                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ROOSEVELT BRIAN MOORE ,              No. 11-56846
      Petitioner-Appellant,
                                       D.C. No.
            v.                      2:11-cv-04256-
                                      JAK-FFM
M. D. BITER , Warden,
       Respondent-Appellee.             OPINION


      Appeal from the United States District Court
         for the Central District of California
      John A. Kronstadt, District Judge, Presiding

                Argued and Submitted
        February 6, 2013—Pasadena, California

                 Filed August 7, 2013

   Before: Harry Pregerson, William A. Fletcher, and
        Jacqueline H. Nguyen, Circuit Judges.

              Opinion by Judge Pregerson
2                        MOORE V . BITER

                           SUMMARY*


                          Habeas Corpus

   The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a 254-
year sentence for a juvenile nonhomicide offender.

    The panel first held that Graham v. Florida, 130 S. Ct.
2011 (2010), which prohibits the punishment of life without
possibility of parole for juvenile nonhomicide offenders like
petitioner, applies retroactively on collateral review. The
panel then held that the state court’s failure to apply Graham
to petitioner’s sentence was contrary to clearly established
federal law.


                            COUNSEL

Patricia A. Young (argued), Deputy Federal Public Defender;
Sean K. Kennedy, Federal Public Defender, Los Angeles,
California, for Petitioner-Appellant.

Mary Sanchez (argued), Deputy Attorney General; Kenneth
C. Byrne, Supervising Deputy Attorney General; Lance E.
Winters, Senior Assistant Attorney General; Dane R. Gillette,
Chief Assistant Attorney General; Kamala D. Harris,
Attorney General of California, Los Angeles, California, for
Respondent-Appellee.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      MOORE V . BITER                       3

                         OPINION

PREGERSON, Circuit Judge:

    In Graham v. Florida, 130 S. Ct. 2011 (2010), the United
States Supreme Court clearly established that the Eighth
Amendment prohibits the punishment of life without parole
for juvenile nonhomicide offenders. As compared to adults,
juvenile nonhomicide offenders are still developing their
characters, have diminished moral culpability, and possess
greater capacity to change. Id. at 2026–27. The Constitution
requires the State to give juvenile nonhomicide offenders
“some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 2030.

    In 1991, Roosevelt Brian Moore received a term-of-years
sentence of 254 years and four months for nonhomicide
crimes he committed when he was sixteen years old. The
earliest Moore could be considered for parole is after serving
127 years and two months. Because Moore would have to
live to be 144 years old to be eligible for parole, his chance
for parole is zero. Moore filed state habeas petitions and a
federal habeas petition challenging his sentence under
Graham. All petitions were denied.

    We have jurisdiction over Moore’s appeal pursuant to
28 U.S.C. §§ 1291 and 2253. The facts in Graham are
materially indistinguishable from the facts in Moore’s case.
Accordingly, the state court’s failure to apply Graham was
“contrary to . . . clearly established Federal law, as
determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1). We thus REVERSE the district
court’s denial of Moore’s habeas petition and REMAND to
4                     MOORE V . BITER

the district court with instructions to grant Moore’s habeas
petition.

    FACTUAL AND PROCEDURAL BACKGROUND

    A jury convicted Moore of sexually victimizing four
separate women on four occasions during a five-week period
in February and March 1991. At the time the crimes were
committed, Moore was sixteen years old. Moore did not have
a prior criminal record, but was tried and sentenced as an
adult.

    A jury found Moore guilty of a total of twenty-four
counts: nine counts of forcible rape, seven counts of forcible
oral copulation, two counts of attempted second degree
robbery, two counts of second degree robbery, forcible
sodomy, kidnaping with the specific intent to commit a felony
sex offense, genital penetration by a foreign object, and the
unlawful driving or taking of a vehicle. The jury found that
Moore also used a firearm while committing his crimes.

    Before the sentencing hearing, the California Department
of the Youth Authority submitted a psychological report to
the trial court regarding Moore’s capacity to change. One
staff psychologist, Dr. Mahoney, found that “there is no
reason to believe that [Moore] would not continue to be
dangerous well into the future.” The rest of the clinical staff,
however, concluded that: “[Moore] does not appear to be
fixed in his antisocial value system as he displays a sense of
motivation to change in overcoming his delinquent lifestyle.”
A casework specialist found that Moore was “severely
depressed with a history of impulsivity and some immaturity”
and has “expressed a willingness to change.” The clinical
                      MOORE V . BITER                        5

team’s “impression [was that Moore] has the mental and
physical capacity to benefit from rehabilitation.”

     At the sentencing hearing, the trial court agreed with the
“minority opinion of [Dr.] Mahoney.” The trial court
sentenced Moore to consecutive sentences totaling 254 years
and four months. Moore is not eligible for parole until he
serves half of his sentence, 127 years and two months. Cal.
Penal Code § 2933(a) (1991). Thus, Moore will spend his
life in prison because he would have to live to be 144 years
old to be eligible for parole.

         POST-CONVICTION PROCEEDINGS

    Moore appealed his sentence to the California Court of
Appeal, which affirmed his sentence in an unpublished
disposition on May 27, 1993. Moore did not appeal to the
California Supreme Court.

    The United States Supreme Court decided Graham v.
Florida on May 17, 2010, and modified its opinion on July 6,
2010. 130 S. Ct. 2011 (2010). Moore filed pro se state
habeas petitions in the Los Angeles County Superior Court,
the California Court of Appeal, and the California Supreme
Court, arguing that his sentence was unconstitutional under
Graham. The Los Angeles County Superior Court summarily
denied Moore’s petition. The California Court of Appeal
held that Graham does not apply to Moore’s sentence. The
California Supreme Court summarily denied review.

    On May 10, 2011, Moore filed a timely federal habeas
petition. The district court summarily dismissed Moore’s
federal petition on the ground that Moore had not exhausted
6                      MOORE V . BITER

his available state remedies. Judgment was entered,
dismissing Moore’s petition without prejudice.

    On July 14, 2011, Moore filed pro se an application to
clarify the district court’s order and judgment. He provided
documents that demonstrated he had exhausted his state
remedies. The magistrate judge treated Moore’s application
as a motion to alter or amend judgment under Rule 59(e) or
a motion for relief from judgment under Rule 60(b)(6). The
magistrate judge denied the motion because he believed that
Graham was not retroactive on collateral review. Over
Moore’s objection, the district court adopted the magistrate
judge’s report and recommendation in its entirety.

    Moore timely filed a notice of appeal and applied for a
certificate of appealability. Moore’s appeal involves two
certified issues: (1) whether Graham applies retroactively on
collateral review; and (2) whether the state court’s failure to
apply Graham to Moore’s sentence was contrary to clearly
established federal law.

                STANDARD OF REVIEW

    We review a district court’s denial of a petition for writ of
habeas corpus de novo. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc). Because Moore filed his
federal habeas petition after 1996, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) applies to his
petition. Milke v. Ryan, 711 F.3d 998, 1003 (9th Cir. 2013).
Under AEDPA, a federal court cannot grant habeas relief
based on a claim that was adjudicated on the merits in state
court proceedings unless the state court’s decision was: (1)
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
                       MOORE V . BITER                         7

Supreme Court of the United States”; or (2) “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).

    This appeal concerns the first basis for habeas relief.
Under § 2254(d)(1), a petitioner may meet his burden in one
of two ways. “A state-court decision is contrary to [the
Supreme Court’s] clearly established precedents if it applies
a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases, or if it confronts a set of facts that is
materially indistinguishable from a decision of [the Supreme
Court] but reaches a different result.” Brown v. Payton,
544 U.S. 133, 141 (2005). “A state-court decision involves
an unreasonable application of [the Supreme Court’s] clearly
established precedents if the state court applies [the Court’s]
precedents to the facts in an objectively unreasonable
manner.” Id. Accordingly, although AEDPA “require[s]
federal courts to treat the decisions of the state court with
deference[,] . . . when state courts interpret federal law
incorrectly, or fail to apply it all, a federal court may
intervene.” Milke, 711 F.3d at 1003.

                        DISCUSSION

A. Graham’s Prohibition on Life Without Parole for
   Juvenile Nonhomicide Offenders

    In Graham, the Supreme Court held that the Constitution
prohibits States from sentencing “a juvenile offender . . . to
life in prison without parole for a nonhomicide crime.”
Graham v. Florida, 130 S. Ct. 2011, 2017–18 (2010). Such
a sentence violates the Eighth Amendment’s prohibition
against cruel and unusual punishment:
8                    MOORE V . BITER

       Terrance Graham’s sentence guarantees he
       will die in prison without any meaningful
       opportunity to obtain release, no matter what
       he might do to demonstrate that the bad acts
       he committed as a teenager are not
       representative of his true character, even if he
       spends the next half century attempting to
       atone for his crimes and learn from his
       mistakes. The State has denied him any
       chance to later demonstrate that he is fit to
       rejoin society based solely on a nonhomicide
       crime that he committed while he was a child
       in the eyes of the law. This the Eighth
       Amendment does not permit.

Id. at 2033.

     Graham’s sentence of life without possibility of parole
was the culmination of a series of crimes that Graham
committed between the ages of sixteen to seventeen. In 2003,
Graham pleaded guilty to armed burglary and attempted
armed robbery. Id. at 2018. Under the plea agreement, the
trial court withheld adjudication of guilt and sentenced
Graham to probation. Id. While on probation, Graham
allegedly robbed a home, held a victim at gunpoint, attempted
a second robbery, and led police on a high speed chase. Id.
at 2018–19.

    The trial court revoked Graham’s probation, found
Graham guilty of the 2003 charges, and sentenced him to the
maximum sentence on each charge: life imprisonment for the
armed burglary and fifteen years for the attempted armed
robbery. Id. at 2019–20. In effect, Graham had a sentence of
life without possibility of parole. Id. at 2020 (“Because
                      MOORE V . BITER                       9

Florida has abolished its parole system, . . . a life sentence
[gave Graham] no possibility of release unless he is granted
executive clemency.” (citing Fla. Stat. § 921.002(1)(e)
(2003)).

    Graham broke new ground because the Supreme Court
applied a categorical classification to a term-of-years
sentence for the first time. Id. at 2022. The Supreme Court
uses two classifications to determine whether a sentence is so
disproportional to the crime that it amounts to cruel and
unusual punishment. Id. at 2021. The first classification
“involves challenges to the length of term-of-years
sentences,” where the court considers “all of the
circumstances of the case to determine whether the sentence
is unconstitutionally excessive.”         Id.   The second
classification “use[s] categorical rules to define Eighth
Amendment standards.” Id. at 2022. All prior cases under
the categorical approach involved the death penalty. Id. For
example, the Court prohibited capital punishment: (1) for
nonhomicide crimes against individuals, e.g., Kennedy v.
Louisiana, 554 U.S. 407, 421 (2008); (2) for defendants who
committed their crimes before the age of eighteen, Roper v.
Simmons, 543 U.S. 551, 575 (2005); and (3) for defendants
with low range intellectual functioning, Atkins v. Virginia,
536 U.S. 304, 321 (2002).

    The Court explained that Graham “involves an issue the
Court has not considered previously: a categorical challenge
to a term-of-years sentence.” Graham, 130 S. Ct. at 2022
(emphasis added). The Court rejected using the first
classification which requires a case-by-case inquiry because
Graham’s case “implicates a particular type of sentence as it
applies to an entire class of offenders who have committed a
range of crimes.” Id. at 2022–23. Thus, the Court held “the
10                     MOORE V . BITER

appropriate analysis” is the second classification that uses
“categorical rules.” Id.

    Under the categorical approach, the Court first determined
that a national consensus has developed against sentencing
juvenile nonhomicide offenders to life without parole. Id. at
2023–26. Although thirty-seven States, the District of
Columbia, and Federal law permitted sentences of life
without parole for juvenile nonhomicide offenders, the actual
sentencing practice was rare. Id. at 2023.

     The Court then determined that in its “independent
judgment” life without parole for nonhomicide juvenile
offenders constitutes cruel and unusual punishment. Id. at
2026–30. The Court premised its conclusion on four primary
considerations.      First, the Court considered juvenile
offenders’ distinctive characteristics and traits. The Court
cited to the extensive psychological data that it relied on in
Roper, 543 U.S. at 569–75, which “established that because
juveniles have lessened culpability they are less deserving of
the most severe punishments.” Graham, 130 S. Ct. at 2026.
It reasoned that since Roper, developments in psychology and
brain science continue to reveal “fundamental differences
between juvenile and adult minds.” Id.

    Specifically, the Court emphasized that juveniles lack the
maturity and sense of responsibility possessed by adults, are
“‘more vulnerable or susceptible to negative influences and
outside pressures,’” are more capable of change than adults,
and are still developing their moral characters. Id. at 2026–27
(quoting Roper, 543 U.S. at 569). Given these traits, the
Court concluded that “‘[f]rom a moral standpoint it would be
misguided to equate the failings of a minor with those of an
adult, for a greater possibility exists that a minor’s character
                       MOORE V . BITER                       11

deficiencies will be reformed.’” Id. (quoting Roper, 543 U.S.
at 570). Further, these characteristics mean juveniles cannot
reliably be sorted into those who are capable of reform and
those who are not. Id. at 2026. “‘[I]t is difficult even for
expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.’” Id. (quoting Roper,
543 U.S. at 573).

    Second, the Court considered the nature of nonhomicide
offenses. The Court determined that nonhomicide crimes
“cannot be compared to murder in their severity and
irrevocability.” Id. at 2027 (internal quotation marks and
citation omitted). The Court concluded that compared to an
adult murderer, a juvenile nonhomicide offender “has a twice
diminished moral culpability.” Id.

     Third, the Court considered the consequences of life in
prison without parole. The Court emphasized that it “has
recognized the severity of sentences that deny convicts the
possibility of parole.” Id. The harshness of the punishment,
it reasoned, is exacerbated for juveniles because a “juvenile
offender will on average serve more years and a greater
percentage of his life in prison than an adult offender.” Id. at
2028. For a juvenile offender, life without parole “means
denial of hope” because “good behavior and character
improvement are immaterial.” Id. at 2027 (quoting
Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944 (1989)).

    Finally, the Court concluded that penological goals do not
justify life without parole for juvenile nonhomicide offenders
because: (1) retribution is not served by imposing life without
parole on juveniles; (2) juveniles are less susceptible to
12                     MOORE V . BITER

deterrence; (3) incapacitation for life denies juveniles a
“chance to demonstrate growth and maturity”; and (4)
rehabilitation cannot be served without parole because it
denies juveniles “the right to reenter the community.” Id. at
2028–30.

    The Court thus held that the Eighth Amendment requires
that States “give defendants like Graham some meaningful
opportunity to obtain release based on demonstrated maturity
and rehabilitation.” Id. at 2030. In other words, the Eighth
Amendment “forbid[s] States from making the judgment at
the outset that those offenders never will be fit to reenter
society.” Id.

B. Graham Applies Retroactively on Collateral Review.

   Both parties agree that Graham established a new rule of
law that is retroactively applicable on collateral review under
Teague v. Lane, 489 U.S. 288, 310 (1989).

    When the Supreme Court establishes a new rule, “that
rule applies to all criminal cases still pending on direct
review” and applies “to convictions that are already final . . .
only in limited circumstances.” Schriro v. Summerlin,
542 U.S. 348, 351 (2004). Under Teague, a new rule applies
retroactively where it places “certain kinds of primary,
private individual conduct beyond the power of the criminal
law-making authority to proscribe.” 489 U.S. at 311 (internal
quotation marks and citation omitted). The Supreme Court
has explained that this exception “should be understood to
cover . . . rules prohibiting a certain category of punishment
for a class of defendants because of their status or offense.”
Penry v. Lynaugh, 492 U.S. 302, 330 (1989), abrogated on
other grounds by Atkins, 536 U.S. 304.
                            MOORE V . BITER                                13

    Graham meets this test. It applies to a class of
defendants, juvenile nonhomicide offenders, defined by: (1)
the status of the defendants (juveniles); and (2) the type of
offense (nonhomicide crimes). Graham prohibits the
punishment of life without parole to this class of defendants.
Thus, we hold that Graham is retroactive under Teague. In
so holding, we join the Fifth Circuit, which previously held
that “Graham has been made retroactive to cases on collateral
review by the Supreme Court.” In re Sparks, 657 F.3d 258,
260 (5th Cir. 2011) (internal quotation marks omitted).1

     We therefore conclude that although Moore’s conviction
became final in 1993,2 he may challenge his sentence under
Graham because Graham established a new rule of law that
is retroactive on collateral review.

C. The State Court’s Decision Was Contrary to Clearly
   Established Federal Law.

   “In examining the reasonableness of the state courts’
decisions, we look to ‘the last explained state-court judgment’

     1
    The Eleventh Circuit has also suggested that Graham is retroactive
under Teague. See In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013)
(holding that juvenile nonhomicide offender “made a prima facie showing
that Graham has been made retroactively applicable by the Supreme Court
to cases on collateral review”); Loggins v. Thomas, 654 F.3d 1204, 1221
(11th Cir. 2011) (noting that Graham fits the Teague exception of new
rules that prohibit a category of punishment for defendants because of
their status or offense).

 2
    “State convictions are final for purposes of retroactivity analysis when
the availability of direct appeal to the state courts has been exhausted and
the time for filing a petition for a writ of certiorari has elapsed or a timely
filed petition has been finally denied.” Beard v. Banks, 542 U.S. 406, 411
(2004) (internal quotation marks and citations omitted).
14                    MOORE V . BITER

on [the] claim.” Milke, 711 F.3d at 1005 (quoting Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991)); see, e.g., Avila v.
Galaza, 297 F.3d 911, 918 n.6 (9th Cir. 2002) (examining a
referee’s report denying habeas petition because it was the
last reasoned decision of the state court). In this case, the
state’s last reasoned decision is the California Court of
Appeal’s decision denying Moore’s state habeas petition.

    The Supreme Court was unequivocal that for juvenile
nonhomicide offenders, Graham established a “flat ban on
life without parole.” Miller v. Alabama, 132 S. Ct. 2455,
2465 (2012). Graham is controlling Supreme Court
precedent that existed at the time of the Court of Appeal’s
decision. “[A] state court decision that fails to apply the
correct controlling authority is ‘contrary to . . . established
Federal law’ . . . .” Milke, 711 F.3d at 1003 (quoting Benn v.
Lambert, 283 F.3d 1040, 1051 (9th Cir. 2002)). The
California Court of Appeal incorrectly held that Graham
“does not apply” to Moore’s case because: (1) Moore had a
“term-of-years sentence” for multiple crimes; and (2)
Moore’s sentence was for “violent rapes and forced
copulation and sodomy perpetrated with a firearm.” We
address each below.

     1. Moore’s sentence is materially indistinguishable
        from the sentence in Graham.

    The California Court of Appeal’s failure to apply Graham
on the ground that Moore has a term-of-years sentence for
multiple crimes was contrary to Graham because “there are
no constitutionally significant distinguishable facts” between
Graham’s and Moore’s sentences. Cudjo v. Ayers, 698 F.3d
752, 763 (9th Cir. 2012).
                      MOORE V . BITER                        15

    In Graham, the Supreme Court held that life without
parole was unconstitutional for a juvenile nonhomicide
offender because that sentence means that a juvenile is
incapable of returning to society:

       Life in prison without the possibility of parole
       gives no chance for fulfillment outside prison
       walls, no chance for reconciliation with
       society, no hope. Maturity can lead to that
       considered reflection which is the foundation
       for remorse, renewal, and rehabilitation. A
       young person who knows that he or she has
       no chance to leave prison before life’s end has
       little incentive to become a responsible
       individual.

Graham, 130 S. Ct. at 2032.

    Moore’s sentence of 254 years is materially
indistinguishable from a life sentence without parole because
Moore will not be eligible for parole within his lifetime.
Moore’s sentence determines “at the outset that [Moore]
never will be fit to reenter society.” Id. at 2030. His sentence
results in the same consequences as Graham’s sentence.
Moore must live the remainder of his life in prison, knowing
that he is guaranteed to die in prison regardless of his
remorse, reflection, or growth.

    Contrary to the California Court of Appeal’s analysis,
Graham’s focus was not on the label of a “life
sentence”—but rather on the difference between life in prison
with, or without, possibility of parole. The Supreme Court
explained that in the past, it had distinguished between a life
sentence where a defendant “could hardly ignore the
16                        MOORE V . BITER

possibility that he will not actually be imprisoned for the rest
of his life” and a life sentence that “did not give the defendant
the possibility of parole.” Id. at 2027–28 (internal quotation
marks and citations omitted).             The Supreme Court
emphasized that “[l]ife without parole is an especially harsh
punishment for a juvenile.” Id. at 2028. The “reality cannot
be ignored” that “[a] 16-year-old and a 75-year-old each
sentenced to life without parole receive the same punishment
in name only.” Id.

    Graham recognized that “‘[i]n some cases . . . there will
be negligible difference between life without parole and other
sentences of imprisonment.” Id. (quoting Harmelin v.
Michigan, 501 U.S. 957, 996 (1991)). Here, we cannot
ignore the reality that a seventeen year-old sentenced to life
without parole and a seventeen year-old sentenced to 254
years with no possibility of parole, have effectively received
the same sentence. Both sentences deny the juvenile the
chance to return to society.3 Graham thus applies to both
sentences. See Panetti v. Quarterman, 551 U.S. 930, 953
(2007) (“AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before a legal
rule must be applied.” (internal quotation marks and citation
omitted)).




  3
    Moreover, Graham involved a de facto life sentence without parole.
Graham received a sentence of “life imprisonment.” Id. at 2020. Because
Florida had eliminated its parole system by statute, this amounted to a de
facto life sentence without parole. Id. Graham’s sentence was also the
result of repeated criminal activity, not a single crime. It was only after
Graham “violated his probation by committing a home invasion robbery,
by possessing a firearm, and by associating with persons engaged in
criminal activity” that he received a life sentence. Id. at 2019.
                       MOORE V . BITER                         17

    2. Moore’s nonhomicide crimes are materially
       indistinguishable from the nonhomicide crimes in
       Graham.

    The California Court of Appeal incorrectly concluded that
Graham is inapplicable because Moore committed violent
rapes, forced copulation, and sodomy perpetrated with a
firearm. Importantly, in crafting its categorical bar, Graham
drew only one line that was crime-specific: it distinguished
between homicide and nonhomicide crimes. The Supreme
Court explained that the “line between homicide and other
serious violent offenses” is justified because “[l]ife is over for
the victim of the murderer, but for the victim of even a very
serious nonhomicide crime, life . . . is not over and normally
is not beyond repair.” Graham, 130 S. Ct. at 2027 (internal
quotation marks and citations omitted). The Court refused to
treat serious nonhomicide crimes such as rape the same as
homicide. It emphasized that “[a]lthough an offense like
robbery or rape is ‘a serious crime deserving serious
punishment,’ those crimes differ from homicide crimes in a
moral sense.” Id. (quoting Enmund v. Florida, 458 U.S. 782,
797 (1982)).

    Further, Graham expressly rejected a case-by-case
approach that “would allow courts to account for factual
differences between cases and to impose life without parole
sentences for particularly heinous crimes.” Id. at 2031.
Instead, the Supreme Court chose a categorical approach, i.e.,
a flat-out rule that “gives all juvenile nonhomicide offenders
a chance to demonstrate maturity and reform.” Id. at 2032
(emphasis added).

   That Graham’s categorical bar did not contain an
exemption for violent sexual nonhomicide crimes is also
18                         MOORE V . BITER

evident from the sentencing statutes Graham struck down
as unconstitutional as applied to juveniles. See Graham,
130 S. Ct. at Appendix I. Those statutes include Delaware’s
criminal statute that required mandatory life without
possibility of parole for rape against three or more separate
victims, and criminal statutes in the District of Columbia,
Georgia, Michigan, Missouri, and North Dakota, and under
Federal law that permitted life without possibility of parole
for rapes under circumstances similar to Moore’s crimes.4

   Under Graham, juvenile nonhomicide offenders may not
be sentenced to life without parole regardless of the
underlying nonhomicide crime.

D. Moore’s Graham Claim on the Merits

   Having established that the California Court of Appeal’s
decision was contrary to clearly established federal law, we



 4
   See Del. Code Ann., Tit. 11 § 773(c)(3) (rape of three or more separate
victims shall be sentenced to life imprisonment without parole); D.C.
Code § 22-3020(a)(5) (sex offenses against two or more victims in the
same proceedings may result in life imprisonment without possibility of
release); Ga. Code § 16-6-1(b) (rape punishable by imprisonment of life
without parole); Mich. Comp. Laws Ann. § 750.520b(1)(c)(e), (2)(a) (rape
while armed with a weapon or involving commission of another felony is
sexual conduct in the first degree which may be punishable by
imprisonment for life); M o. Rev. Stat. § 558.018(5)(3), (6) (forcible rape
against more than one victim results in life imprisonment with
discretionary parole); N.D. Cent. Code Ann. §§ 12.1-20-03(1)(a), 12.1-32-
01(1) (rape compelled by force or threat of serious bodily injury may
result in life imprisonment without parole); 18 U.S.C.A. § 2241(a)(1),
(a)(2) (aggravated sexual abuse which includes causing person to engage
in sexual act by threat of serious bodily injury results in imprisonment for
“any term of years or life”).
                           MOORE V . BITER                               19

now make an independent evaluation of Moore’s
constitutional claim.5 Milke, 711 F.3d at 1012–13.

    Graham prohibits the State from “[deciding] at the outset
that [a juvenile] never will be fit to reenter society.” Graham,
130 S. Ct. at 2030. Graham’s categorical ban ensures that a
juvenile nonhomicide offender will not receive life without
parole based on the “subjective judgment by a judge or jury
that the offender is irredeemably depraved,” which fails to
take into account all of the psychological limitations and
vulnerabilities of juveniles. Id. at 2027–30, 2031.

    Moore was sentenced to 254 years during a single
sentencing proceeding in 1992. At sentencing, the trial judge
expressly agreed with one staff psychologist who, contrary to
the rest of the clinical psychological team, concluded that
Moore lacked the capacity to change.

   Moore’s sentence guarantees that he will die in prison
because the trial judge determined at the outset that Moore




  5
     In August 2012, after Moore filed his federal habeas petition, the
California Supreme Court decided People v. Caballero, 55 Cal. 4th 262
(2012). In Caballero, the California Supreme Court held that “a 110-year-
to-life sentence imposed on a juvenile convicted of nonhomicide offenses
contravenes Graham’s mandate against cruel and unusual punishment.”
Id. at 265. The State argues that we should send Moore back to state court
to take advantage of Caballero. The Supreme Court has instructed,
however, that when a habeas petitioner has exhausted his state remedies,
he should not be required to return to state court in light of an intervening
state court decision that would favorably resolve the petitioner’s claim.
Roberts v. LaVallee, 389 U.S. 40, 42–43 (1967); Francisco v. Gathright,
419 U.S. 59, 62–64 (1974); see also Briggs v. Raines, 652 F.2d 862,
864–65 (9th Cir. 1981).
20                        MOORE V . BITER

could not rehabilitate.6 Moore has now spent over half
of his life in prison. Still, he has no hope of reentering
society.    His past and future efforts to reform are
immaterial. Moore’s sentence is irreconcilable with
Graham’s mandate that a juvenile nonhomicide offender
must be provided “some meaningful opportunity” to reenter
society. Graham, 130 S. Ct. at 2030. Thus, Moore’s
sentence is unconstitutional under Graham.

                          CONCLUSION

    For the foregoing reasons, we REVERSE the district
court’s denial of Moore’s habeas petition on the grounds that:
(1) Graham is retroactive on collateral review; and (2) the
state court’s decision was contrary to the clearly established
Federal law set forth in Graham. We REMAND with
instructions to grant Moore’s petition.

 6
   Moore’s sentence is significantly different than the sentence addressed
by the Sixth Circuit in Bunch v. Smith, 685 F.3d 546, 547 (6th Cir. 2012),
cert. denied, Bunch v. Bobby, 133 S. Ct. 1996 (2013). In Bunch, the Sixth
Circuit held that the state court’s upholding of an 89-year aggregate
sentence that provided for some possibility of parole for a juvenile
nonhomicide offender was not contrary to clearly established federal law
assuming, without deciding, that law included Graham. Id. at 550, 551
n.1. The court reasoned that Graham “did not clearly establish that
consecutive, fixed-term sentences for juveniles who commit multiple
nonhomicide offenses are unconstitutional when they amount to the
practical equivalent of life without parole.” Id. at 550. W e acknowledge
that courts have inconsistently applied Graham to lengthy term-of-years
sentences that provide some possibility of parole, but such a sentence is
not before us. Compare Floyd v. State, 87 So. 3d 45, 45–46 (Fla. Dist. Ct.
App. 1st Dist. 2012) (holding a combined 80-year sentence for
nonhomicide crimes was unconstitutional under Graham), with Henry v.
State, 82 So. 3d 1084, 1085–86, 1089 (Fla. Dist. Ct. App. 5th Dist. 2012)
(holding Graham did not apply to 90-year total sentence, where defendant
would be required to serve “76.5 years”).
