George W. Nulph v. Dave Cook, Director of the Department of Corrections Hardy Myers, Attorney General of the State of Oregon

333 F.3d 1052 George W. NULPH, Petitioner-Appellant, v. Dave COOK, Director of the Department of Corrections; Hardy Myers, Attorney General of the State of Oregon, Respondents-Appellees. No. 01-35556. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2002. Filed June 26, 2003. Wendy R. Willis, Assistant Federal Public Defender, Portland, OR, for the petitioner-appellant. Timothy A. Sylwester, Assistant Attorney General, Salem, OR, for the respondents-appellees. Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-98-00445-MFM. Before: FERGUSON, W. FLETCHER, Circuit Judges, and KING, * District Judge. Opinion by Judge FERGUSON; Dissent by District Judge KING. OPINION FERGUSON, Circuit Judge. 1 Petitioner/Appellant George William Nulph appeals the District Court's denial of his habeas petition, which alleged that the Oregon State Board of Parole ("Board") vindictively increased his sentence from 30-years to 75-years imprisonment after he prevailed in this Court on a previous habeas action challenging the Board's retrospective application of two Oregon sentencing rules. The District…

Opinion by Judge FERGUSON; Dissent by District Judge KING.

OPINION

Petitioner/Appellant George William Nulph appeals the District Court’s denial of his habeas petition, which alleged that the Oregon State Board of Parole *1054 (“Board”) vindictively increased his sentence from 30-years to 75-years imprisonment after he prevailed in this Court on a previous habeas action challenging the Board’s retrospective application of two Oregon sentencing rules. The District Court denied the habeas petition, rejecting the Magistrate Judge’s recommendation to grant relief. We reverse.

I.

A. Original Sentence

In 1986, Nulph was convicted by a jury in Oregon state court of multiple offenses relating to a kidnapping and rape. The trial court found Nulph to be a dangerous offender pursuant to Oregon Revised Statute § 161.725 and sentenced him to seven 30-year indeterminate terms (with 15-year minimum terms) and one 5-year term. Five of the 30-year terms ran consecutively. The court imposed a maximum sentence of 155 years, with a minimum of 75 years.

In accordance with Oregon’s two-step procedure for sentencing, the Board held a hearing in 1987 to set Nulph’s release eligibility date. 1 See…

dissenting:

I respectfully dissent. In my view, the presumption of vindictiveness did not arise in this case, and petitioner has made no showing of actual vindictiveness so as to be entitled to habeas relief.

It is, of course, well-settled that due process “requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial.” Alabama v. Smith, 490 U.S. 794, 798 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989) (quoting North Carolina v. Pearce, 395 U.S. 711, 725 , 89 S.Ct. 2072 , 23 L.Ed.2d 656 (1969)). In order to ensure the efficacious use of the prophylactic rule announced in Pearce , the Court clarified that “[wjhile the Pearce opinion appeared on its face to announce a rule of sweeping dimension, our subsequent cases have made clear that its presumption of vindictiveness does not apply in every case where a convicted defendant receives a higher sentence on retrial.” Id. at 799 , 109 S.Ct. 2201 (quoting Texas v. McCullough, 475 U.S. 134, 138 , 106 S.Ct. 976 , 89 L.Ed.2d 104 (1986)) (internal quotations omitted). Instead, the Pearce presumption only applies to situations “in which there…