Michael Jessup v. David Shinn ( 2022 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MICHAEL PAUL JESSUP,                              No. 18-16820
    Petitioner-Appellee,
    D.C. No.
    v.                           2:15-cv-01196-
    NVW
    DAVID SHINN, Director; ATTORNEY
    GENERAL FOR THE STATE OF
    ARIZONA,                                            OPINION
    Respondents-Appellants.
    Appeal from the United States District Court
    for the District of Arizona
    Neil V. Wake, District Judge, Presiding
    Argued and Submitted February 9, 2022
    Phoenix, Arizona
    Filed April 21, 2022
    Before: Mary H. Murguia, Chief Judge, Susan P. Graber,
    Circuit Judge, and Sidney A. Fitzwater, * District Judge.
    Opinion by Judge Graber
    *
    The Honorable Sidney A. Fitzwater, United States District Judge
    for the Northern District of Texas, sitting by designation.
    2                        JESSUP V. SHINN
    SUMMARY **
    Habeas Corpus
    The panel reversed the district court’s judgment granting
    habeas corpus relief to Petitioner Michael Paul Jessup, who
    challenged his sentence of life without the possibility of any
    form of release, which an Arizona state court imposed for
    the first-degree murder Petitioner committed when he was
    17 years old.
    The district judge held that the Arizona courts’ denial of
    post-conviction relief was contrary to and an unreasonable
    application of Miller v. Alabama, 
    567 U.S. 460
     (2012), in
    which the Supreme Court held that, before a sentencer may
    impose a sentence of life without parole on a defendant who
    committed a crime as a juvenile, the Eighth Amendment
    requires that the defendant receive an individualized
    sentencing hearing during which the sentencer considers the
    defendant’s youth and its attendant circumstances.
    The state post-conviction court had rejected Petitioner’s
    Miller claim on the ground that, unlike the individuals
    sentenced under the mandatory sentencing schemes at issue
    in Miller, Petitioner in fact received an individualized
    sentencing hearing during which the sentencing judge, after
    considering Petitioner’s youth and its attendant
    circumstances, found Petitioner unsuitable for any form of
    release.
    **
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    JESSUP V. SHINN                        3
    The panel held that the state court’s application of Miller
    was a reasonable one because the sentencing judge
    thoughtfully considered whether Petitioner warranted a
    sentence of life with the possibility of any form of release,
    took into account Petitioner’s youth and the characteristics
    of young people, and concluded that Petitioner warranted a
    sentence of life without the possibility of release.
    Petitioner asserted that under the Arizona statutory
    scheme in effect at time of the murder and at the time of the
    sentencing, there was no practical difference between a
    sentence of natural life and a sentence of life with the
    possibility of release. The panel held that the state court
    reasonably concluded that, despite this practical result,
    Miller does not mandate resentencing. Given Miller’s focus
    on the required procedure, and given the sentencing judge’s
    extensive deliberation here as to whether Petitioner
    warranted a possibility of release, the panel wrote that the
    state post-conviction court reasonably distinguished Miller,
    which addressed situations in which the sentencing authority
    imposed a sentence of life without parole automatically.
    The panel remanded for entry of judgment in favor of the
    State.
    4                     JESSUP V. SHINN
    COUNSEL
    Eliza C. Ybarra (argued), Assistant Attorney General,
    Criminal Appeals Section; J.D. Nielsen, Habeas Unit Chief;
    Mark Brnovich, Attorney General; Office of the Attorney
    General, Phoenix, Arizona; for Respondents-Appellants.
    Keith J. Hilzendeger (argued), Assistant Federal Public
    Defender; Jon M. Sands, Federal Public Defender; Office of
    the Federal Public Defender, Phoenix, Arizona; for
    Petitioner-Appellee.
    OPINION
    GRABER, Circuit Judge:
    Petitioner Michael Paul Jessup was 17 years old when he
    kidnapped, robbed, and murdered a man in Arizona in 1998.
    The next year, he pleaded guilty to first-degree murder in
    Arizona state court. The sentencing judge held an
    individualized sentencing hearing. The judge exercised his
    discretion to impose a sentence of life imprisonment without
    the possibility of any form of release. Although the judge
    weighed among the mitigating factors Petitioner’s youth and
    a psychological report that addressed the characteristics of
    youth, the judge found Petitioner unsuitable for the more
    lenient sentence of life imprisonment with the possibility of
    release.
    In Miller v. Alabama, 
    567 U.S. 460
     (2012), the Supreme
    Court held that, for a defendant who committed a crime as a
    juvenile, the Eighth Amendment permits a sentence of life
    without parole. But before a sentencer may impose that
    harsh sentence on a juvenile offender, the juvenile defendant
    JESSUP V. SHINN                        5
    must receive an individualized sentencing hearing during
    which the sentencer considers the defendant’s youth and its
    attendant circumstances. 
    Id. at 483
    . Petitioner sought post-
    conviction relief in Arizona state court on the ground that his
    sentence violated Miller. The state post-conviction court
    rejected Petitioner’s Miller claim on the ground that, unlike
    the individuals sentenced under the mandatory sentencing
    schemes at issue in Miller, Petitioner in fact received an
    individualized sentencing hearing during which the
    sentencing judge, after considering Petitioner’s youth and its
    attendant circumstances, found Petitioner unsuitable for any
    form of release. Because the state court’s application of
    Miller was a reasonable one, we reverse the district court’s
    grant of habeas relief, and we remand for entry of judgment
    in favor of Respondents, who are state officials (“the State”).
    FACTUAL AND PROCEDURAL HISTORY
    In 1998, when Petitioner was 17 years old, he and a
    companion kidnapped 79-year-old Frank Watkins. They
    forced Watkins into his pickup truck, took his personal
    property, and drove to a remote location. Along the way,
    they stopped to pick up another companion. Once the group
    arrived at a remote area, Petitioner forced Watkins to walk
    to a drainage ditch and then shot him several times in the
    head and face, killing him. Police officers arrested Petitioner
    about ten days later.
    A grand jury indicted Petitioner on five counts, including
    one count of first-degree murder. At the time, Arizona
    Revised Statutes section 13-703(A) listed three potential
    penalties for first-degree murder: (1) death; (2) “natural
    life,” Arizona’s term for life without the possibility of
    release; and (3) life with the possibility of release (in some
    form, such as parole or commutation) after 25 years of
    imprisonment, or after 35 years of imprisonment if the
    6                     JESSUP V. SHINN
    victim was less than 15 years old. 
    Ariz. Rev. Stat. § 13
    -
    703(A) (1998). Petitioner and the prosecutor entered into a
    plea agreement. Petitioner agreed to plead guilty to first-
    degree murder and armed robbery. In exchange, the
    prosecutor agreed not to seek the death penalty and to drop
    the other three charges.
    At the sentencing hearing, the parties debated whether
    Petitioner warranted a sentence of life without the possibility
    of parole or a sentence of life with the possibility of parole
    after 25 years. Petitioner’s lawyer presented testimony by a
    psychologist who emphasized Petitioner’s age and age-
    related characteristics, including Petitioner’s emotional age
    of 12 or 13. Petitioner’s age was not a cursory or tangential
    issue. The psychologist has examined numerous young
    people, and his 24-page, single-spaced report contextualized
    his findings in comparison to other youthful offenders. The
    report described Petitioner as “immature” with “regard to
    impulse control.”        The psychologist explained why
    Petitioner was slow to mature and why he had “a functional
    social level of about 2/3 [his] chronological age.” It also was
    noted that, in general, “[t]he incidence of violence is highest
    in the age group 15–24” and that Petitioner “can be no
    younger than 43 at [the] time of release.” Addressing
    specifically the prospect for a young person’s maturation,
    the report concluded:
    Having little foresight and even less capacity
    for reflection, [Petitioner] has [lived] and is
    likely to continue to live in moments as
    opposed to epochs.          A broadening of
    temporal awareness tends to accompany
    advancement into adulthood, and for this
    reason, I believe that [Petitioner’s] risk of
    violent offense will gradually diminish with
    JESSUP V. SHINN                        7
    maturation – particularly after age 25.
    Eligibility for, application to, and
    granting/denial of parole in any case will
    attend to his psychological condition at the
    point of that decision many years hence. I
    regard the minimum sentence available to the
    court of 25 years to life as sufficient, in the
    case of Michael Jessup, to offer protection to
    the general public.
    Petitioner’s lawyer, too, stressed Petitioner’s youth and his
    ability to reform.
    After much deliberation and weighing of mitigating and
    aggravating factors as to the murder count, the judge
    sentenced Petitioner to natural life:
    So when my choice is between a chance that
    you will be paroled and certainty of knowing
    that you will be in prison for the rest of your
    life, the choice becomes clear to me. I really
    do believe that you forfeited your right to
    walk as a free member of society, again,
    because of the heinousness of the crimes and
    cruelty that you imposed on Mr. Watkins.
    In 2013, Petitioner filed, in state court, a notice of post-
    conviction relief, arguing that his sentence of life without the
    possibility of parole violated Miller. The state trial court
    assumed that Miller applied retroactively, but the court
    denied relief on the ground that the sentencing judge had
    considered Petitioner’s age and age-related characteristics.
    On appeal, the Arizona Court of Appeals also denied relief,
    reasoning in full:
    8                       JESSUP V. SHINN
    Assuming arguendo that Miller applies
    retroactively, Jessup has not shown an
    entitlement to relief.       Miller prohibits
    mandatory life sentences without the
    possibility of parole for juvenile offenders.
    [132 S. Ct.] at 2460. Jessup’s sentence to
    natural life was not mandatory. The superior
    court noted at sentencing that it had the
    option to sentence Jessup either to natural life
    or life with a possibility of release after
    25 years’ imprisonment. See 
    Ariz. Rev. Stat. § 13-703
    (A) (1999). In considering the
    appropriate sentence, the superior court
    found Jessup’s age to be one of several
    mitigating factors. The court also heard from
    a psychologist regarding his presentence
    evaluation of Jessup as a juvenile offender.
    Among other opinions, the psychologist did
    not believe Jessup’s aggressive activity
    would extend into adulthood and his
    appreciation of the wrongfulness of his acts
    would increase with age. The psychologist
    further noted that adolescents do not have the
    same kind of judgment as adults. In short, the
    superior court considered “how children are
    different” and Jessup’s sentence to natural
    life complied with Miller.
    The Arizona Supreme Court summarily denied relief
    without comment.
    In 2015, Petitioner filed this action, asserting that his life
    sentence violates Miller. A magistrate judge recommended
    that the district judge deny the petition. The district judge
    disagreed and granted habeas relief. The district judge held
    JESSUP V. SHINN                       9
    that the Arizona courts’ denial of relief was contrary to and
    an unreasonable application of Miller. The State timely
    appeals.
    STANDARDS OF REVIEW
    We review de novo the district court’s grant of habeas
    relief. Jones v. Davis, 
    8 F.4th 1027
    , 1035 (9th Cir. 2021).
    We review the state court’s decision through the lens of the
    Antiterrorism and Effective Death Penalty Act (“AEDPA”).
    Habeas relief is available only if the state court’s decision
    was contrary to, or an unreasonable application of, Supreme
    Court precedent. 
    28 U.S.C. § 2254
    (d)(1). We consider the
    last reasoned decision by the state courts, Demetrulias v.
    Davis, 
    14 F.4th 898
    , 905 (9th Cir. 2021), here, the Arizona
    Court of Appeals’ decision quoted above. Finally, in
    conducting our review, we consider only Supreme Court
    “precedents as of the time the state court renders its
    decision.” Greene v. Fisher, 
    565 U.S. 34
    , 38 (2011)
    (emphasis and internal quotation marks omitted). The state
    court denied relief to Petitioner in 2015, several years after
    the Supreme Court decided Miller, 
    567 U.S. 460
    .
    DISCUSSION
    In Miller, the Supreme Court considered state statutes
    that required the sentencing judge to impose a mandatory
    sentence of life without parole. 
    Id.
     at 465–69. Because
    sentencing judges lacked discretion to choose anything other
    than a mandatory sentence of life without parole, the
    challenged state statutes prohibited a sentencing judge from
    considering any of the defendant’s individual characteristics,
    including the defendant’s youth and its attendant
    circumstances. 
    Id. at 466
    , 469 (citing 
    Ark. Code Ann. § 5
    -
    4-104(b) (1997) & Ala. Code §§ 13A-5-40(a)(9), 13A-6-
    2(c) (1982)). The Court held that such statutes, when applied
    10                    JESSUP V. SHINN
    to defendants who were juveniles at the time of their crimes,
    violate the Eighth Amendment’s prohibition on cruel and
    unusual punishment. Id. at 465.
    The Court’s reasoning rested on the confluence of two
    lines of cases. Id. at 470. The first set of cases, Roper v.
    Simmons, 
    543 U.S. 551
     (2005), and Graham v. Florida,
    
    560 U.S. 48
     (2010), “establish that children are
    constitutionally different from adults for purposes of
    sentencing.” Miller, 
    567 U.S. at 471
    . “[Y]outh matters in
    determining the appropriateness of a lifetime of
    incarceration without the possibility of parole.” 
    Id. at 473
    .
    The “characteristics of youth . . . weaken rationales for
    punishment [and] can render a life-without-parole sentence
    disproportionate.” 
    Id.
     (emphasis added). State statutes that
    impose mandatory life sentences without any possibility of
    parole “prohibit a sentencing authority from assessing
    whether the law’s harshest term of imprisonment
    proportionately punishes a juvenile offender.” 
    Id. at 474
    .
    The second line of cases, beginning with Woodson v. North
    Carolina, 
    428 U.S. 280
     (1976), “demand[s] individualized
    sentencing when imposing the death penalty.” Miller,
    
    567 U.S. at 475
    . The challenged state statutes’ “mandatory
    penalties, by their nature, preclude a sentencer from taking
    account of an offender’s age and the wealth of characteristics
    and circumstances attendant to it.” 
    Id. at 476
    . Together, the
    two lines of cases “teach that in imposing a State’s harshest
    penalties, a sentencer misses too much if he treats every
    child as an adult.” 
    Id. at 477
    .
    The Court did not ban sentences of life without parole
    for juveniles. But the Court held that, before imposing a
    sentence of life without parole, the sentencer must consider
    the defendant’s individual characteristics, including his or
    her youth. The sentencer must “take into account how
    JESSUP V. SHINN                       11
    children are different, and how those differences counsel
    against irrevocably sentencing them to a lifetime of prison.”
    
    Id. at 480
    . The Court’s decision “mandates only that a
    sentencer follow a certain process—considering an
    offender’s youth and attendant characteristics—before
    imposing [life without parole].” 
    Id. at 483
    .
    Four years later, the Supreme Court held that Miller
    applies retroactively. Montgomery v. Louisiana, 
    577 U.S. 190
    , 206 (2016). And the Court recently held that Miller
    does not mandate any particular factual finding; it requires
    only that the sentencer take into account youth and the
    mitigating qualities of youth. Jones v. Mississippi, 
    141 S. Ct. 1307
    , 1311 (2021); see also United States v. Briones,
    
    18 F.4th 1170
    , 1175–76 (9th Cir. 2021) (holding, on remand
    from the Supreme Court, that the sentencing court complied
    with Miller even though it did not make a factual finding of
    permanent incorrigibility). But because those decisions
    came after the state court denied relief to Petitioner, we do
    not consider them as part of our AEDPA review. Greene,
    
    565 U.S. at 38
    . Instead, we consider whether the state
    court’s denial of post-conviction relief was contrary to, or an
    unreasonable application of, Miller at the time of the state
    court’s decision.
    Miller requires, for a juvenile offender, an individualized
    sentencing hearing during which the sentencing judge
    assesses whether the juvenile defendant warrants a sentence
    of life with the possibility of parole. Here, the sentencing
    judge thoughtfully considered whether Petitioner warranted
    a sentence of life with the possibility of any form of release,
    took into account Petitioner’s youth and the characteristics
    of young people, and concluded that Petitioner warranted a
    sentence of life without the possibility of release. The state
    court did not apply Supreme Court precedent unreasonably
    12                    JESSUP V. SHINN
    when it concluded that the sentencing hearing complied with
    Miller.
    Petitioner’s argument to the contrary rests entirely on an
    analysis of the state’s statutory scheme in 1998, the year of
    the murder. As described above, Arizona Revised Statutes
    section 13-703(A) listed, in 1998, two potential penalties for
    Petitioner’s conviction of first-degree murder once the plea
    agreement took the death penalty off the table: (1) life
    without the possibility of any form of release; and (2) life
    with the possibility of release, including parole, after
    25 years of imprisonment. Petitioner points out that, at the
    time of the murder in 1998 and at the time of the sentencing
    in 1999, persons serving life sentences for crimes committed
    in 1994 or later were ineligible for parole. In 1993, the
    Arizona legislature had eliminated parole for crimes
    committed in 1994 or later, and the legislature had replaced
    parole with a credit system for early release. 1993 Ariz.
    Sess. Laws, ch. 255, §§ 86, 88; see State v. Vera, 
    334 P.3d 754
    , 758–59 (Ariz. Ct. App. 2014) (describing the change).
    Moreover, the early-release credits were unavailable for
    persons serving a life sentence, even if that sentence
    nominally included a possibility of parole. Vera, 334 P.3d
    at 760 & n.8.
    Petitioner asserts that, applying the 1994 legal change to
    Petitioner’s 1999 sentencing, there was no practical
    difference to Petitioner between a sentence of natural life
    and a sentence of life with the possibility of release. A
    sentence of natural life would permit no form of release, and
    a sentence of life with the possibility of release would allow
    commutation, but not parole. In Petitioner’s view, then, both
    sentences would result, as a practical matter, in a sentence of
    life without parole. Indeed, the Supreme Court listed
    Arizona as among the jurisdictions that require sentences of
    JESSUP V. SHINN                       13
    life without parole. Miller, 
    567 U.S. at
    486 n.13. Petitioner
    urges us to conclude that his sentencing hearing thus violated
    Miller.
    We hold that the state court reasonably concluded that,
    despite this practical result, Miller does not mandate a
    resentencing in the circumstances of this case. Miller
    addressed situations in which the sentencing authority
    imposed a sentence of life without parole automatically,
    with no individualized sentencing considerations
    whatsoever. See, e.g., 
    id. at 466
     (Arkansas sentencing
    judge’s statement “that ‘in view of the verdict, there’s only
    one possible punishment’” (brackets omitted)); 
    id.
     at 469
    (citing Miller v. State, 
    63 So. 3d 676
    , 691 (Ala. Crim. App.
    2010)); Miller, 
    63 So. 3d at 691
     (Alabama sentencing court’s
    imposition of life without parole without “individualized
    sentencing or consideration of [evidence in] mitigation”).
    Miller’s focus was on requiring the sentencing judge, before
    sentencing a juvenile to a lifetime of imprisonment, “to take
    into account how children are different, and how those
    differences counsel against irrevocably sentencing them to a
    lifetime in prison.” Miller, 
    567 U.S. at 480
    . That precise
    procedure was followed here, albeit with respect to the
    possibility of any form of release, not just the possibility of
    parole (a single form of release). Given Miller’s focus on
    the required procedure, and given the sentencing judge’s
    extensive deliberation here as to whether Petitioner
    warranted a possibility of release, the state post-conviction
    court reasonably distinguished Miller.
    The sentencing judge here, after fully considering
    Petitioner’s age and other relevant considerations, concluded
    that Petitioner did not warrant any form of release.
    Necessarily, then, the sentencing judge concluded that
    Petitioner did not warrant a possibility of parole, which is
    14                        JESSUP V. SHINN
    one form of release. Nothing in the record suggests that the
    precise form of potential release at issue had any effect on
    the sentencing judge’s exercise of discretion. Much to the
    contrary, the record makes clear that the sentencing judge
    (and everyone else involved) genuinely, if mistakenly,
    thought that he was considering a sentence of life with the
    possibility of parole. 1 The state post-conviction court
    reasonably applied Miller in concluding that no resentencing
    was warranted here.
    Petitioner nevertheless contends that the state court’s
    rejection of his Miller claim was unreasonable because, had
    the court nominally imposed a sentence of life with the
    possibility of release generally or the possibility of parole
    specifically, Arizona’s laws would have prevented him from
    ever being eligible for parole. Petitioner’s assertion about
    the application of state law is questionable at best. Arizona’s
    more recent statutory changes and caselaw make it nearly
    certain that, had the sentencing judge allowed release or
    parole after 25 years, Petitioner would, in fact, be eligible for
    parole. See, e.g., 
    Ariz. Rev. Stat. § 13-716
     (enacted 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
    1
    The misunderstanding by the sentencing judge and everyone else
    involved in Petitioner’s case was apparently common. The Arizona
    reporter is full of cases in which the sentencing judge mistakenly thought
    that he or she had discretion to allow parole. E.g., Chaparro v. Shinn,
    
    459 P.3d 50
    , 52 (Ariz. 2020); Vera, 334 P.3d at 755. A district court
    recently noted that, “[d]espite the elimination of parole, prosecutors
    continued to offer parole in plea agreements, and judges continued to
    accept such agreements and impose sentences of life with the possibility
    of parole.” Viramontes v. Att’y Gen., No. CV-16-00151-TUC-RM, 
    2021 WL 977170
    , at *1 (D. Ariz. Mar. 16, 2021).
    JESSUP V. SHINN                      15
    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.”); Vera, 334 P.3d at
    756–61 (describing the application of section 13-716); see
    also Chaparro, 459 P.3d at 52–55 (holding that a defendant
    who received a sentence of life with the possibility of parole
    in 1995 was parole-eligible, notwithstanding the
    legislature’s elimination of parole); 
    Ariz. Rev. Stat. § 13
    -
    718(A) (enacted in 2018) (providing that a defendant whose
    post-1993 plea agreement stipulated to parole eligibility is
    parole-eligible, notwithstanding the legislature’s elimination
    of parole).
    But even assuming that Petitioner’s doubtful assertion
    about state law is correct, Petitioner has shown only that a
    hypothetical defendant who received a lenient sentence
    would have a strong Miller claim. That is, if a sentencing
    judge determined that a hypothetical defendant warranted
    the possibility of release or parole, but the state courts
    nevertheless refused to permit parole, then that hypothetical
    defendant would have a strong Miller claim. But the reason
    why such a Miller claim would be viable proves why this
    hypothetical does not help Petitioner: that Miller claim
    would have merit because the sentencing judge concluded
    that the defendant warranted a possibility of release or
    parole.      Here, by contrast, the sentencing judge
    determined—considering Petitioner’s age and the
    characteristics of youth—that Petitioner warranted a
    sentence without any possibility of any form of release.
    Accordingly, in Petitioner’s circumstances, it was
    reasonable for the state court to distinguish Miller.
    REVERSED AND REMANDED.
    

Document Info

Docket Number: 18-16820

Filed Date: 4/21/2022

Precedential Status: Precedential

Modified Date: 4/21/2022