Michelle Taylor v. Carolyn Myles

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELLE TAYLOR,
Petitioner-Appellant,
v.
CAROLYN MYLES,
Respondent-Appellee.
No. 17-15522
D.C. No.
3:13-cv-00035-MMD-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted December 19, 2018
San Francisco, California
Before: M. SMITH and NGUYEN, Circuit Judges, and RESTANI,** Judge.
Petitioner Michelle Taylor appeals the denial of her petition for writ of
habeas corpus. Taylor challenges her life sentence with the possibility of parole
after ten years as a violation of the Eighth Amendment prohibition against cruel
and unusual punishment. We have jurisdiction under 28 U.S.C. § 2253 and we
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
FILED
JAN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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affirm.
On direct appeal, the Nevada Supreme Court held that Taylor’s sentence was
not grossly disproportionate to her offense. Because we conclude that Taylor’s
Eighth Amendment claim fails even under de novo review, we do not need to
decide whether the Nevada Supreme Court’s decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law,” pursuant
to the Anti-Terrorism and Effective Death Penalty Act of 1996 § 104, 28 U.S.C. §
2254(d)(1) (2012). See Norris v. Morgan, 622 F.3d 1276, 1290 (9th Cir. 2010)
(citing Frantz v. Hazey, 533 F.3d 724, 735–37 (9th Cir. 2008) (en banc)).
The Cruel and Unusual Punishments Clause prohibits “extreme sentences
that are ‘grossly disproportionate’ to the crime.” Graham v. Florida, 560 U.S. 48,
59–60 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)
(Kennedy, J., concurring in part and concurring in judgment)). “A [reviewing]
court must begin by comparing the gravity of the offense and the severity of the
sentence.” Id. at 60. This threshold comparison “can consider the penological
justifications for the State’s sentencing scheme, [the offender’s] mental state and
motive in committing the crime, [and] the actual harm caused to his victim or to
society by his conduct, as well as [t]he absolute magnitude of the crime.” Norris,
622 F.3d at 1290 (internal citations and quotations omitted, alterations in original).
In Solem v. Helm, the Supreme Court held unconstitutional a life without

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parole sentence for a defendant’s seventh nonviolent felony, uttering a $100 “no
account” check, reasoning that it was “one of the most passive felonies a person
could commit.” 463 U.S. 277, 296 (1983). In Harmelin, however, the Court
upheld a life without parole sentence imposed on a first-time offender for the
possession of a large quantity of cocaine. 501 U.S. at 996. Similarly, in Norris,
this court upheld a life without parole sentence for a defendant’s second sexual
offense against a minor child. 622 F.3d at 1296.
Although Taylor’s sentence is no doubt severe, it is not “grossly
disproportionate” to the offense of lewdness with a child under fourteen years of
age. In an incident lasting about twenty-five minutes, Taylor made sexual
advances towards a thirteen-year-old child. She straddled and kissed him,
attempted to take his clothes off, and forced him to touch her breasts. The victim
was forced to resist Taylor’s advances. Unlike the defendant’s crime in Solem,
Taylor’s crime affected a victim, especially a young and vulnerable one. It was not
one of the most passive felonies possible. See Solem, 463 U.S. at 296. Indeed,
this court has found “[t]he impact of [child molestation] on the lives of its victims
[to be] extraordinarily severe.” See Norris, 622 F.3d at 1294 (quoting Cacoperdo
v. Demosthenes, 37 F.3d 504, 508 (9th Cir. 1994)). Given the potential for long-
lasting emotional and psychological harm, the Nevada legislature had a reasonable
basis for believing that such severe sentences would help protect minor children

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from sexual offenses. Moreover, a sentence of life with the possibility of parole
after ten years does not completely deprive Taylor of her liberty without the
possibility for rehabilitation and release and is less severe than the life without
parole sentence imposed in Norris. Because we do not find an inference of gross
disproportionality, an intra- and inter-jurisdictional comparison of sentences is not
required. See Harmelin, 501 U.S. at 1005. Accordingly, we conclude that
Taylor’s sentence does not violate the Eighth Amendment.
AFFIRMED.

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