Thomas v. Stitt

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 1, 2022
• Docket: 21-6011
• Status: Unpublished

Opinion

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 2

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

2 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 3

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

3 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 4

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

4 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 5

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.

5 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 6

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

1 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) 6 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 7

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.”).

7 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 8

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

8 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 9

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

9 Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 10

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