                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 02 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MORTON BERGER,                                   No. 11-17316

              Petitioner - Appellant,            D.C. No. 2:09-cv-02689-DGC

  v.
                                                 MEMORANDUM *
THOMAS C HORNE, The Attorney
General of the State of Arizona and
CHARLES L. RYAN, Director, Arizona
Department of Corrections,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                       Argued and Submitted April 16, 2013
                            San Francisco, California

Before: SCHROEDER, THOMAS and SILVERMAN, Circuit Judges.

       Petitioner Morton Berger appeals from the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus. After being convicted of

twenty counts of possession of child pornography, a class two felony and a


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                         -2-

dangerous crime against children in the first degree, in violation of Arizona

Revised Statutes §§ 13-3551, 13-3553, and 13-604.01 (renumbered as A.R.S.

§ 13-705), Berger was sentenced to a ten-year sentence for each conviction, with

the terms to run consecutively as mandated by Arizona Revised Statutes §§ 13-

604.01 and 13-3553. Berger challenged the sentence on direct appeal, arguing that

the total sentence of 200 years was unconstitutional under the Eighth Amendment

of the United States Constitution. The Arizona Supreme Court rejected his

argument and upheld the sentence.

      Berger raises the same Eighth Amendment challenge in his federal habeas

petition. The district court concluded that the Arizona Supreme Court’s resolution

of Berger’s Eighth Amendment challenge was not contrary to or an unreasonable

application of clearly established Supreme Court precedent. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253 and now affirm.

      Berger contends that for the purposes of his Eighth Amendment challenge,

the Arizona Supreme Court should have assessed whether his aggregate 200-year

sentence raised an inference of gross disproportionality. The Arizona Supreme

Court disagreed and assessed the constitutionality of each ten-year sentence

individually. This decision was not contrary to or an unreasonable application of

clearly established Supreme Court precedent because there is no clearly established
                                          -3-

law on this point. See Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007)

(“Where the Supreme Court has not addressed an issue in its holding, a state court

adjudication of the issue not addressed by the Supreme Court cannot be contrary

to, or an unreasonable application of, clearly established federal law.”).

      We further hold that the Arizona Supreme Court’s decision was not contrary

to and did not unreasonably apply clearly established Supreme Court law when

concluding that a ten-year sentence for the crime of possessing child pornography

depicting a minor under the age of fifteen does not raise an inference of gross

disproportionality. Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (“[I]n this case, the

only relevant clearly established law amenable to the ‘contrary to’ or ‘unreasonable

application of’ framework is the gross disproportionality principle, the precise

contours of which are unclear, applicable only in the ‘exceedingly rare’ and

‘extreme’ case.”). The Arizona Supreme Court was not objectively unreasonable

in its comparison of the gravity of the offense to the harshness of the penalty,

including its assessment of the Arizona State Legislature’s penological

justifications for its sentencing scheme, Berger’s mental state and motive in

committing the crime, and the actual harm caused by his conduct, as well as the

absolute magnitude of the crime. See Ewing v. California, 538 U.S. 11, 28–29

(2003); Solem v. Helm, 463 U.S. 277, 292–93 (1983).
            -4-

AFFIRMED.
