                 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.                ORDER


                 Filed February 12, 2014

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

                        Order;
            Dissent by Judge O’Scannlain
2                        MOORE V. BITER

                           SUMMARY*

                          Habeas Corpus

    The panel denied a petition for panel rehearing, denied a
petition for rehearing en banc on behalf of the court, and
ordered that no further petitions shall be entertained in a case
in which 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.

    Judge O’Scannlain dissented from the denial of rehearing
en banc, joined by Judges Tallman, Bybee, Callahan, Bea, M.
Smith, and Ikuta. Judge O’Scannlain wrote that because the
panel’s opinion—which held that Graham v. Florida, 130 S.
Ct. 2011 (2010), applies retroactively on collateral review and
that the state court’s failure to apply Graham to petitioner’s
sentence was contrary to clearly established federal
law—defies the Anti-Terrorism and Effective Death Penalty
Act, creates a circuit split, and threatens frequent and
unjustified intrusions into state sovereignty.




  *
    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

                               ORDER

   The panel has voted to deny the petitions for rehearing
and rehearing en banc.

    The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.

  The petitions for rehearing and rehearing en banc are
DENIED. No further petitions will be entertained.

   Judge O’Scannlain’s dissent from denial of rehearing en
banc is filed concurrently with this Order.



O’SCANNLAIN, Circuit Judge, joined by TALLMAN,
BYBEE, CALLAHAN, BEA, M. SMITH, and IKUTA,
Circuit Judges, dissenting from the denial of rehearing en
banc:

    Our Court defies AEDPA once again, this time by failing
to distinguish one “life without parole” sentence from
multiple “term-of-years” sentences. A panel of this Court
holds that Graham v. Florida, 560 U.S. 48 (2010), invalidates
the latter, ignoring the contrary holding of the Sixth Circuit,1



  1
   Compare Moore v. Biter, 725 F.3d 1184, 1187 (9th Cir. 2013), with
Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012), cert. denied, Bunch v.
Bobby, 133 S. Ct. 1996 (2013).
4                      MOORE V. BITER

disregarding the views of state courts across the country, and
flouting Graham’s text and reasoning.

    I respectfully dissent from our decision not to rehear this
case en banc.

                               I

    Roosevelt Moore appeals the district court’s denial of his
petition for habeas relief under 28 U.S.C. § 2254. Moore
committed a series of forcible rapes and other offenses at the
age of sixteen and was tried as an adult. In 1991, a jury
convicted him of twenty-four crimes, including nine counts
of forcible rape, seven counts of forcible oral copulation, and
two counts of robbery, and also found that he used a firearm
for most of the offenses. He was sentenced to fixed terms of
imprisonment for each offense with enhancements for using
a firearm, to run consecutively. Although none of the
individual sentences exceeded eight years, Moore was
sentenced to 254 years in prison, cumulatively. He cannot be
considered for parole until he serves at least 127 years and
two months.

     Nearly two decades later, Moore filed state habeas
petitions, pro se, arguing that his sentence is unconstitutional
in light of Graham. The Los Angeles County Superior Court
summarily denied his petition. The California Court of
Appeal held that Graham does not apply to Moore’s sentence,
and the California Supreme Court summarily denied review.

   Our panel, however, granted habeas relief, holding that
Graham applies retroactively to Moore’s sentence and that
the California state courts’ decisions were contrary to
                       MOORE V. BITER                          5

Graham because Moore’s case is materially indistinguishable
from Graham’s. Moore, 725 F.3d at 1186.

                               II

    Under AEDPA, federal courts may not grant habeas relief
on a claim that was adjudicated on the merits in state court,
unless the state court’s decision was: (1) “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States;” or (2) “resulted in a decision that was 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). A state court decision is “contrary to” Supreme
Court precedent “if it applies a rule that contradicts the
governing law set forth in [the Court’s] cases or if it confronts
a set of facts that are materially indistinguishable from a
decision of [the Supreme] Court and nevertheless arrives at
a result different from [the Court’s] precedent.” Early v.
Packer, 537 U.S. 3, 8 (2002) (internal quotation marks
omitted).

    A state court “must apply legal principles established by
a Supreme Court decision when the case falls squarely within
those principles, but not in cases where there is a structural
difference between the prior precedent and the case at issue,
or when the prior precedent requires tailoring or modification
to apply to the new situation.” Moses v. Payne, 555 F.3d 742,
753 (9th Cir. 2009) (quotation marks omitted). Unless the
Supreme Court has “squarely address[ed]” an issue or
established a principle that “clearly extend[s] to a new
context,” there is no “clearly established Supreme Court
precedent addressing the issue.” Id. at 754 (internal quotation
marks omitted; second alteration in original).
6                      MOORE V. BITER

    The Court has consistently warned lower courts, and this
court in particular, to avoid defining “clearly established” law
too broadly. See, e.g., Parker v. Matthews, 132 S. Ct. 2148
(2012); Howes v. Fields, 132 S. Ct. 1181 (2012); Wright v.
Van Patten, 552 U.S. 120 (2008); Carey v. Musladin,
549 U.S. 70 (2006).

                               A

    In Graham, the Supreme Court announced that the
Constitution does not permit “a juvenile offender to be
sentenced to life in prison without parole for a nonhomicide
crime.” 560 U.S. at 52–53. The Court’s “categorical rule”
was meant to give “juvenile nonhomicide offenders a chance
to demonstrate maturity and reform.” Id. at 79.

    To support its conclusion that the state court’s decision
was contrary to Graham, the panel reasoned that “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, 725 F.3d at
1191. That Moore’s sentence was not likely to be completed
during his lifetime, even if not labeled a “life sentence,” did
not distinguish it from Graham.             Id. at 1191–92.
Furthermore, that Moore committed serious crimes did not
distinguish his case from Graham, because the Supreme
Court “expressly rejected a case-by-case approach” that
would take account of factual differences between crimes. Id.
at 1192–93.

    And there the panel’s opinion stops, failing to confront
the most meaningful distinction between Moore’s case and
Graham: Moore’s term of imprisonment is composed of over
two dozen separate sentences, none longer than eight years;
                      MOORE V. BITER                        7

Graham’s is one sentence, “life without parole.” Because the
Supreme Court explicitly stated that Graham concerned “only
those juvenile offenders sentenced to life without parole
solely for a nonhomicide offense,” 560 U.S. at 62, it “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,” Bunch, 685 F.3d at 550.

    If that express limitation on Graham’s holding were not
enough, Graham’s reasoning makes clear that the Supreme
Court did not squarely address aggregate term-of-years
sentences. Beginning with “objective indicia of national
consensus,” the Court noted that there were “123 juvenile
nonhomicide offenders serving life without parole sentences,”
and “only 11 jurisdictions nationwide in fact impose life
without parole sentences on juvenile nonhomicide
offenders—and most of those do so quite rarely.” Graham,
560 U.S. at 62–64. Thus, “[t]he sentencing practice now
under consideration is exceedingly rare.” Id. at 67.

     But, to reach that conclusion, the Court did not consider
the prevalence of sentences like Moore’s—lengthy term-of-
years sentences adding up to de facto life imprisonment. See
id. at 113 n.11 (Thomas, J., dissenting) (“[T]he Court counts
only those juveniles sentenced to life without parole and
excludes from its analysis all juveniles sentenced to lengthy
term-of-years sentences (e.g., 70 or 80 years’
imprisonment).”). Nor was Moore counted among those 123
juvenile nonhomicide offenders. See P. Annino et al.,
Juvenile Life without Parole for Non–Homicide Offenses:
Florida Compared to Nation 14–15 (Sept. 14, 2009) (listing
four such offenders incarcerated in California for crimes of
kidnapping and/or robbery).
8                         MOORE V. BITER

    If the Court did not consider aggregate term-of-years
sentences adding up de facto to life without parole, it cannot
have squarely addressed their constitutionality. See Graham,
560 U.S. at 124 (Alito, J., dissenting) (“Nothing in the
Court’s opinion affects the imposition of a sentence to a term
of years without the possibility of parole.”). As our sister
circuit held: The Supreme Court “did not analyze sentencing
laws or actual sentencing practices regarding consecutive,
fixed-term sentences for juvenile nonhomicide offenders.
This demonstrates that the Court did not even consider the
constitutionality of such sentences, let alone clearly establish
that they can violate the Eighth Amendment’s prohibition on
cruel and unusual punishments.” Bunch, 685 F.3d at 552.2

    If the Court has not squarely addressed the
constitutionality of aggregate term-of-years sentences, the
state court’s determination that Moore’s sentence is not
unconstitutional cannot be contrary to clearly established
federal law.

                                   B

    Unsurprisingly, in the absence of an express holding
regarding such sentences, “courts across the country are split
over whether Graham bars a court from sentencing a juvenile
nonhomicide offender to consecutive, fixed terms resulting in
an aggregate sentence that exceeds the defendant’s life
expectancy.” Id. Some have held that Graham prohibits


    2
    The Court’s analysis of objective indicia does not dictate its Eighth
Amendment jurisprudence, of course. See Graham, 560 U.S. at 67. But
we should not hold, and we should certainly not force state courts to
assume, that the Court’s “clearly established” holdings sweep well beyond
such analysis.
                           MOORE V. BITER                                 9

aggregate term-of-years sentences that amount to the
functional equivalent of life without parole. See, e.g., People
v. Caballero, 282 P.3d 291, 294–95 (Cal. 2012); People v.
Rainer, No. 10CA2414, 2013 WL 1490107 (Colo. Ct. App.
Apr. 11, 2013); State v. Null, 836 N.W.2d 41, 73 (Iowa
2013).3 More have held that Graham does not prohibit
aggregate term-of-years sentences such as Moore’s. See, e.g.,
Bunch, 685 F.3d at 552–53; State v. Kasic, 265 P.3d 410,
415–16 (Ariz. Ct. App. 2011); Walle v. State, 99 So. 3d 967,
971 (Fla. Ct. App. 2012); Henry v. State, 82 So. 3d 1084,
1089 (Fla. Ct. App. 2012); State v. Brown, 118 So. 3d 332,
341–42 (La. 2013); State v. Merritt, No. M2012-00829-CCA-
R3CD, 2013 WL 6505145, at *5 (Tenn. Crim. App. Dec. 10,
2013).

    To be sure, in many of the cases refusing to extend
Graham, the sentence at issue left some possibility, however
slight, that the prisoner might eventually be released. But
nothing in their reasoning turned on such possibility. See,
e.g., Brown, 118 So. 3d at 341 (“[N]othing in Graham . . .
applies to sentences for multiple convictions, as Graham
conducted no analysis of sentences for multiple convictions
and provides no guidance on how to handle such sentences.”).




  3
    None of those courts were required, as the panel was, to give deference
under AEDPA to the contrary decision of a state court. Thus, none of
them held, as the panel’s opinion does, that the unconstitutionality of such
sentences was “clearly established” by Graham. Moreover, even courts
that have applied Graham to aggregate term-of-years sentences have
recognized they are extending the case beyond its “clearly established”
holding. See Rainer, 2013 WL 1490107, at *10; Null, 836 N.W.2d at 67;
see also Caballero, 282 P.3d at 296 (Werdegar, J., concurring, joined by
Liu, J.).
10                    MOORE V. BITER

    The existence of such a split is good evidence that the
California courts’ determination here—Graham does not
apply to Moore’s sentence—is not contrary to “clearly
established” federal law. Cf. Evenstad v. Carlson, 470 F.3d
777, 783 (8th Cir. 2006) (“When the federal circuits disagree
as to a point of law, the law cannot be considered ‘clearly
established’ under 28 U.S.C. § 2254(d)(1).”); Boyd v.
Newland, 467 F.3d 1139, 1152 (9th Cir. 2006) (holding that
“in the face of [out-of-circuit] authority that is directly
contrary” to our own interpretation of Supreme Court
precedent, “and in the absence of explicit direction from the
Supreme Court,” we cannot hold that the state courts’
analysis “was contrary to, or involved an unreasonable
application of, Supreme Court precedent.”).

    Were the panel required to confront the constitutionality
of Moore’s sentence on direct review, or on collateral review
of a federal sentence, picking one side of the dispute would
have been necessary. But AEDPA precludes federal courts
from settling such disputes on collateral review of a state
sentence, at least without a persuasive explanation of how so
many courts erred so obviously. The panel’s opinion neither
acknowledges the dispute nor explains how the panel divined
a clearly established holding of the Supreme Court in the face
of such widespread disagreement. Instead, it concedes a
tangentially related split over how Graham applies “to
lengthy term-of-years sentences that provide some possibility
of parole.” Moore, 725 F.3d at 1194 n.6.

                              C

    An equally telling omission: the panel offers no
justification for creating a circuit split, acting instead as
though it has not done so. The only argument the opinion
                         MOORE V. BITER                              11

provides for ignoring the Sixth Circuit’s well-reasoned and
thorough opinion is that the facts are different. Id. But any
factual distinction—Bunch will be at least 95 years old when
he is eligible for parole, Bunch, 685 F.3d at 551 n.1, whereas
Moore will be at least 144—does not make a meaningful
difference. Bunch, like Moore, will not be eligible for parole
until well beyond his life expectancy.4

    Moreover, nothing in the Sixth Circuit’s opinion turns on
the possibility that Bunch might outlive his sentence. Our
sister circuit acknowledged that Bunch’s sentence “may end
up being the functional equivalent of life without parole.”
Bunch, 685 F.3d at 551. Such was the sentencing judge’s
goal: “I just have to make sure that you don’t get out of the
penitentiary. I’ve got to do everything I can to keep you
there, because it would be a mistake to have you back in
society.” Id. at 548. Nonetheless, the court determined that
Bunch’s sentence was not contrary to clearly established
federal law, because “in Graham, the Court said that a
juvenile is entitled to . . . a ‘realistic opportunity to obtain
release’ if a state imposes a sentence of ‘life.’” Id. at 551
(quoting Graham, 560 U.S. at 82). “Graham’s holding” does
not apply, therefore, “to a juvenile offender who received
consecutive, fixed-term sentences.” Id.; see also id. at 548
(The Supreme Court “did not address juvenile offenders, like
Bunch, who received consecutive, fixed-term sentences for
committing multiple nonhomicide offenses.”).

    The panel cannot evade the force of Bunch’s reasoning by
noting an insignificant factual distinction, which our sister


 4
   See State v. Bunch, No. 06 MA 106, 2007 WL 4696832, at *5 (Ohio
Ct. App. Dec. 21, 2007) (Bunch “indicates, with citation to authorities,
that his life expectancy is only 70 years.”).
12                     MOORE V. BITER

circuit assumed away. Yet the panel’s opinion sets forth no
other argument.

                              III

    Respect for the California courts, for our sister circuit,
and for courts across the country that have declined to apply
Graham to sentences such as Moore’s should have compelled
the panel to declare the reasons why it found their analysis
unpersuasive. Instead, the panel’s opinion ignores their
arguments.

    But the states encompassed by our Circuit cannot ignore
the opinion’s holding, which requires them to ask:

        At what number of years would the Eighth
        Amendment become implicated in the
        sentencing of a juvenile: twenty, thirty, forty,
        fifty, some lesser or greater number? Would
        gain time be taken into account? Could the
        number vary from offender to offender based
        on race, gender, socioeconomic class or other
        criteria? Does the number of crimes matter?

Henry, 82 So. 3d at 1089. Also, “What if the aggregate
sentences are from different cases? From different circuits?
From different jurisdictions? If from different jurisdictions,
which jurisdiction must modify its sentence or sentences to
avoid constitutional infirmity?” Walle, 99 So. 3d at 972.

    Without authority to do so, the panel’s opinion would
force all the states in our Circuit to confront those questions;
the opinion forbids them from “apply[ing] Graham as it is
written,” yet gives them no other “tools to work with,” Henry,
                       MOORE V. BITER                        13

82 So. 3d at 1089, when answering. And each of their
answers could potentially be overruled by our Court as
contrary to the “clearly established” rule of Graham.

                              IV

    As the Supreme Court has reminded us yet again,
“AEDPA recognizes a foundational principle of our federal
system: State courts are adequate forums for the vindication
of federal rights.” Burt v. Titlow, 134 S. Ct. 10, 15 (2013).
We should never “lightly conclude that a State’s criminal
justice system has experienced the ‘extreme malfunctio[n]’
for which federal habeas relief is the remedy.” Id. (alteration
in original) (quoting Harrington v. Richter, 131 S. Ct. 770,
786 (2011)). The panel has apparently concluded, without
explanation, that not only the California court, but also the
Sixth Circuit and courts across the country have experienced
such an extreme malfunction. This “judicial disregard for the
sound and established principles” that govern issuance of the
writ of habeas corpus threatens to undermine “confidence in
the writ and the law it vindicates.” Richter, 131 S. Ct. at 780.

    Because the panel’s opinion defies AEDPA, creates a
circuit split, and threatens frequent and unjustified intrusions
into state sovereignty, I respectfully dissent from our Court’s
regrettable failure to rehear this case en banc.
