                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4144
                                    ___________

James A. Burr,                           *
                                         *
      Appellant,                         *
                                         * Appeal from the United States
             v.                          * District Court for the
                                         * District of North Dakota.
Leo Snider, Sheriff of Morton            *
County, North Dakota,                    *
                                         *
      Appellee.                          *
                                    ___________

                              Submitted: October 20, 2000

                                   Filed: December 14, 2000
                                    ___________

Before WOLLMAN, Chief Judge, BEAM, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                            ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       James Burr, a convicted sex offender, pleaded guilty to violating North Dakota's
sex offender registration statute after he moved to a new address without notifying the
police. See N.D. Cent. Code § 12.1-32-15(3). Mr. Burr appealed his conviction to the
North Dakota Supreme Court, but he failed to obtain relief. See State v. Burr, 598
N.W.2d 147 (N.D. 1999). He then petitioned for habeas corpus review in federal
district court,1 arguing that North Dakota's sex offender registration statute violated the
prohibition against ex post facto punishment for crimes. The district court denied
Mr. Burr's petition and we affirm.

                                           I.
       North Dakota's sex offender registration statute requires previously convicted sex
offenders, such as Mr. Burr, to register their address with the police and provide
notification whenever they move to a new address. See N.D. Cent. Code § 12.1-32-
15(3). Mr. Burr maintains that this statute constitutes an ex post facto violation; he
argues that by requiring him to register, North Dakota is imposing an additional
punishment on him for his original conviction.

       Mr. Burr's argument rests on art. I, § 10, cl. 1, of the Constitution, which
provides that "[n]o State shall ... pass any ... ex post facto Law." Although the term "ex
post facto" literally describes any law passed "after the fact," it is well established that
this provision applies only to criminal punishments. See Collins v. Youngblood, 497
U.S. 37, 41 (1990). A law violates the ex post facto prohibition if it applies to events
occurring before its enactment and causes an offender affected by it to suffer a
disadvantage, either by altering the definition of particular criminal conduct or by
increasing the punishment for the crime. See id. at 50; see also Weaver v. Graham,
450 U.S. 24, 29 (1981).

       The North Dakota Supreme Court rejected Mr. Burr's argument because it
concluded that the registration statute was not punitive, even though it had a
retrospective effect. See Burr, 598 N.W.2d at 159. We hold that this decision is
neither "contrary to," nor "an unreasonable application of, clearly established Federal



       1
       The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.

                                            -2-
law, as determined by the Supreme Court of the United States," see 28 U.S.C.
§ 2254(d)(1); see also Williams v. Taylor, 120 S. Ct. 1495, 1519-23 (2000).

       In reaching its decision, the North Dakota Supreme Court began with an
examination of the legislative history of the registration statute. See Burr, 598 N.W.2d
at 152-53. It found no evidence that the legislature sought to increase the penalty for
sex crimes or intended to use registration as a punishment. See id. at 153. The North
Dakota Supreme Court then proceeded to determine whether the registration statute
was punitive in its actual effect. See id. at 153-59. For this analysis, see id., it relied
on the holding of the Supreme Court of the United States in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 169 (1963).

       Mendoza-Martinez identifies seven considerations that serve as guideposts for
deciding whether a law is punitive. These considerations are: (1) whether the sanction
involves an affirmative disability or restraint; (2) whether it has historically been
regarded as punishment; (3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of punishment, which are
retribution and deterrence; (5) whether the behavior to which it applies is already a
crime; (6) whether an alternative purpose to which it may rationally be connected is
assignable to it; and (7) whether it appears excessive in relation to the alternative
purpose assigned. See id. at 168-69. The North Dakota Supreme Court considered
these matters in relation to the registration statute and held that the law was not
punitive. See Burr, 598 N.W.2d at 158-59. It observed that a requirement to register
did not impose on Mr. Burr any affirmative disability or restraint. See id. at 154. It
also noted that this requirement did not fit within any traditional notion of what was
punishment. See id. Finally, the North Dakota Supreme Court ruled that the
registration statute furthered a "legitimate," see id. at 159, public interest of protecting
communities from sexual predators and was not excessive in the context of its
"important," see id. at 156, purpose.



                                            -3-
       We believe that the North Dakota Supreme Court applied the appropriate legal
standard in this case, and we cannot say that its decision was unreasonable in light of
any clearly established legal principle as determined by the Supreme Court of the
United States. We note, as Mr. Burr concedes in his brief, that "there is no single
bright-line test for what constitutes punishment," and that an application of Mendoza-
Martinez usually involves a certain degree of judicial discretion: Some of the
considerations identified in that case may be more or less dispositive than others. See
Hudson v. United States, 522 U.S. 93, 101 (1997). Courts are free, moreover, to weigh
additional considerations beyond those identified in Mendoza-Martinez. See United
States v. Ward, 448 U.S. 242, 249 (1980). We also point out that the Supreme Court
of the United States has never addressed in its cases the question of whether sex
offenders may be required to register after they have been convicted. Because the
North Dakota Supreme Court's determination was not unreasonable, we affirm this
aspect of the district court's rulings.

                                            II.
       Mr. Burr also argues in his petition for habeas corpus review that North Dakota's
sex offender registration statute violates the prohibition against ex post facto
punishment because it allows for the possibility that the police will disseminate
information about registered convicts to the general public. See N.D. Cent. Code §
12.1-32-15(11). He contends that such disclosures would deprive him of his rights to
liberty and due process. Mr. Burr pressed this same argument in his state appeal, but
the North Dakota Supreme Court declined to rule on it, finding, instead, that the issue
was defaulted because Mr. Burr had failed to preserve it properly for appeal. See Burr,
598 N.W.2d at 157.

       We must likewise decline Mr. Burr's request that we review the community
notification provision of the registration statute. "When reviewing a federal habeas
corpus petition, we can usually only consider 'those claims which the petitioner has
presented to the state court in accordance with state procedural rules,' " Abdullah v.

                                          -4-
Groose, 75 F.3d 408, 411 (8th Cir. 1996) (en banc), cert. denied, 517 U.S. 1215
(1996), quoting Satter v. Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992). We will not
consider, as a general rule, any issue that a state court has held to be defaulted on the
basis of an adequate and independent state ground. See Murray v. Carrier, 477 U.S.
478, 485-87 (1986); see also Pollard v. Armontrout, 16 F.3d 295, 297 (8th Cir. 1994).
In this case, Mr. Burr was unable to convince the North Dakota Supreme Court to
consider his argument on community notification because the court deemed the issue
defaulted under its well established rules. See State v. Kraft, 539 N.W.2d 56, 58 (N.D.
1995); State v. Slapnicka, 376 N.W.2d 33, 35 (N.D. 1985). Because the state court's
ruling that the matter was defaulted is binding on us, we do not consider the merits of
Mr. Burr's argument with respect to community notification and the consequent
dissemination of information about him.

                                         III.
      For the reasons indicated, we affirm the judgment of the district court.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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