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Moor v. Palmer

April 29, 2010

MARK MOOR, PETITIONER-APPELLANT,
v.
JACK PALMER; NEVADA ATTORNEY GENERAL, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the District of Nevada, Brian E. Sandoval, District Judge, Presiding, D.C. No. CV-07-00151-BES.

The opinion of the court was delivered by: Wallace, Senior Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted January 15, 2010 -- San Francisco, California.

Before: J. Clifford Wallace, Procter Hug, Jr., and Richard R. Clifton, Circuit Judges.

OPINION

Petitioner Mark Moor appeals from the district court's denial of his petition for a writ of habeas corpus. We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 2253. We review the district court's denial of Moor's habeas petition de novo, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.

I.

In March 1994, Moor pled guilty in a Nevada state court to using a minor in the production of pornography, in violation of Nevada Revised Statutes section 200.710. He was sentenced to a term of life with the possibility of parole after five years. In April 2000, he was released on parole. In April 2002, Moor was arrested for violating certain terms and conditions of his parole. In June 2002, the Parole Board (Board) found him guilty of parole violations and revoked his parole. The Board also determined that it would next review and consider Moor for parole in three years. In 2005, he was denied parole and was told he would again be considered for parole in another three years. In his federal habeas petition, Moor challenges the 2005 denial of parole.

A.

Moor argues that he was punished twice for the same parole violations - once in 2002 when his parole was revoked, and then again in 2005 when he was denied parole for another three years - in violation of the Double Jeopardy Clause of the Fifth Amendment.

[1] We point out that Moor did not raise his double jeopardy contention in the district court. Although his federal habeas petition did take issue with the extension of his incarceration "for three (3) years, past the three (3) year parole violation term [set in 2002]", he framed this issue as one of due process, not double jeopardy. Although we have discretion to do so, Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir. 2006), we generally do not consider on appeal issues that were not raised in the habeas petition to the district court. Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998).

[2] If we were to consider Moor's double jeopardy claim on the merits, it would nevertheless fail. The Double Jeopardy Clause "protects against multiple punishments for the same offense." United States v. DiFrancesco, 449 U.S. 117, 129 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). But it "does not prohibit the imposition of all additional sanctions that could, in common parlance, be described as punishment . . . . The Clause protects only against the imposition of multiple criminal punishments for the same offense." Hudson v. United States, 522 U.S. 93, 98-99 (1997) (internal quotation marks and citations omitted). Parole revocation is not a criminal penalty for violating the terms of parole. United States v. Soto-Olivas, 44 F.3d 788, 789 (9th Cir. 1995) ("revocation is not punishment for the subsequent events which violate the parole"). It is ...


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