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Moore v. Biter

United States Court of Appeals, Ninth Circuit

February 12, 2014

ROOSEVELT BRIAN MOORE, Petitioner-Appellant,
v.
M. D. BITER, Warden, Respondent-Appellee

D.C. No. 2:11-cv-04256-JAK-FFM.

For ROOSEVELT BRIAN MOORE, Petitioner - Appellant: Patricia Ann Young, FPDCA - Federal Public Defender's Office (Los Angeles), Los Angeles, CA; Roosevelt Brian Moore, KVSP - KERN VALLEY STATE PRISON, Delano, CA.

For M. D. BITER, Warden, Respondent - Appellee: Mary Sanchez, Deputy Assistant Attorney General, Xiomara Costello, AGCA - OFFICE OF THE CALIFORNIA ATTORNEY GENERAL (LA), Los Angeles, CA.

Before: Harry Pregerson, William A. Fletcher, and Jacqueline H. Nguyen, Circuit Judges. O'SCANNLAIN, Circuit Judge, joined by TALLMAN, BYBEE, CALLAHAN, BEA, M. SMITH, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc.

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.

DISSENT

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, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), invalidates the latter, ignoring the contrary holding of the Sixth Circuit,[1] disregarding

Page 918

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. ยง 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 ...


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