Thomas v. Stitt ( 2022 )

Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 1, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
DWAIN EDWARD THOMAS,
Plaintiff - Appellant,
v. No. 21-6011
(D.C. No. 5:20-CV-00944-D)
KEVIN STITT, Governor; STEVEN (W.D. Okla.)
BICKLEY, Executive Director of the
Oklahoma Pardon and Parole Board; T.
HASTINGS SIEGFRIED, Chair of the
Oklahoma Board of Corrections; SCOTT
CROW, Director of the Oklahoma
Department of Corrections,
Defendants - Appellees.
--------------------------
CAMPAIGN FOR THE FAIR
SENTENCING OF YOUTH,
Amici Curiae.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Dwain Edward Thomas, an Oklahoma state prisoner, appeals from the district
court’s order dismissing his 42 U.S.C. § 1983 complaint on screening under
28 U.S.C. § 1915A(a)-(b)(1) for failure to state a claim upon which relief may be
granted. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for
further proceedings consistent with this order and judgment.
I. INTRODUCTION
Mr. Thomas filed suit against the Governor of Oklahoma, the Executive
Director of the Oklahoma Pardon and Parole Board (PPB), the Chair of the Oklahoma
Board of Corrections, and the Director of the Oklahoma Department of Corrections
(DOC) claiming that Okla. Stat. tit. 57, § 332.7—Oklahoma’s statute governing
parole consideration—is unconstitutional as applied to juvenile homicide offenders
sentenced to life. Mr. Thomas alleges that Oklahoma’s parole system is
unconstitutional under the Eighth Amendment and Article II, § 9 of the Oklahoma
Constitution because it fails to provide a meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation as required by the Supreme
Court’s juvenile-sentencing precedents.
A magistrate judge screened the complaint and issued a report and
recommendation to dismiss the complaint for failure to state a claim upon which
relief may be granted. See § 1915A(a)-(b)(1). Mr. Thomas filed timely objections.
The district court conducted a de novo review, overruled the objections, and
adopted the magistrate judge’s recommendation. The court found that Mr. Thomas
failed to state a claim for relief under the Eighth Amendment and declined to exercise
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supplemental jurisdiction over his claim under the Oklahoma Constitution.
Accordingly, the court dismissed the complaint. Mr. Thomas appeals.
II. MR. THOMAS’S COMPLAINT
In 1997, when he was 15 years old, Mr. Thomas pled guilty to three homicide
offenses—one count of first-degree murder and two counts of murder. Under the
sentencing scheme applicable at the time, the court was required to impose
mandatory life sentences. As such, Mr. Thomas was sentenced without any
individualized decision that considered his youth or other attendant characteristics.
Mr. Thomas was eligible for parole consideration after serving fifteen years of each
sentence.
Mr. Thomas alleges that throughout more than two decades in prison, he has
consistently demonstrated good behavior. He has received “Excellent” or
“Outstanding” ratings in all aspects of the “current patterns of behavior” section of
his periodic “Adjustment Review” from the Department of Corrections (DOC). Aplt.
App. at 39 (internal quotation marks omitted). Moreover, since at least 2003, Mr.
Thomas has maintained “Level IV” privilege status—the highest level an inmate may
achieve under relevant operations procedures. Id. at 7. He works as a technician for
the facility maintenance department—a position he has held for more than eighteen
years—and has also achieved several certifications. In summary, Mr. Thomas
maintains that he has been a model prisoner.
Mr. Thomas has been considered for and denied parole on four occasions. On
each occasion, his parole investigators have given favorable recommendations to the
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PPB based on his demonstrated good behavior. Moreover, “DOC classification
counselors assessing [his] readiness for parole have [repeatedly] noted his
‘excellent’ record and observed that the only issue hindering his release is the State’s
parole system.” Id. at 38. Mr. Thomas further maintains that “[n]othing in [his]
record suggests, nor was any finding ever made, that his crime reflected that he was
among the rarest juveniles whose crime reflects permanent incorrigibility.” Id. at 37
(brackets and internal quotation marks omitted).
Despite his excellent record, Mr. Thomas has never progressed past the first
stage of parole review. To the best of his knowledge, the PPB has refused to
recommend him for parole solely due to the “aggravating factors associated with the
original crime.” Id. at 13, 26, 36 (internal quotation marks omitted).
Turning to Oklahoma’s parole system, Mr. Thomas states that PPB regulations
establish only the timing of parole review and a two-stage review process. “The first
stage is a ‘jacket review,’” when the PPB votes on whether to pass the offender to
stage two. Id. at 28. At stage two, the PPB votes to determine whether to
recommend parole.
According to Mr. Thomas, these threadbare regulations make no distinctions
or accommodations for individuals who committed crimes as juveniles. And to make
matters worse, Mr. Thomas alleges “PPB’s practices penalize [juvenile offenders] by
relying on risk assessment tools that assess the individual as if frozen in time upon
their arrival,” and, as such, do not consider their “maturation over time,
accomplishments, or institutional record[s].” Id. at 29. Further, there are no
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evidentiary rules, no right to obtain expert assistance or testimony, no cross-
examination, no compulsory process, no assistance of counsel, no right to challenge
the accuracy of any information in the PPB’s file, and no right to an explanation.
Mr. Thomas alleges that the authority to grant parole to any person convicted
of a violent crime, rests exclusively with the Governor. Although the law
contemplates that the Governor’s parole power may be constrained, according to
Mr. Thomas, no constraints or enforceable standards have ever been adopted. This
means the Governor can reject the PPB’s recommendation for any reason, without
any explanation or opportunity for review.
III. LEGAL FRAMEWORK
Mr. Thomas’s claims are based on a series of Supreme Court cases beginning
with Roper v. Simmons, 543 U.S. 551 (2005), followed by Graham v. Florida, 560
U.S. 48 (2010), continuing in Miller v. Alabama, 567 U.S. 460 (2012) and
Montgomery v. Louisiana, 577 U.S. 190 (2016), and addressed most recently in Jones
v. Mississippi, 141 S. Ct. 1307 (2021). Collectively, these cases frame the contours
of the Eighth Amendment as applied to the sentencing of juvenile offenders.
Roper held that the Eighth Amendment prohibits sentencing juvenile offenders
to death. See 543 U.S. at 568. Building on Roper, which recognized the lesser
culpability of juveniles and their capacity for change, Graham held that the Eighth
Amendment categorically bars sentencing juvenile offenders to life without parole
for non-homicide offenses. See 560 U.S. at 74.
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In Miller, the Court extended its reasoning in Graham to hold that the Eighth
Amendment prohibits imposing a mandatory sentence of life without parole on a
juvenile homicide offender. See 567 U.S. at 479. Based on its recognition that a
lifetime in prison is a disproportionate sentence for all but those juveniles whose
crimes reflect “irreparable corruption,” id. at 479-80, the Court held that that
“mandatory penalty schemes” that “remov[e] youth from the balance” and “prevent
the sentencer from taking account of these central considerations,” are
unconstitutional, id. at 474. While this does not mean that “‘[a] State is . . . required
to guarantee eventual freedom,’ [it] must provide ‘some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.’” Id. at 479(quoting Graham, 560 U.S. at 75).
In Montgomery, the Court gave retroactive effect to Miller’s rule that “life
without parole [is] an unconstitutional penalty for a class of defendants because of
their status—that is, juvenile offenders whose crimes reflect the transient immaturity
of youth.” 577 U.S. at 208. When the State has imposed a mandatory sentence of
life without parole on a homicide juvenile offender, it can cure that violation in one
of two ways: (1) the State can conduct an individualized sentencing proceeding and
resentence the offender to life without parole if it follows a process that considers
youth and its attendant characteristics 1 or (2) the State can allow juvenile homicide
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See Jones v. Mississippi, 141 S. Ct. 1307, 1311 (2021) (holding that before
sentencing a juvenile homicide offender to life without parole, a sentencer must
“consider an offender’s youth and attendant characteristics,” but need not make a
specific finding regarding incorrigibility)
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offenders to be considered for parole. See id. at 212. “Allowing those offenders to
be considered for parole ensures that juveniles whose crimes reflected only transient
immaturity—and those who have since matured—will not be forced to serve a
disproportionate sentence in violation of the Eighth Amendment.” Id. “Those
prisoners who have shown an inability to reform will continue to serve life
sentences,” while “[t]he opportunity for release will be afforded to those who
demonstrate the truth of Miller’s central intuition—that children who commit even
heinous crimes are capable of change.” Id.Relying on these precedents, Mr. Thomas maintains that it is not enough for
Oklahoma to impose a life sentence that makes him eligible for parole; instead, the
State must operate a system that provides what the Eighth Amendment requires—a
meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation. He further alleges that Oklahoma’s ad hoc system of executive
clemency falls woefully short.
IV. STANDARD OF REVIEW
“Dismissal for failure to state a claim is a legal question we review de novo.”
Young v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). Our review is “for
plausibility; that is, whether the complaint includes enough [well-pleaded] facts to
state a claim to relief that is plausible on its face.” Id. (internal quotation marks
omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“When there are well-
pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.”).
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A claim is facially plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin
to a probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (internal quotation marks omitted).
V. ANALYSIS
The district court determined that Mr. Thomas’s complaint failed to state a
claim for relief under the Eighth Amendment claim for three reasons. First, the court
found “Graham’s holding” that “juvenile nonhomicide offenders must be afforded
some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation” applies only “to offenders convicted of non-homicide offenses.” Aplt.
App. at 110 (internal quotation marks omitted). The court thus concluded that “to
the extent Graham” requires a state parole system to provide a meaningful
opportunity to obtain release, “th[at] requirement[] do[es] not extend to juvenile
homicide offenders such as [Mr. Thomas].” Id. But as the Supreme Court explained
in Miller, “Graham’s reasoning implicates any life-without-parole sentence imposed
on a juvenile, even as its categorical bar [against life sentences without parole]
relates only to nonhomicide offenses.” 567 U.S. at 473.
Second, the district court found that although “Miller . . . prohibits mandatory
life-without-parole sentences for juvenile offenders” and “Montgomery . . . provided
that a Miller violation could be remedied by permitting juvenile homicide offenders
to be considered for parole,” neither case “expanded existing parole procedures for
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persons convicted as juveniles.” Aplt. App. at 110-11. But the Supreme Court has
not specifically addressed Mr. Thomas’s argument—whether the Eighth Amendment
requires the State to operate a parole system that affords a meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation, or whether simply
making a juvenile lifer eligible for parole is enough. Also, a fair reading of the cases
does not foreclose Mr. Thomas’s claims.
Last, the district court found that “while Miller’s holding included a
procedural component in that it requires a sentencer to consider a juvenile offender’s
youth and attendant characteristics before determining that life without parole is a
proportionate sentence, that procedure was not violated here because [Mr. Thomas]
was not sentenced to life without parole.” Id. at 111 (internal quotation marks
omitted). Or as Mr. Thomas frames the order:
[T]he district court held that as long as a state on paper offers a purported
“parole” system for juvenile homicide offenders, that state has satisfied its
constitutional obligations even if that system operates as a wholly arbitrary
system of ad hoc executive clemency that provides no meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.
Aplt. Opening Br. at 24.
Regardless of how the district court’s order is framed, it purports to address
complex issues of first impression without an opportunity for the parties to develop
the facts and their legal arguments. Our careful review of Mr. Thomas’s complaint
and his arguments on appeal convinces us that he has stated plausible claims for
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relief. This is not to say that Mr. Thomas will prevail; however, the complaint
contains enough well-pleaded facts to plausibly entitle him to relief.
VI. CONCLUSION
The district court’s order dismissing Mr. Thomas’s complaint is vacated, and
the case remanded for further proceedings consistent with this order and judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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