Rojas #158837 v. Ryan et al

Filing 45

ORDER: Petitioner's Objection 41 to Section IV of the Magistrate Judge's R&R 40 is sustained and the Objection to Section I is overruled. The remainder of the R&R 40 is adopted. Petitioner's First Amended Petition for a Writ of H abeas Corpus Under 28 U.S.C. § 1 is denied and this action is dismissed with prejudice. A certificate of appealability shall issue on the question of whether Petitioner's sentencing complied with the constitutional requirements set forth in Miller v. Alabama. The Clerk of Court shall enter judgment accordingly. Signed by Judge John J Tuchi on 4/17/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Rojas,

No. CV-15-00933-PHX-JJT
Petitioner,

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v.

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ORDER

Charles L. Ryan, et al.,

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Respondents.

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The Court has considered the Report and Recommendation (“R&R”) (Doc. 40)

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prepared by United States Magistrate Judge John Z. Boyle in this matter, as well as

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Respondent’s Objection (Doc. 41) and Petitioner’s Response thereto (Doc. 42). Both the

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Objection and Response were timely filed. Upon de novo review, the Court will sustain

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Respondent’s Objection to Section IV of the R&R and deny the Petition for Writ of

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Habeas Corpus Pursuant to 28 U.S.C. § 2254.1

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Petitioner is serving a life term without the possibility of parole as a result of his

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conviction for two counts of first degree murder. He also was sentenced to concurrent

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eighteen-year terms for conspiracy and armed robbery, which terms have now expired.

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He was fifteen years old in 1999 when he committed these offenses.

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Respondent also objects to Section I of the R&R. (Doc. 41.) Section I of the
R&R is merely a summary of the R&R’s conclusions and does not set forth any
reasoning or analysis. The Objection is therefore superfluous and the Court denies it as
such. The Court adopts the remainder of the R&R.

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At the sentencing hearing, the trial judge had before him the pre-sentence

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investigation report for the matter, which informed the judge that Petitioner was fifteen

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years old and in ninth grade at an alternative school at the time of the offenses; that he

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had a very difficult childhood including his father leaving when Petitioner was eight

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years old and that he went into a children’s home when his mother began using drugs;

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that he had suffered abuse before being moved to the children’s home and was a user of

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marijuana and methamphetamine at the time of the offenses; that he was spending a good

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deal of time with friends who were “negative influences” on him at the time of the

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offenses; and that he was under the care of a psychiatrist to address anger management

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issues and taking Welbutrin at the time of sentencing. (Doc. 26 at 2-3.) Additionally, the

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sentencing judge received and reviewed “extensive records from a California social

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services agency detailing Petitioner’s personal background and dysfunctional family

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history” and a memorandum from a mitigation specialist containing the specialist’s

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assessment of Petitioner based on an interview and review of his records. (Doc. 12 Ex. Q

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at 15.)

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Having reviewed that information, the judge made the following findings and
observations at the sentencing hearing:
I heard the evidence in this case. [] This was a heinous crime.
Mr. Fromme, you shot him three times. The last time he was
still alive. And then as Ms. Hoppes ran away screaming, you
shot her twice in the head. []

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I did read all the papers, the documents from Orange County
[social services agency report]. Yes, you had a miserable
childhood, but, you know, there’s a lot of people out there
who have had worse childhoods than you and they don’t go
out and commit double homicide. It’s unfortunate that your
mother and your grandmother, that they’re hurt by this, but
the only person that you can blame for them being hurt is
yourself for getting involved in this. []
I have considered the aggravating and mitigating
circumstances. The mitigating circumstances being your age

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and no prior felony convictions. The aggravating
circumstances being multiple perpetrators, the fact that it was
done for pecuniary gain, the effect on the families. And also
the manner of the killing, the terror. The witnesses testified to
the screaming of Amy Hoppes as she tried to run away from
you before you shot her.

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(Doc. 12 Ex. U at 12-13.) Based on those findings the sentencing judge imposed the

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sentences of life without possibility of parole for the two murder charges.

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The issue before the Court is whether Petitioner’s life sentences without

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possibility of parole violate the Supreme Court’s subsequent holding in Miller v.

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Alabama, 132 S. Ct. 2455 (2012). In Miller, the Supreme Court held “the Eighth

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Amendment forbids a sentencing scheme that mandates life in prison without possibility

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of parole for juvenile offenders.” 132 S. Ct. at 2469. While the Court in Miller made clear

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it did not preclude a sentencing judge from imposing a life sentence without parole in

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homicide cases, it would “require [the sentencing judge] to take into account how

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children are different, and how those differences counsel against irrevocably sentencing

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them to a lifetime in prison.” Id. The Supreme Court noted that it thought that

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“appropriate occasions for sentencing juveniles to this harshest possible penalty will be

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uncommon” in light of the difficulty “of distinguishing at this early age between ‘the

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juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare

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juvenile offender whose crime reflects irreparable corruption.’” Id. (internal citations and

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quotations omitted).

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The parties agree that Miller is retroactive in its application to Petitioner’s case,

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and that Petitioner’s “pure” Miller claim2 is exhausted for purposes of AEDPA and

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therefore properly before this Court for resolution.

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Petitioner raised his Miller claim to the Arizona state courts on post-conviction
review before the Supreme Court decided Montgomery v. Louisiana, 136 S. Ct. 718
(2016). The Court in Montgomery not only held that its ruling in Miller retroactively
applies to cases that have become final, but it arguably also imposed additional
requirements on a judge deciding whether to impose a life sentence without possibility of
parole on a juvenile offender. (See R&R at 11-12.). To the extent Petitioner’s Habeas
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The R&R grounded its recommendation for remand and resentencing on Miller’s

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requirement that a sentencing judge’s exercise in discretion be guided by an

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“individualized consideration” of the offender’s “age and age-related characteristics,” as

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well as the nature of his crime. (R&R, quoting Miller, 132 S. Ct. at 2469-70, 2475.) The

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R&R observes that

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Miller requires a court to do more than consider a defendant’s
age. A judge must consider a defendant’s “age and age related
characteristics” [and] must also consider “how [children’s]
differences counsel against irrevocably sentencing them to
life in prison.

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(R&R at 11, internal quotation omitted.) On this statement of the law and what is

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required the Court agrees. But the R&R then states that “the trial judge did not consider

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Petitioner’s ‘age related characteristics’ nor discuss ‘how children are different’”:

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[A]cknowledging Petitioner’s age and miserable childhood is
not the same as considering how children are different and
whether Petitioner was one of the uncommon juveniles who
should be sentenced to natural life in prison.”

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(R&R at 11, 14.) The above conclusions can only be read as an extension of Miller to

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require a sentencing judge to discuss “how children are different,” either as a direct

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requirement, or indirectly by equating consideration of a factor to expressly mentioning

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that consideration in the sentencing proceeding. The Ninth Circuit has not read Miller to

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impose that requirement.

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In Bell v. Uribe, a habeas petitioner challenged her California state court sentence,

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as a juvenile, to life without parole for the murder of her mother. 748 F.3d 857 (9th Cir.

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2014). The information before the sentencing judge, as set forth by the Ninth Circuit, was

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Petition would present a Montgomery-based claim, Respondent argues such claim is
unexhausted and therefore not properly before the Court.
Petitioner urges that Montgomery provides “clarifying language” to Miller but
“does not create a new right,” and thus does not affect his Miller claim. (Doc. 24 at 1011.) Respondent states it does not object to resolution of the Petition on “narrow grounds,
treating [Petitioner’s] claim as a ‘pure’ Miller claim ‘without reference to Montgomery.’”
(Doc. 41 at 3.) Magistrate Judge Boyle recommends, and based on its analysis below this
Court agrees, that it can properly decide this as a “pure” Miller claim.
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strikingly similar in depth to the information before the sentencing judge in the instant

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case. The sentencing judge in Bell merely stated that she had reviewed and considered the

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probation department’s report on the petitioner, “which contained mitigating evidence

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related to [the petitioner]’s education, health, substance abuse history, and lack of prior

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criminal record.” Id. at 870. Beyond the fact that the petitioner was sixteen at the time of

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the murder, the sentencing judge did not discuss at all at sentencing “how children are

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different,” within the meaning of Miller, or otherwise expressly address her age-related

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characteristics. Nonetheless, the Ninth Circuit affirmed the district court’s denial of the

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habeas petition in Bell, holding that the sentencing judge performed, as described above,

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an adequate individualized assessment of the petitioner and her offense. Id. In reaching

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its conclusion, the court in Bell focused simply on whether California’s applicable

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sentencing laws “afford[ed] the sentencing judge discretion to consider the specific

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circumstances of the offender and the offense.” Id. As long as she had such discretion, the

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court in Bell did not require any specific recitation. No such recitation is necessary in the

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present case.3

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Should Petitioner wish to appeal this decision, the Court concludes that a

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certificate of appealability should issue regarding the Miller issue. As the Supreme Court

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has recently clarified, the inquiry regarding the issuance of a certificate of appealability

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“is not coextensive with a merits analysis” and the threshold question of whether “jurists

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of reason could disagree with the district court’s resolution of [Petitioner’s] constitutional

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claims or that jurists could conclude the issues presented are adequate to deserve

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encouragement to proceed further” should be determined without “full consideration of

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the factual or legal bases adduced in support of the claims.” Buck v. Davis, 137 S. Ct.

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759, 773 (2017). While the Court concludes that the petitioner’s sentencing did not

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See also Aguilar v. Ryan, No. CV-14-02513-PHX-DJH, 2017 WL 2119490, at
*4 (D. Ariz. May 16, 2017) (“This Court therefore declines to interpret Miller to require a
sentencing judge to make formal findings of fact regarding a juvenile offender’s youth
and attendant characteristics before imposing a life without parole sentence.”).
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violate the constitutional principles set forth in Miller, the Court cannot conclude that

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jurists of reason could not find the issue to be debatable.

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IT IS ORDERED sustaining Petitioner’s Objection (Doc. 41) to Section IV of the
Magistrate Judge’s R&R (Doc. 40) and overruling the Objection to Section I thereof.

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IT IS FURTHER ORDERED adopting the remainder of the R&R (Doc. 40).

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IT IS FURTHER ORDERED that the petitioner’s First Amended Petition for a

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Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) is denied and that this action is

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dismissed with prejudice.

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IT IS FURTHER ORDERED that a certificate of appealability shall issue on the

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question of whether Petitioner’s sentencing complied with the constitutional requirements

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set forth in Miller v. Alabama, 567 U.S. 460 (2012).

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
Dated this 17th day of April, 2018.

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Honorable John J. Tuchi
United States District Judge

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