Kenneth Jeremy Laird v. Charles L Ryan, et al.

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Kenneth Jeremy Laird, No. CV-17-00482-PHX-JAT (BSB)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 On February 14, 2017, Petitioner Kenneth Jeremy Laird filed a Petition for Writ of 16 Habeas Corpus, pursuant to 28 U.S.C. § 2254, and argued that his sentence imposed in 17 the Maricopa County Superior Court violates the Eighth Amendment, as applied in 18 Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012). 19 (Doc. 1.) On Petitioner’s motion, the Court stayed this proceeding pending the 20 completion of state court review. (Docs. 10, 11.) After the state court proceedings 21 concluded, the Court lifted the stay on September 12, 2017, and set a briefing schedule. 22 (Docs. 14, 15.) The petition is fully briefed. (Docs. 16, 31.) As set forth below, the 23 Court recommends that the petition be denied. 24 I. Factual and Procedural Background 25 In 1994, a jury found Petitioner guilty of one count each of first-degree murder, 26 kidnapping, first-degree burglary, and robbery, three counts of theft, four counts of 27 forgery, and three counts of trafficking in stolen property. (Exs. A, B.)1 Petitioner was a

28 1 Citations to “Ex.” are to the exhibits to Respondents’ answer to the petition for writ of habeas corpus. (Docs. 17-28.) 1 juvenile at the time of the offenses. (Id.) The trial court sentenced Petitioner to death on 2 the first-degree murder conviction (Count I), and to an aggregate term of 129 years’ 3 imprisonment on the remaining counts of conviction.2 (Ex. B; Doc. 1 at 4.) Based on the 4 Supreme Court’s decision in Roper v. Simmons, 543 U.S. 551 (2005), in April 2005, the 5 parties stipulated that Petitioner’s death sentence on Count I was unconstitutional. 6 (Ex. II.) The trial court accepted the stipulation. (Id.) Thus, Petitioner’s death sentence 7 was vacated, and he was resentenced to life imprisonment with the possibility of release 8 after serving twenty-five years’ imprisonment on the first-degree murder conviction. 9 (Doc. 1 at 2; Ex. II.) The court ordered that Petitioner’s sentence on Count I run 10 consecutively to his other sentences. (Ex. JJ.) 11 In June 25, 2012, the United States Supreme Court decided Miller v. Alabama, and 12 held that “the Eighth Amendment forbids a sentencing scheme that mandates life in 13 prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at 479. In 14 Miller, the Supreme Court did not foreclose the imposition of life without parole on a 15 juvenile homicide defendant, but explained that a judge’s exercise of discretion in 16 imposing such a sentence must “take into account how children are different, and how 17 those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. 18 at 479-80. 19 On June 19, 2013, Petitioner filed a notice of post-conviction relief in the state 20 court arguing that Miller was a significant change in the law that would probably 21 overturn his sentence for “mandatory life without parole.” (Ex. OO.) On July 23, 2014, 22 after the parties briefed whether Miller applied retroactively and whether Petitioner 23 24

25 2 Petitioner was sentenced to 21 years’ imprisonment on the kidnapping conviction, 21 26 years’ imprisonment on the first-degree burglary conviction, five years’ imprisonment on each forgery conviction (Counts V, VI, VII, VIII), five years’ imprisonment on the 27 robbery conviction, ten years’ imprisonment on each theft conviction (Counts IV, XII and XIII), and 14 years’ imprisonment on each conviction for trafficking in stolen property 28 (Counts XIV, XV, XVI). (Ex. B.) The trial court ordered that several of the sentences run concurrently. (Id.) 1 presented a cognizable claim for relief, the trial court denied relief. (Exs. QQ, RR, SS, 2 TT.) Petitioner sought review in the Arizona Court of Appeals. (Ex. UU.) 3 While Petitioner’s appeal was pending, on January 25, 2016, the Supreme Court 4 decided Montgomery v. Louisiana, ___ U.S. ___ 136 S. Ct. 718, 737 (2016), and held 5 that Miller announced a new, substantive rule of law that was retroactive on collateral 6 review. On October 4, 2016, the Arizona Court of Appeals granted review, but denied 7 relief.3 (Ex. XX.) Petitioner filed a petition for review in the Arizona Supreme Court. 8 (Ex. YY.) On August 30, 2017, the Arizona Supreme Court denied review.4 (Ex. ZZ.) 9 II. Petitioner’s Claim 10 In the petition before this Court, Petitioner argues that his consecutive sentences, 11 which result in an aggregate sentence of 154 years to life imprisonment, are the 12 functional equivalent of a sentence of life without parole and, therefore, violate the 13 Eighth Amendment under Graham and Miller. (Doc. 1 at 7.) Petitioner presented this 14 same claim to the state court on post-conviction review. (Ex. UU.) The Arizona Court of 15 Appeals rejected this claim. (Ex. XX.) 16 A. Federal Habeas Review of Claims Adjudicated on the Merits 17 Under § 2254(d), a federal court cannot grant habeas corpus relief unless the 18 petitioner shows: (1) that the state court’s decision “was contrary to” federal law as 19 clearly established in the holdings of the Supreme Court at the time of the state court 20 3 The appellate court noted that Petitioner did not raise the issue of the length of his 21 aggregate sentences until his reply in the trial court and that the trial court did not address that issue. (Ex. XX at 3 n.3.) The court could not determine why the trial court had not 22 addressed that issue, but declined to find the issue not properly before it. (Id.)

23 4 On January 25, 2017, Petitioner filed a notice of post-conviction relief in state court arguing that his consecutive sentences are the functional equivalent of a life sentence 24 without the possibility of parole in violation of the Eighth Amendment. (Ex. AAA.) Petitioner argues that his Rule 32 petition is properly before the state court because 25 Miller, Montgomery, and State v. Valencia/Healer, 386 P.3d 392 (Ariz. 2016), constituted a significant change in the law that would probably overturn his sentences. (Ex. AAA.) 26 The post-conviction court appointed counsel to represent Petitioner, and several defendants who had asserted similar claims, and consolidated these defendants’ cases. 27 (Ex. BBB.) The post-conviction court stayed the proceeding pending the outcome of a petition for writ of certiorari in Valencia. (Ex. CCC.) Neither Petitioner nor Respondent 28 argue that this matter should be stayed pending the outcome of the latest state court proceeding. 1 decision, or (2) that it “involved an unreasonable application of” such law, § 2254(d)(1); 2 or (3) that it “was based on an unreasonable determination of the facts” based on the 3 record before the state court. 28 U.S.C. § 2254(d)(2). This standard is “difficult to 4 meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is a “highly deferential 5 standard for evaluating state court rulings, which demands that state court decisions be 6 given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per 7 curiam) (citation and internal quotation marks omitted). When evaluating state court 8 decisions on habeas review, federal courts look through summary or unexplained higher 9 state court opinion to the last reasoned decision on the claim. Robinson v. Ignacio, 360 10 F.3d 1044, 1055 (9th Cir. 2004). 11 To determine whether a state court ruling was “contrary to” or involved an 12 “unreasonable application” of federal law, courts look exclusively to the holdings of the 13 Supreme Court that existed at the time of the state court’s decision. Greene v. Fisher, 14 565 U.S. 34, 38 (2011). A state court’s decision is “contrary to” federal law if it applies a 15 rule of law “that contradicts the governing law set forth in [Supreme Court] cases or if it 16 confronts a set of facts that are materially indistinguishable from a decision of [the 17 Supreme Court] and nevertheless arrives at a result different from [Supreme Court] 18 precedent.” Mitchell v. Esparza, 540 U.S 12, 14 (2003) (citations omitted). A state court 19 decision is an “unreasonable application of” federal law if the court identifies the correct 20 legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. 21 Payton, 544 U.S. 133, 141 (2005). “A state court’s determination that a claim lacks merit 22 precludes federal habeas relief so long as ‘fairminded jurists could disagree on the 23 correctness of the state court’s decision.’” Richter, 562 U.S. at 101 (citing Yarborough v. 24 Alvarado, 541 U.S. 652, 664 (2004)). 25 Federal courts may also grant habeas corpus relief when the state court decision 26 “was based on an unreasonable determination of the facts in light of the evidence 27 presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). “Or, to put it 28 conversely, a federal court may not second-guess a state court’s fact-finding process 1 unless, after review of the state-court record, it determines that the state court was not 2 merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999 (9th 3 Cir. 2004), abrogated on other grounds, Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 4 2014); see also Pollard v. Galaza, 290 F.3d 1030, 1033, 1035 (9th Cir. 2002) (the 5 statutory presumption of correctness applies to findings by both trial courts and appellate 6 courts). Additionally, state court findings of fact are presumed to be correct. 28 U.S.C. 7 § 2254(e)(1). A petitioner may rebut this presumption with “clear and convincing 8 evidence.” Id. “A state court’s factual findings are unreasonable if ‘reasonable minds 9 reviewing the record’ could not agree with them.” Ayala v. Chappell, 829 F.3d 1081, 10 1094 (9th Cir. 2016) (quoting Brumfield v. Cain, ___ U.S. ___, 135 S. Ct. 2269, 2277 11 (2015)). 12 When a state court decision is deemed to be contrary to, or an unreasonable 13 application of, clearly established federal law or based on an unreasonable determination 14 of the facts, a petitioner is not entitled to habeas corpus relief unless the erroneous state 15 court ruling also resulted in actual prejudice as defined in Brecht v. Abrahamson, 507 16 U.S. 619, 637 (1993). See Benn v. Lambert, 283 F.3d 1040, 1052 n.6 (9th Cir. 2002). 17 “Actual prejudice” means that the constitutional error at issue had a “substantial and 18 injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 631. 19 B. Petitioner is Not Entitled to Habeas Corpus Relief. 20 As set forth above, Petitioner argues that his consecutive sentences, which result in 21 an aggregate sentence of 154 years to life imprisonment, are the functional equivalent of 22 a sentence of life without parole and, therefore, violate the Eighth Amendment under 23 Graham and Miller. (Doc. 1 at 7.) Respondents argue that Petitioner cannot show that 24 the state court’s rejection of this claim is contrary to, or an unreasonable application of, 25 clearly established federal law and, therefore, he is not entitled to habeas corpus relief. 26 (Doc. 16.) As set forth below, the Court agrees with Respondents. 27 “The threshold question under AEDPA is whether [the petitioner] seeks to apply a 28 rule of law that was clearly established” at the time of the state court decision. Williams 1 v. Taylor, 529 U.S. 362, 390 (2000). “Clearly established” federal law consists of the 2 holdings, not dicta, of the Supreme Court. See White v. Woodall, ___ U.S. ___, 134 3 S. Ct. 1697, 1702 (2014); Carey v Musladin, 549 U.S. 70, 74 (2006). Habeas relief 4 cannot be granted if the Supreme Court has not “broken sufficient legal ground” on a 5 constitutional principle advanced by a petitioner, even if lower federal courts have 6 decided the issue. Williams, 529 U.S. at 381. However, although only Supreme Court 7 authority is binding, circuit court precedent may be “persuasive” in determining what law 8 is clearly established and whether a state court applied that law unreasonably. Clark v. 9 Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003), overruled on other grounds by Lockyer v 10 Andrade, 538 U.S. 63, 71 (2003). 11 In Graham, the Supreme Court held that the Eighth Amendment prohibits the 12 imposition of life without parole on a juvenile defendant who did not commit a homicide 13 crime. Graham, 560 U.S. at 74, 82. The Court clarified that “[a] State need not 14 guarantee the offender eventual release, but if it imposes a sentence of life it must provide 15 him or her with some realistic opportunity to obtain release before the end of that term.” 16 Id. at 82. Two years later, in Miller, the Supreme Court held that mandatory life without 17 parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition on 18 cruel and unusual punishment. Miller, 567 U.S. at 479. In Miller, the Court did not 19 foreclose a sentencing court’s ability to impose life without parole on a juvenile homicide 20 defendant, but explained that the sentence must “take into account how children are 21 different, and how those differences counsel against irrevocably sentencing them to a 22 lifetime in prison.” Id. at 480. To support this conclusion, the Court cited its explanation 23 in Graham that a prohibition on life without parole means that a state “must provide 24 ‘some meaningful opportunity to obtain release.’” Id. at 470 (quoting Graham, 560 U.S. 25 at 75). 26 Petitioner presented his Graham/Miller claim to the state court on post-conviction 27 review. (Ex. UU.) The Arizona Court of Appeals granted review, but denied relief. 28 (Ex. XX.) The appellate court first noted that in Graham the Supreme Court held that a 1 sentence of life without the possibility of release for a juvenile who commits an offense 2 other than homicide is unconstitutional. (Id.) The appellate court then noted that Miller 3 held that the Eighth Amendment prohibits a mandatory sentence of life without the 4 possibility of release for juvenile homicide offenders. (Id.) The court observed that 5 neither Graham nor Miller addressed the issue of consecutive sentences, such as those 6 imposed in Petitioner’s case. (Id.) The Arizona Court of Appeals further noted that 7 Petitioner was not sentenced to life without the possibility of release for any of his 8 convictions. (Id.) The court found that Petitioner’s sentences did not violate Graham, 9 based on its decision in State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011), which 10 held that Graham did not prohibit the imposition of cumulative sentences that result in an 11 aggregate term of imprisonment that exceeds a juvenile defendant’s life expectancy. 12 (Ex. XX.) The court found that Miller did not have any effect on the Graham decision 13 that would require a different conclusion. (Id.) 14 Relying on Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013), Petitioner argues that 15 he is entitled to habeas corpus relief based on Graham because his aggregate sentence of 16 154 years to life imprisonment is functionally equivalent to life without parole. (Doc. 1 17 at 7; Doc. 31 at 5.) In Moore, the Ninth Circuit held that the petitioner’s sentence of 254 18 years’ imprisonment for non-homicide offenses that he committed as a juvenile violated 19 the Eighth Amendment under Graham. Id. at 1194. The court concluded that the 20 petitioner’s sentence of 254 years’ imprisonment was “irreconcilable with Graham’s 21 mandate that a juvenile nonhomicide offender must be provided ‘some meaningful 22 opportunity’ to reenter society.” Id. (emphasis added). 23 As Respondents argue, Moore is distinguishable from this case because, unlike 24 Petitioner in this case, the petitioner in Moore did not commit a homicide offense. See 25 Moore, 725 F.3d at 1186, 192-93 (noting that Graham distinguished between homicide 26 and nonhomicide crimes). In Graham, the Court stated, that “[t]he instant case concerns 27 only those juvenile offenders sentenced to life without parole solely for a nonhomicide 28 offense.” Graham, 560 U.S. at 63 (emphasis added) (stating that “[j]uvenile offenders 1 who committed both homicide and nonhomicide crimes present a different situation for a 2 sentencing judge than juvenile offenders who committed no homicide.”) The Court 3 further noted that “[t]here is a line ‘between homicide and other serious violent offenses 4 against the individual.’” Id. at 69 (quoting Kennedy v. Louisiana, 554 U.S. 407, 438 5 (2008)). In his briefing before the state court, Petitioner recognized that Graham, by 6 itself, “did not cleanly apply to [Petitioner’s] case in light of the murder conviction in 7 Count I.” (Ex. SS; Doc. 27 at 82.) Considering the distinction in Graham between 8 homicide and non-homicide crimes, the Arizona Court of Appeals’ conclusion that 9 Petitioner, who was convicted of both homicide and non-homicide crimes, was not 10 entitled to relief was not contrary to, or based on an unreasonable application of, 11 Graham. See 28 U.S.C. § 2254(d); see also Graham, 560 U.S. at 63. 12 Petitioner further argues that he is entitled to habeas corpus relief under Miller, in 13 which the Supreme Court held that mandatory life imprisonment without the possibility 14 of parole for juvenile homicide offenders violates the Eighth Amendment’s prohibition 15 on cruel and unusual punishment. Miller, 567 U.S. at 479. Petitioner, however, was not 16 sentenced to life without parole. (Exs. BB, II.) Rather, Petitioner received several 17 sentences that totaled 129 years’ imprisonment, to be followed by a sentence of life 18 imprisonment with the possibility of release after serving twenty-five years’ 19 imprisonment. (Id.) Thus, Petitioner was not given a mandatory sentence of life 20 imprisonment without the possibility of parole. As the Arizona Court of Appeals noted 21 on post-conviction review, Miller explicitly applies to mandatory sentences of life 22 without parole on a juvenile defendant and does not address the issue of consecutive 23 sentences. (Ex. XX; Doc. 28 at 53); see Miller, 567 U.S. at 479. In this case, Petitioner 24 was convicted of numerous separate offenses and was sentenced to consecutive sentences 25 that total 154 years to life imprisonment. (Exs. B, II.) 26 Several years after Miller was decided, in Demirdjian v. Gipson, 832 F.3d 1060 27 (9th Cir. 2016), the Ninth Circuit considered the issue of consecutive sentences under 28 Miller. In that case, petitioner argued that his two consecutive sentences of 25 years to 1 life imprisonment violated the Eighth Amendment because he was a juvenile at the time 2 he committed the crimes. Id. at 1076. The petitioner conceded that he did not receive a 3 life-without-parole sentence, but argued that he was entitled to relief under Miller 4 because his sentence was the functional equivalent of mandatory life without 5 imprisonment. Id. at 1076-77. The court concluded that because the petitioner would be 6 “eligible for parole when he was 66 years old, his sentence arguably [did] not ‘share 7 [any] characteristics with death sentences’ . . . , and thus [did] not necessarily trigger 8 Miller’s requirements.” Id. at 1077 (quoting Miller, 132 S. Ct. at 2466). The court 9 concluded that “[b]ecause fairminded jurists could disagree with [the petitioner] that 10 Miller’s requirements applied to his sentence,” he was not entitled to habeas corpus 11 relief. Demirdjian, 832 F.3d at 1077. 12 The court further explained that Miller may apply only to life-without-parole 13 sentences: 14 Miller’s prohibition of mandatory life-without-parole sentences for juvenile offenders rested in part on the premise 15 that “a distinctive set of legal rules” applies to a life-without- parole term for juveniles. 132 S.Ct. at 2466. Because such a 16 term is the “ultimate penalty for juveniles . . . akin to the death penalty,” id. it “demand[s] individualized sentencing,” 17 including consideration of the juvenile’s age and the circumstances of the crime, id. at 2467. Miller noted, 18 however, that “no other sentences” “share [these] characteristics with death sentences.” Id. at 2466 (quoting 19 Graham v. Florida, 560 U.S. 48, 69 (2010)). There is a reasonable argument that Miller thus applies only to life- 20 without-parole sentences. 21 Id. at 1076-77 (emphasis added). 22 The holding in Miller specifically applies to life-without-parole sentences. Miller, 23 567 U.S. at 479. Petitioner, however, was not sentenced to life without parole. (Exs. B, 24 II.) Rather, he was sentenced to separate consecutive sentences that collectively will 25 likely exceed his life expectancy. (Id.) Petitioner argues that his aggregate sentence 26 violates the Eighth Amendment under Miller. (Doc. 1 at 7.) However, “[t]he rule upon 27 which [Petitioner] relies—that the functional equivalent of life without parole is 28 unconstitutional—is not the rule established in Miller and made retroactive in 1 Montgomery.” In re Harrell, 2016 WL 4708184, at *2 (6th Cir. Sept. 8, 2016) (denying 2 request to file a second or successive habeas petition arguing that an effective term of life 3 imprisonment without parole on a juvenile defendant was unconstitutional under Miller ); 4 see also Starks v. Easterling, 659 F. App’x. 277, 280-81 (6th Cir. 2016) (“[T]he Supreme 5 Court has not yet explicitly held that the Eighth Amendment extends to juvenile 6 sentences that are the functional equivalent of life . . . .”); Bell v. Nogan, 2016 WL 7 4620369, at *3 (D. N.J. Sept. 6, 2016) (denying petitioner’s request for a stay to exhaust a 8 claim that his sentence, which constituted a “de facto sentence of life without parole,” 9 violated Miller because that claim lacked merit). 10 Because Petitioner did not receive a sentence of life without parole, Miller does 11 not explicitly apply to him. The Supreme Court has not yet specifically ruled on whether 12 the Eighth Amendment extends to juvenile sentences that are the functional equivalent of 13 a sentence of life without the possibility of parole and “lower courts are divided about the 14 scope of Miller.” Bell, 2016 WL 4620369, at *3 (citing Starks, 2016 WL 4437588, at 15 *3); see Moore, 742 F.3d at 920 (O’Scannlian, dissenting from denial of rehearing en 16 banc) (collecting cases) (considering Graham and noting that courts are split about 17 whether consecutive, fixed sentences resulting in a sentence that exceeds a defendant’s 18 life expectancy are the functional equivalent of a life sentence). 19 Because there is no clearly established Supreme Court precedent holding that an 20 aggregate sentence that is functionally equivalent to life imprisonment without the 21 possibility of parole violates the Eighth Amendment, the Arizona Court of Appeals’ 22 decision is not contrary to or based on unreasonable application of clearly established 23 Supreme Court precedent. See Harrington v Richter, 562 U.S. 86, 101 (2011) (stating 24 that “[i]t is not an unreasonable application of clearly established Federal law for a state 25 court to decline to apply a specific legal rule that has not been squarely established by 26 [the Supreme Court].”); see also White, 134 S. Ct. at 1706 (“‘[I]f a habeas court must 27 extend a rationale before it can apply to the facts at hand,’ then by definition the rationale 28 was not ‘clearly established at the time of the state-court decision.’”) (quoting 1|| Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)). Thus, the appellate court reasonably 2|| concluded that Petitioner was not entitled to habeas corpus relief under Miller. See 3|| Demirdjian, 832 F.3d at 1076-77; Bautista v. Ryan, 2017 WL 8181544, at *4 (D. Ariz. Dec. 7, 2017) (concluding that request to amend the petition to include a claim that || petitioner’s consecutive sentences violated the Eighth Amendment because they were the functional equivalent of life imprisonment without the possibility of parole would be futile). 8} Ill. Conclusion 9 The Court finds that Petitioner is not entitled to habeas corpus relief. Therefore, the Court recommends that the petition for writ of habeas corpus be denied. 11 Accordingly, 12 IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be 13) DENIED. 14 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 15 || leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right . 17 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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court’s 20 || 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); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which 23 || to file a response to the objections. Failure to file timely objections to the Magistrate || Judge’s Report and Recommendation may result in the acceptance of the Report and 25 || Recommendation by the District Court without further review. See United States v. 26|| Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 27 Dated this 26th day of June, 2018. . xi het” bh Graphe Bridget S. Bade United States Magistrate Judge -i1-