David Clark v. Paul O'Connell, et al
FILED OPINION (MICHAEL DALY HAWKINS, SUSAN P. GRABER and JAMES V. SELNA) AFFIRMED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. 
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID BERNARD CLARK,
CHARLES L. RYAN, Director of
the Arizona Department of
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted August 12, 2016
San Francisco, California
Filed September 2, 2016
Before: Michael Daly Hawkins and Susan P. Graber,
Circuit Judges, and James V. Selna,* District Judge.
Opinion by Judge Graber
The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.
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CLARK V. RYAN
Affirming the district court’s denial of a habeas corpus
petition, the panel held that the Arizona Court of Appeals’
decision that Arizona’s modern sex offender registration
statute is not an ex post facto law is neither contrary to, nor an
unreasonable application of, the Supreme Court’s decision in
Smith v. Doe I, 538 U.S. 84 (2003).
Sandra L. Slaton (argued) and Kristin Roebuck, Horne Slaton
PLLC, Scottsdale, Arizona, for Petitioner-Appellant.
Andrew S. Reilly (argued), Assistant Attorney General,
Capital Litigation Section; Lacey Stover Gard, Chief
Counsel; Mark Brnovich, Attorney General; Office of the
Attorney General, Phoenix, Arizona; for RespondentAppellee.
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
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CLARK V. RYAN
GRABER, Circuit Judge:
Petitioner David Bernard Clark appeals the district court’s
denial of his petition for writ of habeas corpus. Petitioner
contends that an Arizona Court of Appeals’ decision that
Arizona’s modern sex offender registration statute, Ariz. Rev.
Stat. § 13-3821, is not an ex post facto law is both contrary to
and involves an unreasonable application of clearly
established federal law. Reviewing the district court’s
decision de novo, Pollard v. White, 119 F.3d 1430, 1433 (9th
Cir. 1997), we affirm.
In 1982, Petitioner pleaded guilty to sexual misconduct,
a Class 2 felony in Arizona, arising from an incident in which
he engaged in sex with a fourteen-year-old, which is below
the legal age of consent, when he was eighteen years old. As
punishment, he received and completed a four-year term of
probation. Arizona enacted its modern sex offender
registration statute in 1983, Ariz. Rev. Stat. § 13-3821,
requiring Petitioner to register as a sex offender because of
his prior conviction for sexual misconduct. See State v.
Henry, 228 P.3d 900, 904 (Ariz. Ct. App. 2010) (noting that,
between 1978 and 1983, Arizona was without a sex offender
In December 2009, Petitioner was arrested in Cochise
County, Arizona, for failing to comply with the statute. In
January 2010, he pleaded guilty to a charge of failure to
register as a sex offender, a Class 4 felony, and was sentenced
to a stipulated prison term of three and one-half years.
Petitioner filed a petition for post-conviction relief with the
state trial court, arguing that his conviction violated the Ex
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CLARK V. RYAN
Post Facto Clause of the United States Constitution. The
state trial court rejected that claim on the merits, relying on
Henry, 228 P.3d at 908. In Henry, the Arizona Court of
Appeals held that Arizona Revised Statute section 13-3821
did not violate the right against ex post facto punishment
protected by the United States or the Arizona Constitution.
Id. Henry applied the United States Supreme Court’s
decision in Smith v. Doe I, 538 U.S. 84 (2003), which upheld
Alaska’s sex offender registration statute against an ex post
facto challenge. Henry, 228 P.3d at 906–08. In Petitioner’s
case, the Arizona Court of Appeals followed Henry to hold
that Petitioner’s conviction was not an ex post facto violation.
Petitioner appealed that decision to the Arizona Supreme
Court, which denied review.
Petitioner then filed a federal petition for writ of habeas
corpus. The district court denied the petition, holding that the
state court did not apply Smith unreasonably to the facts of
Under the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), habeas relief is available if the last
reasoned state court decision—here, the decision of the
Arizona Court of Appeals—was contrary to, or an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. 28 U.S.C.
§ 2254(d)(1). “A state court’s decision can involve an
‘unreasonable application’ of Federal law if it either
1) correctly identifies the governing rule but then applies it to
a new set of facts in a way that is objectively unreasonable,
or 2) extends or fails to extend a clearly established legal
principle to a new context in a way that is objectively
unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142
(9th Cir. 2002); see also Woodford v. Visciotti, 537 U.S. 19,
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24 (2002) (per curiam) (noting that AEDPA is a “highly
deferential standard for evaluating state-court rulings, which
demands that state-court decisions be given the benefit of the
doubt” (citation and internal quotation marks omitted)).
Here, the Arizona Court of Appeals relied on its earlier
decision in Henry.1 Whether or not its decision was contrary
to, or an unreasonable application of Supreme Court authority
thus necessitates that we examine Henry’s logic.
The Ex Post Facto Clause of the United States
Constitution “forbids the application of any new punitive
measure to a crime already consummated.” Kansas v.
Hendricks, 521 U.S. 346, 370 (1997) (internal quotation
marks omitted). When determining whether a state’s sex
offender registration statute violates the Ex Post Facto
Clause, courts must first “ascertain whether the legislature
meant the statute to establish civil proceedings. If the
intention of the legislature was to impose punishment, that
ends the inquiry.” Smith, 538 U.S. at 92 (citation and internal
quotation marks omitted). “If, however, the intention was to
enact a regulatory scheme that is civil and nonpunitive,”
courts must then “examine whether the statutory scheme is so
punitive either in purpose or effect as to negate the State’s
intention to deem it civil.” Id. (internal quotation marks and
In Smith, the United States Supreme Court held that
Alaska’s Sex Offender Registration Act, which established a
registration and public notification scheme similar to
Arizona’s, was “nonpunitive, and its retroactive application
Petitioner does not contend that the facts of this case are meaningfully
different from those in Henry.
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does not violate the Ex Post Facto Clause.” Id. at 105–06.
The Court reached its conclusion by reasoning that “the intent
of the Alaska Legislature was to create a civil, nonpunitive
regime,” id. at 96, and that the respondents could not show
“that the effects of the law negate Alaska’s intention to
establish a civil regulatory scheme,” id. at 105.
The first step in analyzing legislative intent thus requires
courts to “ask whether the legislature, in establishing the
penalizing mechanism, indicated either expressly or impliedly
a preference for one label or the other.” Id. at 93 (internal
quotation marks omitted). Henry did just that, citing the
law’s regulatory, nonpunitive aim: “The purpose of the
[Department of Public Safety’s] internet sex offender website
is to provide sex offender information to the public.” Henry,
228 P.3d at 905 (alteration in original) (quoting 1998 Ariz.
Sess. Laws, ch. 291, § 5). Moreover, Henry noted that an
earlier decision of the Arizona Court of Appeals had found
that “the legislature furnished ample indication that it
intended to protect communities, not punish sex offenders”
through the registration requirements. Id. (quoting Ariz.
Dep’t of Pub. Safety v. Superior Court, 949 P.2d 983, 988
(Ariz. Ct. App. 1997)). Specifically, the earlier decision
found a “regulatory objective” in the registration
requirements—the legislature’s desire to protect the public
from repeat sex offenders. Ariz. Dep’t of Pub. Safety,
949 P.2d at 988.
From the facts that Arizona’s sex offender registration
scheme was enacted within the criminal code and that
noncompliance with the registration requirements can result
in punishment it does not necessarily follow that the
legislature’s intent was punitive. In Smith, the Supreme
Court expressly stated that “[t]he location and labels of a
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statutory provision do not by themselves transform a civil
remedy into a criminal one.” 538 U.S. at 94. The Court also
held that Alaska’s registration statute, which likewise
contained criminal penalties for noncompliance, was
nonpunitive. Id. at 102. It was thus not unreasonable for the
Arizona Court of Appeals to conclude that Arizona’s
regulatory scheme is intended to be civil and nonpunitive.
Turning next to the question whether a law’s punitive
effects outweigh its regulatory purposes, courts consider a
nonexhaustive set of factors listed in Kennedy v. MendozaMartinez, 372 U.S. 144, 168–69 (1963). Smith, 538 U.S. at
97. Smith identified the factors most relevant to the sex
offender registration inquiry as being whether, in its
necessary operation, the regulatory scheme: (1) has been
regarded in our history and traditions as a punishment;
(2) imposes an affirmative disability or restraint; (3) promotes
the traditional aims of punishment; (4) has a rational
connection to a nonpunitive purpose; or (5) is excessive with
respect to this purpose. Id.
There are two possible ways to consider whether the
Arizona decision unreasonably applies Smith. One way is to
examine the state court’s application of each nonexclusive
Smith factor. The other is to view the state court’s decision
as a whole, without parsing each factor. Either way, we
conclude that Henry does not apply Smith unreasonably. We
will begin by discussing each factor.
1. Regarded as Punishment in History and Traditions
The Henry court considered this factor. Although the
Arizona Supreme Court had previously held sex offender
registration to be a traditional form of punishment, that
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holding was “undermined by Smith,” which held that “[o]ur
system does not treat dissemination of truthful information in
furtherance of a legitimate governmental objective as
punishment.” Henry, 228 P.3d at 906 (quoting Smith,
538 U.S. at 98; citing State v. Noble, 829 P.2d 1217, 1223
Petitioner contends that the registration requirements of
the Arizona statute, unlike the Alaska scheme in Smith, “go
beyond the mere dissemination of factual information” and
are analogous to public shaming. Specifically, he argues that
Internet use has increased since the Supreme Court decided
Smith in 2003; the Arizona statute requires registrants to
provide online identifiers; and website identification will
likely facilitate harassment of registrants, as evidenced by the
recent adoption of cyber-stalking and cyber-harassment laws
Although Internet use has indeed increased since the
Supreme Court decided Smith in 2003, the Court specifically
considered the vast “geographic reach of the Internet” in its
decision. The Court reasoned that “[w]idespread public
access is necessary for the efficacy of the scheme, and the
attendant humiliation is but a collateral consequence of a
valid regulation.” Smith, 538 U.S. at 99. Thus, the Henry
court’s analysis under this factor was not unreasonable.
2. Imposing Affirmative Disability or Restraint
Henry acknowledged that “Arizona’s scheme is even
more analogous to probation or supervised release than the
Alaska scheme addressed in Smith.” Henry, 228 P.3d at
906–07. The decision, however, went on to note that
“Arizona’s supreme court previously has upheld our sex
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offender registration system as regulatory despite its
codification in . . . our criminal code; its enforcement solely
through criminal prosecution; and its designation of
registration violations as felony offenses.” Id. at 907 (citing
Noble, 829 P.2d at 1218–19). The decision also emphasized
that the Arizona legislature “has taken steps to tailor the
statutes to serve more precisely their nonpunitive ends.” Id.
For example, mandatory notification is required only for
offenders who are deemed to pose a high risk to the
community, some provisions limit public disclosure of an
offender’s online identifiers, and courts are allowed to
terminate both registration and community-notification
requirements for sex offenders younger than age 22. Id.
(citing Ariz. Rev. Stat. §§ 13-3821(H), 13-3825(C) & (L),
and 13-3827(A), (D) & (E)). Taking the Arizona Supreme
Court’s decision in Noble and the statute’s registration
exceptions into account, it was not unreasonable for the
Henry court to conclude that the statute is not so burdensome
as to impose an affirmative disability or restraint.
3. Promoting Traditional Aims of Punishment
Henry does not expressly consider this factor.2
Nonetheless, this factor does not weigh heavily in favor of a
conclusion that the punitive effects of Arizona’s registration
statute outweigh its regulatory purposes.
Petitioner does not argue that the mere failure to discuss every factor
renders the Arizona court’s decision contrary to, or an unreasonable
application of, Supreme Court law. Nor would such an argument succeed
in view of the fact that the Mendoza-Martinez factors are “neither
exhaustive nor dispositive,” Smith, 538 U.S. at 97 (quoting United States
v. Ward, 448 U.S. 242, 249 (1980)).
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The Supreme Court in Smith downplayed the importance
of this factor: “To hold that the mere presence of a deterrent
purpose renders . . . sanctions criminal would severely
undermine the Government’s ability to engage in effective
regulation.” 538 U.S. at 102 (internal quotation marks and
ellipsis omitted). The Court also noted that, because the
length of reporting requirements under the Alaska law were
“reasonably related to the danger of recidivism, . . . [the law]
is consistent with the regulatory objective.” Id. Moreover,
although Henry does not expressly discuss this factor, it does
list various exceptions to the notification and registration
requirements depending on the offender’s level of risk or age.
228 P.3d at 907. Those exceptions undermine Petitioner’s
claim that the statute applies to all offenders indiscriminately.
Similarly, the exceptions support a conclusion that, much
like the Alaska law in Smith, Arizona’s reporting
requirements are reasonably related to the danger of
4. Rational Connection to Nonpunitive Purpose
Smith notes that a law’s “rational connection to a
nonpunitive purpose is a most significant factor” in the
determination that the law’s effects are consistent with a
regulatory objective because they are nonpunitive. 538 U.S.
at 102 (internal quotation marks and brackets omitted). Much
like the law at issue in Smith, Arizona’s registration statute
Petitioner contends that this case is distinguishable from Smith because
he is challenging his criminal conviction for failing to register, rather than
merely challenging the registration requirements. This distinction is not
a meaningful one for present purposes. See United States v. Elkins,
683 F.3d 1039, 1043–45 (9th Cir. 2012) (relying on Smith to reject the
defendant’s claim that his prosecution under the Federal Sex Offender
Registration and Notification Act violated the Ex Post Facto Clause).
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clearly has “a legitimate nonpunitive purpose of public safety
. . . advanced by alerting the public to the risk of sex
offenders.” Id. at 102–03 (internal quotation marks omitted);
see also Henry, 228 P.3d at 907 (noting that the registration
and notification exceptions that apply depending on the
offender’s level of risk or age allow “the statutes to serve
more precisely their nonpunitive ends”). Therefore, as it did
in Smith, this factor weighs heavily in favor of a
determination that the registration scheme’s punitive effects
do not outweigh its regulatory purposes.
5. Excessive With Respect to Nonpunitive Purpose
Unlike the Alaska statutory scheme analyzed in
Smith—which required registration for only 15 years when
the offender had been convicted of a nonaggravated
offense—all offenders over the age of 22 must register for
life in Arizona. See Doe v. New Hampshire, 111 A.3d 1077,
1100 (N.H. 2015) (“We find the lifetime duration of the
registry in particular to be excessive, when considered with
all of the act’s other impositions.”). The Henry court was
troubled by the Arizona legislature’s removal of regulations
that limited disclosure, noting that the statutory scheme “now
specifically requires broad community disclosure . . . for most
classes of offenders.” 228 P.3d at 908. Despite those
concerns, though, Henry held that Arizona’s and Alaska’s
statutory schemes were “not meaningfully distinguishable.”
Id. Taking into account the Arizona statute’s registration and
notification exceptions, which depend on the offender’s level
of risk or age, the state court’s conclusion was not
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6. Remaining Factors
Smith counsels that “[t]he two remaining MendozaMartinez factors—whether the regulation comes into play
only on a finding of scienter and whether the behavior to
which it applies is already a crime—are of little weight” in
cases such as this one. Smith, 538 U.S. at 105; see also id.
(“The regulatory scheme applies only to past conduct, which
was, and is, a crime. This is a necessary beginning point, for
recidivism is the statutory concern.”). Thus, those factors do
little to support Petitioner’s claim.
We turn next to an overall consideration of Henry in light
of Smith. Considering all the relevant factors, taken together,
the Arizona Court of Appeals was not unreasonable in
holding that the statute’s punitive effects fail to outweigh its
regulatory purposes. The state court’s decision in the present
case is neither contrary to, nor does it unreasonably apply, the
relevant Supreme Court precedent, Smith.
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