Opinion
CV15-01236-PHX-GMS (MHB)
08-27-2024
Jonathan Andrew Arias, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT JUDGE.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Michelle H. Bums United States Magistrate Judge.
Upon referral to this Court for consideration, (Doc. 64), is Respondents' Motion for Reconsideration of the Magistrate Judge's Report and Recommendation. (Doc. 67.) Petitioner has filed a Response. (Doc. 68.) This Court held oral argument on the motion on March 14, 2022, during which Respondents were granted permission to file a reply. (Doc. 71.) On March 23, 2022, Respondents filed a Reply. (Doc. 72.)
“This Court” will refer to the referral Court, and “the Court” will refer to the presiding District Court.
PROCEDURAL BACKGROUND
Petitioner filed his habeas petition on July 2, 2015, raising two claims: (1) his sentence to natural life for offenses committed when Petitioner was a juvenile violated the United States Constitution as set forth in Miller v. Alabama, 567 U.S. 460 (2012), and (2) he was not sentenced in accordance with the provisions of his plea agreement. (Doc. 1 at 6-7.) Eventually Petitioner agreed to dismiss his second claim, leaving his Miller claim as the only issue raised. (Doc. 38.) The proceedings were initially stayed by the Court in order to await the result of Petitioner's state court proceeding and a decision by the U.S. Supreme Court in Montgomery v. Louisiana, 577 U.S. 190 (2016). (Doc. 16.) After Montgomery was decided, the parties briefed the merits of Petitioner's habeas petition, and on August 26, 2016, this Court filed a Report and Recommendation (hereinafter referred to as the “R&R”) recommending the granting of Petitioner's Miller claim and an order that he be released from custody unless the state re-sentenced him in a manner compliant with Miller. (Doc. 40.) The parties filed Objections to the R&R. (Docs. 42, 45.)
The Supreme Court, in Miller, held that “the Eighth Amendment forbids a sentencing scheme that mandates life without possibility of parole for juvenile offenders” and requires a sentencing judge to consider age and other related factors before sentencing a juvenile to lifetime in prison. Miller, 567 U.S. at 479-80.
Prior to the issuance of the aforementioned R&R, Petitioner filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of the Arizona Court of Appeal's denial of his Miller claim. On October 31, 2016, the Supreme Court granted the petition, vacated the Arizona Court of Appeal's ruling, and remanded the case to the Arizona Court of Appeals for further consideration in light of Montgomery. (Doc. 46-2.) On remand, the state waived its right to file supplemental briefing and entered into a stipulation that Petitioner should be re-sentenced in light of the decision in Montgomery and the order of remand by the U.S. Supreme Court. (Doc. 57-2.) In light of this stipulation and the Arizona Court of Appeal's acceptance of the stipulation, Petitioner conceded in this Court that his habeas petition was rendered moot and filed a stipulated motion to voluntarily dismiss his habeas petition. (Doc. 57.) The Court granted the motion on March 2, 2018. (Doc. 58.)
Subsequently, the U.S. Supreme Court decided Jones v. Mississippi, ___ U.S. ___, 141 S.Ct. 1307 (2021). As a result of that decision, the state requested that the trial court -where Petitioner's re-sentencing was pending - relieve it of the stipulation to a re-sentencing entered into in the Arizona Court of Appeals, and vacate the re-sentencing that had been ordered as a result. (Doc. 60-5.) On November 10, 2021, the trial court granted the state's request, vacated the re-sentencing, and dismissed Petitioner's post-conviction proceedings. (Doc. 60-8.) On November 17, 2021, Petitioner filed in this Court a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, in which he asserted that his habeas proceedings should be reopened, as the state had reneged on its agreement to a re-sentencing, a condition precedent to the parties' stipulation to the dismissal of habeas proceedings. (Doc. 61.) The Court granted the motion, and gave leave to Respondents to file the instant Motion to Reconsider this Court's R&R, based “solely upon the issue of whether the U.S. Supreme Court's decision in Jones [] would affect the Report and Recommendation.” (Doc. 66.)
REVISITING THE REPORT AND RECOMMENDATION UNDER JONES
This Court analyzed the merits of Petitioner's Miller claim and found that the trial court's denial of Petitioner's claim was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, and contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court. (Doc. 40.) The unreasonable determination of facts was based upon the trial court's finding that it had considered Petitioner's age at the time of his sentencing - an event that had occurred 10 years earlier - without the benefit of any transcript or other trial court document indicating what the trial court had considered in sentencing Petitioner. Respondents at the time had reported to this Court that, according a representative with the “Reporter's Pool,” the transcript of the sentencing proceeding had not been transcribed, as the court reporter had retired and her notes would likely have been destroyed. (Doc. 28.)
Six years later, and after this Court issued its R&R, Respondents provided the transcript of sentencing to this Court as an attachment to their Motion for Reconsideration. (Doc. 67, Exh. A.) The filing made clear that the transcript was in fact available and filed in the state court on October 17, 2018. (Id., fn. 1; Doc. 67-1 at 1.) Subsequently, at this Court's request, Respondents provided an affidavit from a Reporter Pool representative that describes how the missing notes were discovered and ultimately transcribed, although no explanation was provided as to why the transcript was not filed with this Court until 2022. (Docs. 67-1, 75-1.) The late production of the transcript is important to emphasize, as the lack of this transcript was a focal point in this Court's Miller analysis and conclusion, as set forth herein and in its R&R.
Now having had the opportunity to review the transcript this Court finds that the trial court did consider age and other mitigating factors at the time of Petitioner's sentencing:
The Court's considered, on all counts, the aggravating and mitigating circumstances. The mitigating circumstances being no prior felony convictions, the defendant's age at the time of the occurrences, the difficult life, I've also considered that Mr. Arias had.(Doc. 67-1 at 14.)
The trial court also considered argument by defense counsel regarding Petitioner's ability to change, a report by a mitigation specialist, and statements by Petitioner that he had matured and was not the same person who committed the crimes. (Doc. 67-1 at 8-14.)
The United States Supreme Court in Jones clarified the reaches of the Miller decision as it relates to the constitutionality of sentencing juvenile offenders to natural life imprisonment, holding that Miller did not require that a sentencing court make a “factual finding of permanent incorrigibility,” or that an “on-the-record sentencing explanation is [] necessary to ensure that a sentencer considers a defendant's youth.” Jones, at 1319. Thus, following Jones, and taking into account that the sentencing court did in fact explicitly consider Petitioner's youth and attendant characteristics, this Court reverses its recommendation that Petitioner's habeas petition be granted.
In their motion, Respondents assert that this Court's earlier conclusion that the trial court did not make adequate finding is “lacking.” (Doc. 67 at 3.) This is curious in light of the fact that Respondents stipulated to a re-sentencing after this Court issued its R&R, and in light of the fact that the basis for Respondents' assertion is, in part, the Supreme Court's decision in Jones, which post-dated this Court's disputed conclusion.
NEWLY RAISED STATUTORY CONSTRUCTION ISSUE
Respondents in their Motion, and Petitioner in his Response additionally brief the issue of whether the statutory scheme for first-degree murder at the time of Petitioner's sentencing was unconstitutional pursuant to Miller. The Supreme Court in Miller held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on cruel and unusual punishments.” Miller, 567 U.S. at 465 (internal quotation marks omitted). Petitioner asserts that, at the time of his sentencing, the possibility of a less-than-natural-life sentence was “illusory” due to the abolishment of parole prior to his sentencing. This Court did not address this argument in its R&R because Petitioner did not raise it in his habeas petition. Petitioner also did not address it in his Reply or Response to Respondents' Objections to this Court's R&R. (Docs. 1; 37 at 11-20; 45.) In their Motion for Reconsideration, Respondents do not concede that the issue was raised, but address it “[t]o the extent Arias has argued that Arizona's sentencing scheme was illusory and mandated a term of life imprisonment without the possibility of parole for juvenile offenders.” (Doc. 67.) In their Reply, Respondents state more affirmatively that Petitioner “never previously alleged, let alone argued, that he was entitled to relief pursuant to Miller v. Alabama, 567 U.S. 460 (2012), because Arizona law required the trial court to impose a sentence of life without the possibility of parole.” (Doc. 72.) Respondents nevertheless brief the issue and do not object to the Court's consideration of the issue.
Given that the entire purpose of this Court's revisiting its R&R is to determine whether the decision in Jones would alter this Court's conclusions and recommendation, this Court concludes that it is not required to address any newly raised issue. However, given the fact that Respondents addressed the issue in their Motion for Reconsideration and Reply, and have not argued in their pleadings or at oral argument that the issue is somehow precluded, this Court will address the merits of the issue.
In fact, the Court's referral Order stated that the sole issue on referral was “the issue of whether the U.S. Supreme Court's decision in Jones [] would affect [this Court's R&R].” (Doc. 66.) As emphasized here, this Court's R&R did not address the statutory construction issue.
In 2003, when Petitioner was sentenced, Arizona law required a death or life imprisonment sentence for first-degree murder. A.R.S. § 1105 (2000). The sentencing statute however provided three alternative sentences: death, natural life, or life imprisonment without the possibility of “release[] on any basis” for a certain number of years. Ariz. Rev. Stat. § 703 (A) (Ariz. 1999). Yet, Arizona abolished the parole system eight years earlier “for all offenses committed on or after January 1, 1994.” Chaparro v. Shinn, 459 P.3d 50, 52 (Ariz. 2020) (citing Ariz. Rev. Stat. § 41-1604.09). The abolishment of parole rendered a sentence that carries the possibility of release in reality only a release with the possibility of executive clemency. Lynch v. Arizona, 578 U.S. 613, 615 (2016) (per curiam) (citing State v. Lynch, 357 P.3d 119, 138-39 (Ariz. 2015)). Thus, Petitioner argues, the trial judge did not have the choice to impose a parole eligible sentence as required by Miller, even though the plea agreement indicated that as a sentencing choice, because the choice was “illusory.”
Respondents state that Arizona reinstated parole in 2014:
Notwithstanding any other law, a person who is sentenced to life imprisonment with the possibility of release after serving a minimum number of calendar years for an offense that was committed before the person attained eighteen years of age is eligible for parole on completion of service of the minimum sentence, regardless of whether the offense was committed on or after January 1, 1994.A.R.S. § 13-716 (herein after the “2014 statute”).
Respondents argue that although the sentencing statute at the time of Petitioner's sentencing did not in reality confer the power to impose parole after a number of years for a juvenile defendant, the 2014 statute cured that defect, and any harm that flowed previous to the change only flowed to juveniles who were sentenced to life with the possibility of release after a number of years. That would not include Petitioner. Additionally, Respondents argue that at the time of Petitioner's sentencing, Arizona courts construed the alternative life sentences set forth in § 13-703(A) to be natural life and life with the possibility of parole. See, State v. Wagner, 982 P.2d 270, 273 (Ariz. 1999) (“Arizona's statute . . . states with clarity that the punishment for committing first degree murder is either death, natural life, or life in prison with the possibility of parole.”). They argue that a construction of Miller that would hold otherwise would be directly contradictory to state supreme court interpretation of its own statue. See Johnson v. Fankell, 520 U.S. 911, 916 (1997) (neither the Supreme Court, nor “any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State”).
Petitioner cites State v. Valencia, 386 P.3d 392, 396 (Ariz. 2016), a case in which the Arizona Supreme Court held that the 2014 statute did not cure any Miller violation for “inmates serving natural life sentences for murders committed by juveniles.” The court reasoned that although A.R.S. § 13-703(A) provided the court with the alternative of imposing a life sentence or a life sentence without eligibility for release “until the completion of the service of twenty-five calendar years,” in reality the only option was a life sentence without parole. Valencia, 386 P.3d at 395 (“The natural life sentences at issue thus were not mandated by the statute but did amount to sentences of life without the possibility of parole” because parole had been eliminated.). Thus, Petitioner argues, the statute under which Petitioner was sentenced was unconstitutional and the state's later re-institution of parole did not cure the constitutional error, as parole was not made available for defendants serving a natural life sentence. The Valencia court remanded for resentencing to allow defendant “to establish, by a preponderance of the evidence, that their crimes did not reflect irreparable corruption but instead transient immaturity.” Id. at 396.
Valencia was subsequently re-sentenced in 2019 to life without the possibility of parole after twenty-five years. State v. Valencia, 2022 WL 852714 ¶2 (Ariz. App. 2022) (unpublished decision).
Petitioner also cites Lynch, 578 U.S. 613 (2016) in support of its assertion that the statutory scheme in place when Petitioner was sentenced did not confer an option of parole for any sentence. The Supreme Court in Lynch however, addressed the issue of whether a capital jury instruction that provided that a defendant not sentenced to death would alternatively be given a life without parole sentence would apply to Arizona's first-degree murder statute which technically provided the option of a life sentence with eligibility for parole. The Supreme Court held that it would because “Arizona law currently prevents all felons who committed their offenses after 1993 from obtaining parole.” Lynch, 578 at 616.
Respondents cite State v. Wagner for the opposite proposition, that A.R.S. § 13-703(A) provided the alternative punishments for first-degree murder to be “death, natural life, or life in prison with the possibility of parole.” 982 P.2d 270, 273 (Ariz. 1999). Respondents argue that Wagner governs this Court's analysis, not Lynch, as it was the controlling authority at the time of Petitioner's sentence. Yet, Wagner was a case involving a challenge to the statute as void for vagueness, and did not involve a challenge to the statute pursuant to Miller. In any case, it is clear that neither Lynch nor Wagner are decisions that directly address the issue before this Court.
Undisputably, the Miller decision provided relief to defendants sentenced to life without the opportunity for parole after 25 years (prior to the reinstatement of parole in Arizona), and various courts have held so. State v. Vera, 334 P.3d 754 (Ariz. App. 2014) (defendant re-sentenced to life with possibility of parole after 25 years) (affd in a Memorandum decision in State v. Vera, 804 Fed.Appx. 572 (2020)); State v. Randles, 334 P.3d 730 (Ariz. App. 2014). It is also clear that in Petitioner's case the record reflects that the trial court and the parties believed that the court had the option of sentencing Petitioner to a life with parole sentence. The discreet question remaining is whether the statutory scheme was unconstitutional under Miller because the un-exercised choice of a life with parole sentence was illusory as Petitioner claims. The Arizona Supreme Court in Valencia has held that it was, and at least one Arizona District Court has agreed. See, Jessup v. Ryan, No. CV-15-01196-PHX-NVW (JZB), 2018 WL 4095130 (D. Ariz. Aug. 28, 2018). The defendant in Jessup had also been sentenced to natural life pursuant to a plea agreement that gave the court the option of a life with parole sentence pursuant to A.R.S. § 13-703(A). The District Court in finding the statutory provision unconstitutional reasoned:
The plea agreement defined a “life sentence” to mean that “Defendant shall not be released on any basis until the completion of the service of twenty-five calendar years.” (Doc. 17-1 at 12.)
The sentencing judge had no other choice, though the plea agreement misled him into thinking he did. Miller requires an actual choice to deny parole and real exercise of that discretion. Jessup's sentence and the decision of the Arizona Court of Appeals
directly conflict with the categorical rule of Miller that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment prohibition on cruel and unusual punishments.” 567 U.S. at 465 (internal quotation marks omitted).
Despite the sentencing judge thinking he had a choice of parole or no parole, Arizona law gave him no choice. The State of Arizona had abolished parole for crimes committed after January 1, 1994. 1993 Ariz. Sess. Laws, ch. 255 § 86; State v. Vera, 235 Ariz. 571, 575, 334 P.3d 754, 758 (Ct. App. 2014). The abolition was done in two steps. First, the authority of the Board of Executive Clemency to grant paroles was abolished for crimes after January 1, 1994. Second, a system of earned release credit was enacted in its place. The system of earned release credits cannot be applied to a life sentence. See Vera, 235 Ariz. at 575, 334 P.3d at 758. The Board's authority for parole remained for sentences and crimes before January 1, 1994. Though sentencing statutes remained on the books, including parole for some crimes, that was necessary for crimes committed before January 1, 1994, and prosecuted after. The Arizona Court of Appeals did not recognize that the sentencing judge's choice of parole was empty because there was no authority to implement parole for Jessup's crime. Therefore, the life sentence without parole was mandatory. The ruling is “contrary to . . .clearly established Federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
* * *
The partially curative statute [reinstating parole] validated the possibility of parole for those juveniles whose sentences illegally purported to allow parole. But the statute did nothing to cure the federal unconstitutionality of juvenile life sentences that in reality were mandatorily without parole, even though the sentencing judge mistakenly thought he could sentence to parole and expressed his agreement with the mandatory life sentence without possibility of parole.Jessup, 2018 WL 4095130 **7-8.
The District Court in Jessup granted habeas relief and remanded for re-sentencing. Respondents appealed that ruling and the Ninth Circuit Court of Appeals held oral argument on February 9, 2022. Jessup v. Shinn, et. al., Ninth Circuit No. 18-16820. A decision remains pending before that court.
Weighing the Arizona State Supreme Court decision in Valencia and the decision of another court in this District in Jessup, against no authority clearly to the contrary, this Court is inclined to follow the reasoning of those courts and recommend that the Court grant relief on Petitioner's statutory construction claim. Given the pending decision in the Ninth Circuit, however, this Court will recommend that any ruling on the issue be stayed pending the outcome. Petitioner is serving a 54-year sentence in addition to the two life sentences he received so would not be prejudiced by a stay of proceedings.
CONCLUSION
This Court has reconsidered its R&R and finds that its conclusion that Petitioner's Miller claim had merit is no longer correct given the United States Supreme Court's decision in Jones and the newly acquired sentencing transcript, and now recommends that the Court decline to adopt the R&R. This Court also having analyzed the merits of the parties' statutory construction claim under Miller and, finding the claim has merit, will recommend that the Court stay its review of that finding until the Ninth Circuit Court of Appeals issues its decision in Jessup v. Shinn, et. al., Ninth Circuit No. 18-16820.
IT IS THEREFORE RECOMMENDED that the Court DENY this Court's Report and Recommendation that Petitioner's habeas petition be granted (Doc. 40).
IT IS FURTHER RECOMMENDED that the Court consider the substance of the statutory construction claim raised by the Parties, and STAY any ruling on the issue pending the Ninth Circuit Court of Appeals' decision in Jessup v. Shinn, et. al., Ninth Circuit No. 1816820.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.