State seizes the assistant’s required recompute date also the Board to argument for the override of all the mini- range, explicitly the matrix and it noted Nulph mum as evidence that re- terms every habeas relief was denied application quested the of the all-or-noth- respect. other However, ing Magistrate as the out, Judge pointed argument his for strik- Accordingly, the required Board was not ing all the minimum sentences was consis- to revisit the issue of whether override all-or-nothing tent both the .and the Rather, the minimum terms on remand. rule, one-or-more rules. Under either simply could aspect have left authority Board had the to override all the Nulph’s sentence undisturbed. Alterna- judicially-imposed minimum terms. tively, again applied it could have the one- Apparently recognizing the weakness of recalculating or-more rule after that Nulph requested the record evidence Yet, range. the Board overlooked these rule, application all-or-nothing options. importantly, More it failed to urges the State us to construe the Board’s Nulph. this to explain petitioner’s and the actions “in context.” Considering how little is on the record according The relevant context to the understanding as to actual of the Nulph’s challenge State is to the Board’s him, options available to it cannot be held application Nulph. of the new rules voluntarily he elected the that, posits Nulph The State because all-or-nothing rule on remand. This objection post raised an ex facto to the heightened by the fact that application of the one-or-more rule col- represented by hearing. counsel at the appeal, lateral he elected to have the all- or-nothing purposes rule for of re-sentenc- summary, In there is insufficient evi- State, ing. According to the because dence in support the record to the State’s post failed to facto withdraw ex argument 45-year increase in remand, objection on the Board was com- Nulph’s sentence is attributable to his pelled apply all-or-nothing rule election of all-or-nothing rule. The calculating his new sentence. clearly District in finding Court erred our mandate in mani- acquiescence in the Board’s state- festly ments, require did not along interpreta- with the Board’s justified rule on position, contrary remand. tion of his Nulph, rejected Nulph’s post we ex facto conclusion.4 There is no record evidence notice, pre- hearing 4. The District Court cited the Board’s which stated that asked

1061 Furthermore, Magistrate Judge as the sanction election sufficient to Nulph’s out, Nulph was appears it that pointed The in his sentence. 45-year increase the for the override of the minimum eligible when she Judge was correct Magistrate In- all-or-nothing the rule. term under presented has not the State found deed, of the four factors he satisfies three presump- the to counter evidence sufficient administrative rule section under former of vindictiveness. tion 255-35-022(b).5 Thus, the Board should minimum and have the term overridden All-or-Nothing Rule Does Not 2. The range. the matrix proceeded under Explain Harsher Sentence the that the de- The State contends Board Nulph free- had found that Assuming we matrix proceed to under the clined all-or- of the ly the elected Nulph’s sentence would been because have rule, could not conclude we still nothing (15-20 years), months between 186 to 246 the rebutted that the State the Board years the 30 far below is, Nulph’s election of That vindictiveness. in 1987. That does not appropriate found explain alone does not standing the rule to why the Board decided explain instead a drastic Board such why the far by years, increase the sentence his sentence. to increase appropri- it the found above sentence Further, eligibili- the release ate in 1987. to previously Board had refused but is not the actual date of release ty date In ex- the minimum terms. uphold all prison- a considering whether the date for decision, stated the Board plaining its Thus, society. poses danger to er still appropriate was “an term minimum Board could have continued the and nec- criminal conduct sanction if past that date warranted incarceration public.” protection of essary for the Finally, the by subsequent conduct. his However, concluded 1987 Board had to increase the option also had the Board exces- the terms were opposite —that fac- by aggravating applying matrix range pub- necessary protect sive and inappro- to be if it the sentence tors found any Yet, failed to cite the 1995 Board lic. priately low. culpa- whatsoever of new evidence ‘ sum, explana- an why are left without indication of give any bility or to whether any had resolve doubt as tion to appropriate of the estimates the result sentence was Nulph’s harsher drastically. changed so Nulph elected nothing with whether sentencing do of his structure "to reconsider regard to rule. ... offenses with mínimums— that they or all all be overridden should whether discretion was the 5. The consider upheld.” this notice (1) history/risk it bears neither score of interpretation, following and Board's factors: approv- signature more; (2) other indicia of "part nor were the crimes three or Moreover, has review of record (3) al. our episode”; the minimum criminal same request by Nulph written no uncovered (4) range; exis- and the matrix exceeds term notice. Addicks cipitating the Board's § Cf. R. 255- mitigation. Or. Admin. tence of Parole, 663 P.2d State Bd. of (1985). Nulph three fac- met 35-022 (1983) (noting petitioner that the five, history/risk score was his tors because parole writing his have had "elected in part criminal all a of one were his crimes rule). sentencing former under a considered” i.e., rape, his kidnapping episode, reject reliance the District Court's We also of 900 months exceeded minimum term Board decision’s notation range as determined That applied the Board, i.e., 246 months. 186 to and has applied the rule uncontested part From the of in vindictiveness. review the sentence he receives after a Smith, record, new trial.” Alabama v. for the increased sen- 490 U.S. the reason 794, 798, S.Ct. L.Ed.2d 865 appeal, successful which tence is (1989) Pearce, (quoting North Carolina v. in resulted a lower re- 711, 725, 89 S.Ct. Consequently, the Board used the mand. (1969)). L.Ed.2d 656 In order to ensure

all-or-nothing rule as the means for achiev- prophylactic the efficacious use of the rule ing higher than was unattaina- Pearce, announced the Court clarified matrix-range approach. ble under the old “[wjhile opinion appeared the Pearce imposed this time the Board on its face to announce a rule sweeping of sentence, drastically longer one that was dimension, subsequent our cases have prior at odds with its determination that a made clear its of vindic- 75-year sentence would be excessive and every tiveness does not case unnecessary protect public. where a convicted defendant receives a justify departure Board cannot now such higher sentence on retrial.” at Id. Nulph’s purported based on election of the 2201(quoting 109 S.Ct. Texas v. McCul- rule, particularly where the 134, 138, lough, 475 U.S. direct evidence of his choice is limited to a (1986)) (internal L.Ed.2d 104 quotations pro in response question, se answer to a omitted). Instead, presump- the Pearce which unclear. best only tion applies to situations “in which hold that We State has failed to there is a reasonable likelihood that carry product its burden to rebut the increase sentence is the of actu- al part harsher sentence on vindictiveness on the of the sen- remand tencing authority. was in retaliation for Where there is no such his successful chal- likelihood, reasonable lenge original Thus, the burden remains sentence. it is upon the prove defendant to actual vindic- evident that deprived has been Smith, 799-800, tiveness[.]” 490 U.S. at process due under Pearce and progeny. 109 S.Ct. 2201. Accordingly, we reverse the District Court’s denial of habeas relief and remand Smith, In judge sentenced the de- to the District Court for issuance of the fendant years imprisonment to 30 after corpus writ of proceedings con- entry guilty of a plea. Defendant then opinion. sistent with this guilty plea, moved withdraw his which the trial appellate court denied. The court AND REVERSED REMANDED. reversed jury and remanded for trial. The defendant, convicted and the judge same KING, Judge, District dissenting: him imprisonment plus sentenced to life prison years. consecutive term of 150 respectfully view, I my dissent. sentencing, At judge explained presumption of vindictiveness did not arise he the harsher sentence because case, petitioner has made no accepted guilty when he the defendant’s showing of actual vindictiveness so as to be plea, knowledge only he had the defen- entitled to habeas relief. dant’s version the events. But after a is, course, It well-settled that due trial, jury full judge had heard all of process “requires vindictiveness evidence, including the nature of the against a defendant for having successfully impact crimes and the on the victims. 795-97, attacked his first play conviction must no 109 S.Ct. 2201. '87, My rules. and the newer prior is to harsher that the The Court concluded deci- understanding your appellate from to insufficient was on remand sentence you like us to consider that would be- sion is of vindictiveness presumption the raise former rules. on a considered the what was sentencing defendant judge cause a in nothing deal justifica- kind of an all or “enough It’s provided record fuller sentences. your that minimum second sentence terms of a heavier tions for likely not than to be more said cannot be Nulph: Yes. Mr. is imposes.one motivated who judge

that a your that Okay. Ms. And Middle: 802, 109 S.Ct. Id. at by vindictiveness.” to you how want us understanding of today? matter view this that a the fact we know Nulph: After Mr. Yes. rever- imposed after was

harsher sentence abundantly clear foregoing, it is From the higher tribunal from a remand sal apply the the Nulph that wanted Board reason- necessarily demonstrate a not does whereby Board was rules the pre-1987 the where of vindictiveness likelihood able all or none to either override constrained justifications other reveals record imposed by the sentences of the minimum Thus, contemporaneous ex- any disparity. fully position was consistent judge. This authority sentencing by the planations during Nulph had taken which with that wheth- determining in must be considered proceedings. prior the in first applies the presumption the er Nulph’s majority does not discuss The bases merely potential as and not place, nothing” “all or rule election rebutting presumption. the for the of whether consideration “[b]e- that Here, majority concludes the arises, only in its review of whether but sen- a harsher the Board cause presumption. the respondent rebutted the (45 remand years) on direct tence more analytical framework. disagree I to its challenge from successful the to whether is relevant Nulph’s election ma- application of new retrospective event, any at all. arises method, and because trix-range framework we of where that regardless increasing for Board’s reasons election, I believe consider (ci- appear,’ ‘affirmatively do that there is majority errs when it states omitted), likeli- is a there reasonable tation Nulph that to show evidence insufficient hood vindictiveness.” This nothing” rule. “all or elected questionable The record on the disagree. I based assertion is Nulph were shows the Board’s hearing after remand statements premise ambiguous, that he wanted stated somehow electing nothing” or pre-1987 thought “all he was might have the out- as place took following matrix-range method discussion have old or noth- hearing: “all his election of the opposed set of minimum sen- overriding Chair) (The ing” rule Before Ms. Middle: context, the Board’s Viewed I un- tences. I to make sure want proceed, There is no unambiguous. were today. questions position is your derstand what might (sic) speculating two basis for that there is very You’re aware referring that the Board thought involved, ways have potential two structures to deal with than anything other how setting your can consider the Board ob- is made (sic) This sentences. the minimum term, often okay. We’ll be has not fact that even vious which the old set rules referred to as appeal that argued your on this the statements cerned that ag- criminal conduct is ambiguous, were or that he had misunder- gravated and such a factor that being initial gist inquiry. stood the of the Board’s that range just is an inappropri- Judge Nulph found that The District range ate any without form of míni- the apply have the Board the “all elected to or mums. finding fact

nothing” rule. This of is not clearly erroneous and should not be dis- We have mitigation considered the and appeal.1 turbed on aggravating rejected factors and have all presented Because election it of those and find them moot since the n witha choice of either upholding or over- decision of the Board is unanimous and sentences, riding all of the minimum that that going uphold is we are all Board reasonably concluded that over- the mínimums. riding option light all was not a viable of Nulph’s previous and current criminal con- conduct you [Y]our is such that are too duct.2 explained, As the Board dangerous to risk that that you chance Nulph Mr. is difficult case handle. getting anytime will out be soon and particularly appeal- The choices are not certainly years within anything seven or ing previous to the Board.... [T]he way else is too soon to considering be you Board set at 360 months and Ias that. ... finding look at the record affirmatively record shows that they

not setting you so much that were higher sentence in light at a range, mid but what their comments of election and the constraints im- they appropri- were is that felt that was posed by the nothing” “all or rule.3 As ate for the criminal conduct that was Smith, changed these your past involved in circumstances are history is what justifications sufficient they looking such that “it present were at. The ma- cannot system trix be said to likely as we look at it under the be more than not that [the current calculations get does even it Board was] motivated vindictiveness.” range 802, 109 and the Board is con- See S.Ct. 2201.4 majority’s suggestion 1. The sodomy, Nulph elec- had been convicted of murder knowingly kidnapping. tion was not made or with full and consequences awareness of the of his choice majority 3. The blindly states that we cannot misses the mark. This case is not about accept proffered the Board's reasons. I inquiry whether sufficient was made of agree. blindly accept we do not knowing intelligent to ensure his election proffered simply Board’s reasons because we nothing" of the "all or rule. It is about decline judgment to substitute our for that of whether there is a reasonable likelihood the deciding the Board. pre- whether Nulph's prod- increased aas arises, sumption inquiry our is not whether Regardless uct of actual vindictiveness. agree with the or reasons like the result. knowingly, whether acted the record whether, simply light It is of the Board's shows that the Board believed desired reasons, proffered there is a reasonable likeli- nothing” of the "all or hood that the increased sentence was the There suggest is no evidence to that the Board product of actual vindictiveness. There is no Nulph’s alleged was aware of confusion and showing such on this record. exploited vindictively. majority 4. The finds much fault with the kidnap- decision, Prior to the current convictions for Board’s and claims that it could firearm, ping, possession felon in of a multi- have exercised a options of other ple rape, multiple might counts of counts of not have resulted in the dramatic in- Texas v. Benov, speculative.” is vindictiveness in Bono decision our Nor does 134, 139, 106 S.Ct. Cir.1999), 409(9th McCullough, support (1986). this rec- only 976, On stands 89 L.Ed.2d Bono conclusion. majority’s ord, of vindictiveness in the absence possibility proposition presume event, a court cannot speculative, best. triggering See Kindred at 417. Id. vindictiveness. decline As I would Cir.1990) 1477, 1480 F.2d Spears, 894 vindictiveness, I reach do not sumption logic, vindic- matter (holding “[a]s has respondent of whether question an only danger where becomes tiveness In the absence presumption. the rebutted into a sentencing court prods the event vindictiveness, peti- of presumption the of self-vindication.”). in no This posture of proving actual of bears the burden tioner trigger- a there that where way implies 799- vindictiveness. presume vindic- event, must a court ing case, there is this S.Ct. 2201. In man- this read in If Bono were tiveness. support a record to in the no evidence the ner, reconciled not it could be Accord- vindictiveness. finding of actual in Smith. Supreme Court’s decision to habeas not entitled petitioner is ingly, distinguish Bono Moreover, of the facts judgment I affirm the relief.5 would There, upheld case. we this from grounds. Court, different albeit on District because of vindictiveness no evi triggering event there was than vin motive other suggesting

dence noted fact, specifically dictiveness. made “was extension parole, date that the of statement contemporaneous without the extension.” of support in reasons the Contrary to Bono, at 412. F.3d statement, of the record majority’s America, UNITED STATES contem the Board’s amply reflects hearing Plaintiff-Appellee, its decision. poraneous reasons for reasons, join I cannot foregoing For the majority’s conclusion in the SANCHEZ-SANCHEZ, Alfonso Gustavo in this arose of vindictiveness sumption dant-Ap not “does Pearce Defen case. The pellant. possibility where apply in situations granted habeas relief majority Because the the facts Given sentence. crease presumption of vindictive on ness, basis case, incorrect Board were even if petitioner’s to reach not need it did judgment, the in its assumptions erred action violated argument that the Board’s alleged explain how these majority does not Jersey, 530 New Apprendi v. rule announced likelihood shortcomings a reasonable show 147 L.Ed.2d U.S. product of higher that the deny relief (2000). I would Because Moreover, because vindictiveness. actual sentencing, I would of vindictive on the claim consid- when majority made assertions these Apprendi claim reach, reject, Petitioner's but the Board overcome ering whether “Ap- concluded that since we have because vindictiveness, they need not presumption of retroactively to cases on prendi does view, because, my further be addressed United States review.” initial collateral respondent to the never shifted burden Sanchez-Cervantes, any presumption. rebut Cir.2002).

Case Details

Case Name: George W. Nulph v. Dave Cook, Director of the Department of Corrections Hardy Myers, Attorney General of the State of Oregon

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 26, 2003

Citation: 333 F.3d 1052

Docket Number: 01-35556

Court Abbreviation: 9th Cir.