Guy Adam Rook v. Donald Holbrook

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY ADAM ROOK,
Petitioner-Appellant,
v.
DONALD HOLBROOK,
Respondent-Appellee.
No. 20-35139
D.C. No. 2:18-cv-00233-JCC
Western District of Washington,
Seattle
ORDER
Before: EBEL,* BEA, and VANDYKE, Circuit Judges.
The petition for panel rehearing is GRANTED. The Memorandum
Disposition filed on August 24, 2021, is WITHDRAWN and replaced with a
superseding Memorandum Disposition filed concurrently with this order. With
this superseding disposition, the petition for rehearing en banc is DENIED as
moot. Future petitions for rehearing will be permitted under the deadlines outlined
in Federal Rules of Appellate Procedure 35(c) and 40(a)(1).
IT IS SO ORDERED.
* The Honorable David M. Ebel, United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
DEC 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GUY ADAM ROOK,
Petitioner-Appellant,
v.
DONALD HOLBROOK,
Respondent-Appellee.
No. 20-35139
D.C. No. 2:18-cv-00233-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted August 13, 2021
Seattle, Washington
Before: EBEL,** BEA, and VANDYKE, Circuit Judges.
A jury convicted Guy Rook of vehicular assault committed in a reckless
manner. See Rev. Code Wash. § 46.61.522. Because this conviction was his “third
strike” under Washington’s Persistent Offender Accountability Act (the “POAA”),
the Washington state trial court sentenced him to life imprisonment without the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable David M. Ebel, United States Circuit Judge for the U.S.
Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
DEC 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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possibility of parole. See Rev. Code Wash. § 9.94A.570. On direct appeal, the
Washington Court of Appeals affirmed, concluding that he failed to prove his
sentence was grossly disproportionate in violation of the Eighth Amendment of the
U.S. Constitution and Article 1 (Section 14) of the Washington Constitution.1 Rook
then filed the instant habeas petition under 28 U.S.C. § 2254. The district court
denied the petition, and Rook appeals from this decision. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. Rook first contends that his federal constitutional claim was not
“adjudicated on the merits in State court proceedings” under § 2254(d). If Rook
were right, he would be entitled to de novo review, rather than § 2254(d)’s highly
deferential standard of review. See Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th
Cir. 2014).
Rook is correct to some extent: the Washington Court of Appeals declined to
address his Eighth Amendment claim directly because, as it explained, “[t]he state
constitutional proscription against ‘cruel punishment’ affords greater protection than
its federal counterpart,” so “if the state constitutional provision is not violated,
neither is the federal provision.” But his argument ultimately fails because a
1 The Washington Supreme Court subsequently denied review without
comment, so we review the Washington Court of Appeals’s decision as the “last
reasoned state court opinion.” Tamplin v. Muniz, 894 F.3d 1076, 1082 (9th Cir.
2018) (internal citation omitted).

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discussion of federal authority is not required to find that a state court adjudicated a
petitioner’s federal claim “on the merits.” See Early v. Packer, 537 U.S. 3, 8 (2002)
(per curiam) (holding that § 2254(d) “does not require citation of [federal] cases—
indeed, it does not even require awareness of [federal] cases, so long as neither the
reasoning nor the result of the state-court decision contradicts them”); Johnson v.
Williams, 568 U.S. 289, 299, 301 (2013) (reversing grant of habeas and holding that
“a state appellate court may regard its discussion of the state precedent as sufficient
to cover a claim based on the related federal right”).
Although our “strong” presumption “that the federal claim was adjudicated
on the merits” is not “irrebuttable,” id. at 301–02, Rook fails to rebut the
presumption. Rook argues that the Washington Court of Appeals failed to consider
the merits of his Eighth Amendment challenge on the grounds that the court erred in
holding that the Washington Constitution’s bar on cruel punishment is more
protective than the Eighth Amendment prohibition. For the reasons stated below,
we are not persuaded by this analysis of Washington law. But even if Rook were
correct, his arguments amount to the claim that the Washington Court of Appeals
applied the wrong standard to assess his Eighth Amendment claim. This argument
is more apt in addressing the next step of the analysis: whether the state court’s
decision “was contrary to, or involved an unreasonable application of, clearly
established Federal law.” § 2254(d); see Norris v. Morgan, 622 F.3d 1276, 1285

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(9th Cir. 2010) (applying § 2254(d) even though the Washington Court of Appeals
declined to discuss petitioner’s Eighth Amendment claim because the Washington
Constitution, which it did discuss, is more protective). Because Rook fails to
establish that his federal constitutional claim was not “adjudicated on the merits,”
we must apply § 2254(d)’s deferential standard of review.
2. Rook next argues that even if the Washington Court of Appeals had
adjudicated his claim “on the merits,” he is still entitled to relief because the decision
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” § 2254(d).
“Under the ‘contrary to’ prong of § 2254(d)(1), a federal court may grant habeas
relief only if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially indistinguishable facts.”
McKinney v. Ryan, 813 F.3d 798, 811 (9th Cir. 2015) (internal citation omitted).
Specifically, Rook contends that the Washington Court of Appeals’s decision
was “contrary to” the principles set forth in Rummel v. Estelle, 445 U.S. 263 (1980);
Solem v. Helm, 463 U.S. 277 (1983); Harmelin v. Michigan, 501 U.S. 957 (1991);
and Graham v. Florida, 560 U.S. 48 (2010). But the Supreme Court has recognized
that its Eighth Amendment proportionality “precedents . . . have not been a model
of clarity.” Lockyer v. Andrade, 538 U.S. 63, 72–73 (2003). In evaluating

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proportionality claims, the Supreme Court has considered some “objective criteria,”
such as “(i) the gravity of the offense and the harshness of the penalty; (ii) the
sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions.” Solem, 463 U.S.
at 292. The Supreme Court has concluded, however, that “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.” Lockyer,
538 U.S. at 72–73.2
Although the Washington Court of Appeals addressed Rook’s proportionality
claim under the Washington Constitution,3 Rook fails to establish that the decision
2 A majority of the Court repeated this general principle in Graham, and also
described the approach of Justice Kennedy’s opinion in Harmelin (decided before
Lockyer) as beginning with a comparison of “the gravity of the offense and the
severity of the sentence.” 560 U.S. at 59–60. But the Graham court did not rely on
“[t]he approach in cases such as Harmelin,” which “is suited for considering a gross
proportionality challenge to a particular defendant’s sentence, because [in Graham]
a sentencing practice itself [was] in question,” implicating instead a different line of
precedent. 560 U.S. at 61–62. Petitioner also cites cases from this Circuit, but 28
U.S.C. § 2254(d)(1) “permits habeas relief only if a state court’s decision is ‘contrary
to, or involved an unreasonable application of, clearly established Federal law’ as
determined by [the Supreme] Court, not by the courts of appeals.” Lopez v. Smith,
574 U.S. 1, 6 (2014). At any rate, for the reasons stated below, we are satisfied that
the Washington Court of Appeals adequately considered the gravity of Rook’s
offenses and the severity of his sentence.
3 In doing so, the Washington Court of Appeals analyzed three factors derived
from State v. Fain, 617 P.2d 720 (Wash. 1980): “(1) the nature of the offense, (2)
the punishment received in other jurisdictions for the same offense, and (3) the

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“was contrary to . . . clearly established Federal law” under § 2254(d). The
Washington Court of Appeals considered—and rejected—Rook’s argument that
“the seriousness of [his] offenses weighs heavily against application of the POAA
in this case” and that his circumstances “do not warrant the imposition of the highest
punishment possible short of the death penalty.” The court analyzed past and present
iterations of the vehicular assault statute, of which Rook was convicted, and
concluded that “Rook fail[ed] to show that either the nature of the [offense] or the
legislative purpose warrants a less severe penalty.” The Washington Court of
Appeals also examined “a survey of other states’ vehicular assault statutes” and
found that Rook’s conduct satisfies the elements for assault with a deadly weapon—
and thus constitutes a “strike” under the respective recidivist statute—in both North
Carolina and California. Rook thus fails to carry his burden. Cf. Harmelin, 501 U.S.
at 987–89, 1001 (holding that mandatory life sentence without possibility of parole
for possession of cocaine was not grossly disproportionate in violation of the Eighth
punishment imposed for other offenses in the same jurisdiction.” See State v.
Manussier, 921 P.2d 473, 485 (Wash. 1996) (specifying that Washington state courts
“consider[] [these] three factors in determining whether a punishment is
disproportionate to the crime committed and thus ‘cruel’ in contravention of
[Washington] Const. art. I, § 14”).

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Amendment).4
Accordingly, the district court’s order, which denied Rook’s habeas petition
under § 2254, is AFFIRMED.
4 We reject Rook’s contention that Washington state courts are “required”—
in contravention of “clearly established Federal law”—to disregard the distinction
between sentences of life with and without the possibility of parole. Rook relies on
State v. Rivers, 921 P.2d 495, 503 (Wash. 1996), in which the court, while assessing
the interjurisdictional factor of its proportionality analysis under Fain, stated that
“the penalties [Rivers could receive in other jurisdictions] vary, but many include
life sentences” and that previously the Washington Supreme Court “held that the
distinction between life sentences with and without parole is not significant.” Rivers
referred to In re Grisby, 853 P.2d 901 (Wash. 1993), in which the Washington
Supreme Court noted that although “[t]he two penalties . . . are substantially similar,”
they are “obviously not identical.” Grisby, 853 P.2d at 905 (citation and italics
omitted). Recognizing that the U.S. Supreme Court’s “majority opinion in Solem is
very fact specific,” the Washington Supreme Court clarified that “[e]ven the most
cursory reading of Solem shows that its references to the disparity of sentences of
life with and without possibility of parole are limited to [the petitioner]’s sentence”
in that case. Id. at 905–07.
But even assuming that Rivers could be interpreted as holding categorically
that a court may disregard the distinction between life sentences with and without
parole in weighing the interjurisdictional, second Fain factor, this is not what the
Washington Court of Appeals did in Rook’s case. The court recognized that Rook
received “a life sentence without parole for his conviction for vehicular assault, a
third serious offense.” While the court stated that Rook’s conduct could be punished
by a merely indeterminate life sentence under California’s “three strikes” law, it also
relied upon a North Carolina statute, N.C. Gen. Stat. § 14-7.12, which punishes
violent habitual felons for life imprisonment without parole, and the fact that Nevada
and Vermont subject offenders to a life sentence without parole for potentially less
serious conduct, albeit after a fourth felony conviction. It thus appears more likely
than not that the Washington Court of Appeals took into consideration the fact that
laws of other states, as applied to conduct similar to Rook’s, would result in a
sentence of life without parole. For these reasons, Rook’s contention is
“incompatible with § 2254(d)’s ‘highly deferential standard for evaluating state-
court rulings,’ which demands that state-court decisions be given the benefit of the
doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal citation omitted).

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