Amaral #097231 v. Ryan et al

Filing 47

ORDER - IT IS ORDERED that the Report and Recommendation (Doc. 43 ) is accepted in part, rejected in part, and modified in part. IT FURTHER ORDERED that the mixed petition in this case is re-referred to Magistrate Judge Bridget S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (See document for further details). Signed by Senior Judge James A Teilborg on 10/2/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Travis Wade Amaral,
Petitioner,

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ORDER

v.

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No. CV-16-00594-PHX-JAT (BSB)

Charles L Ryan, et al.,

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Respondents.

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Pending before this Court is the Report and Recommendation of the Magistrate

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Judge (R&R). This Court “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

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The R&R recommends that this Court: 1) find Petitioner’s Miller claim exhausted

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before the state courts; and 2) find Petitioner did not waive his right to seek federal

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habeas relief via his plea agreement. (Doc. 43). If the Court adopts the R&R, the state

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will file a supplement to its answer to address the merits of Petitioner’s Miller claim. (Id.

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at 1).

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Respondents filed an objection to the R&R. (Doc. 44). Petitioner filed a reply to

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Respondents’ objection. (Doc. 45). The Court will review the portions of the R&R to

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which there is a specific objection de novo. United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc) (It is “clear that the district judge must review the

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magistrate judge’s findings and recommendations de novo if objection is made, but not

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otherwise.”)

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I.

Factual and Procedural Background

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The R&R summarized the factual and procedural background of this case. (Doc.

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43 at 1-4). Neither party objected to the accuracy of this summary. Accordingly, the

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Court accepts and adopts it.

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In short summary, Petitioner is incarcerated for crime he committed when he was

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sixteen years old. (Doc. 43 at 2). Petitioner’s sentence required him to serve 57.5 years

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in prison, with the possibility of parole thereafter. (Doc. 43 at 2-3).

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Following the Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460
(2012), Petition filed a post-conviction relief petition in state court.

In Miller, the

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Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that

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mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567

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U.S. at 479.

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“mandatory” and 2) that the sentence “life without the possibility of parole.” Petitioner

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argues that his 57.5 year sentence is effectively a life without parole sentence.

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II.

This holding has two components for juveniles: 1) that the sentence be

Respondents’ Procedural Arguments

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A.

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Following its decision in Miller, the Supreme Court held in Montgomery v.

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Louisiana, ___ U.S. ___, 136 S.Ct. 718 (2016), that claims under Miller applied

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retroactively to cases on collateral review. Montgomery, 136 S. Ct. at 736-37.

Montgomery

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In this case, when Petitioner first filed his second post-conviction relief petition in

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state court, Montgomery had not yet been decided. It is undisputed that Petitioner’s case

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was not on direct appeal when Miller was decided and, thus, Petitioner would need the

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benefit of retroactivity to have his Miller claim heard by the courts.

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At this point, everyone seems to be in agreement that Montgomery did not create a

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new claim.1 However, Respondents argue that a Montgomery claim must nonetheless be

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exhausted in state court. (Doc. 44 at 5). As all parties concede, Petitioner did present a

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(Doc. 43 at 6 n.1); (Doc. 33 at 10); State v. Valencia, 386 P.3d 392, 395, ¶ 14
(Ariz. 2016); Tatum v. Arizona, ___U.S. ___ 137 S.Ct. 11, 12 (2016); (Doc. 45 at 2).
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Miller claim to the state courts via his second post-conviction relief petition. Further, the

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Arizona Courts presumed without deciding that Miller would be applicable to cases on

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collateral review; and therefore, the Arizona Courts proceeded to the merits of

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Petitioner’s Miller claim even though Montgomery had not yet been decided. (See

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Arizona Court of Appeal Opinion on Petitioner’s second post-conviction relieve petition:

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Doc. 33-4 at 36 n.1). Thus, as the R&R concludes, the Miller claim was exhausted in the

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state courts.

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1.

“Mandatory”

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The actual issue Respondents are arguing is that Montgomery’s “clarification” of

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Miller so materially modified the holding of Miller that any claim that was exhausted as a

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pure Miller claim, without the Montgomery clarification, was effectively not presented to

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the state courts because the claim was presented under the wrong legal test.

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Respondents’ support for the argument that Montgomery so materially changed Miller is

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that when the Arizona state courts applied Miller as written, they were summarily

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reversed for further consideration in light of Montgomery.

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___U.S. ___ 137 S. Ct. 11, 12-13 (2016). Further, applying Tatum, the Arizona Supreme

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Court in Valencia noted that the holding of Miller was significantly clarified by

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Montgomery. Specifically, the Arizona Supreme Court stated:

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See Tatum v. Arizona,

The State contends that Miller bars mandatory sentences of life without
parole and thus requires only that the sentencing court consider the
juvenile’s age as a mitigating factor before imposing a natural life sentence
- as occurred in each case here. Montgomery refutes these arguments by
expressly holding that Miller reflects a substantive rule and noting “[e]ven
if a court considers a child’s age before sentencing him or her to a lifetime
in prison, that sentence still violates the Eighth Amendment for a child
whose crime reflects unfortunate yet transient immaturity.” Id. at 734
(internal quotation marks omitted); see also Tatum v. Arizona, 137 S. Ct.
11, 12 (2016) (summarily granting review, vacating, and remanding for
reconsideration, in light of Montgomery, several decisions by the Arizona
Court of Appeals rejecting claims for post-conviction relief under Miller
where sentencing court had considered the petitioner’s youth).
Valencia, 386 P.3d at 395, ¶ 16.

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Thus, in restating the State’s argument, the Arizona Supreme Court summarized

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that while Miller seemingly allowed life sentences without the possibility of parole for

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juveniles to pass constitutional scrutiny without resentencing if the original sentencing

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court considered the juvenile’s age as a mitigating factor,2 (and the Arizona Supreme

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Court noted that in Valencia’s sentencing, Valencia’s age was considered as a mitigating

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factor (Valencia¸ 386 P.3d at 394, ¶¶ 5-6)) Montgomery “clarified” Miller as holding that

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resentencing would be required (even when the sentencing court considered the

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juvenile’s age as a mitigating factor) to consider the specific test of Montgomery; namely:

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whether the juvenile’s crimes, “reflected ‘irreparable corruption’ rather than the ‘transient

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immaturity of youth.’” Valencia, 386 P.3d at 395, ¶ 15. Thus, the Arizona Supreme

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Court remanded Valencia’s case to the trial court for an evidentiary hearing wherein

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Valencia would be given the, “opportunity to establish, by a preponderance of the

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evidence, that [his] crimes did not reflect irreparable corruption but instead transient

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immaturity. [citation omitted]. Only if [he] meet[s] this burden will [he] establish that

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[his] natural life sentence[] [is] unconstitutional, thus entitling [him] to resentencing.”

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Valencia, 386 P.3d at 396, ¶ 18.

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Turning to Petitioner’s case, in Petitioner’s second post-conviction relief petition,

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the Arizona Court of Appeals reached the merits of Petitioner’s Miller claim. In deciding

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that Petitioner was not entitled to relief under Miller, the Arizona Court of Appeals found

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four reasons why Petitioner did not meet the test of Miller. (Doc. 33-4 at 3-4, ¶ 7).

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Specifically, the Arizona Court of Appeals found that Petitioner was not entitled to relief

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because: 1) Petitioner was not sentenced to life without parole because he was entitled to

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a parole hearing after serving 25 years on each life count; 2) Petitioner’s sentences were

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57.5 years only because they were consecutive, but the fact that Petitioner committed

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multiple crimes that resulted in consecutive sentences does not make each sentence the

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functional equivalent of a life sentence without parole; 3) the trial judge imposing

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In other words, Miller said “mandatory” life sentences without parole for
juveniles were unconstitutional; thus, the state of Arizona argued and several Arizona
courts originally held that if the sentencing court expressly considered the juvenile’s age
as a mitigating factor, and the sentencing court retained the discretion to not give a life
sentence, the sentence would not run afoul of Miller’s prohibition on “mandatory” life
sentences for juveniles without the possibility of parole. However, in Tatum the United
States Supreme Court reversed that this reading of Miller in light of Montgomery.
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consecutive sentences was discretionary not mandatory; and 4) the trial judge considered

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significant evidence regarding Petitioner’s age as a mitigating factor, as Miller required3.

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(Id.).

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The test for whether this Court can grant habeas relief under 28 U.S.C. § 2254 on

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exhausted claims is whether the decision of the state court was contrary to or an

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unreasonable application of clearly establish federal law, or an unreasonable

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determination of the facts. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). In this case, it

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would appear that the third and fourth reasons given by the Arizona Court of Appeals for

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denying Petitioner’s Miller claim would not have been contrary to federal law at the time

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the decision was issued, but in light of Montgomery, Tatum, and Valencia would now be

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contrary to clearly established federal law.

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Presumably recognizing this likely outcome, Respondents have strongly argued

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that a Miller claim must be “re-exhausted” under Montgomery¸ not as a new claim, but

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under a completely different legal test. Doc. 44 at 4-5.4 Citing Picard v. Connor, 404

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U.S. 270, 276 (1971), Respondents note that even a claim that has previously been

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presented to the state courts may still be unexhausted if there has been an intervening

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change in the law that casts “…the legal issue in a fundamentally different light….” Doc.

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44 at 5. Here, the fundamentally different light would be that the “test” for a Miller claim

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is not whether the sentence was “mandatory”, and not whether the original sentencing

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court considered the juvenile’s age in imposing a sentence, but rather, whether

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Petitioner’s crimes were just “transient immaturity”. Montgomery, 136 S.Ct. at 734.

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Thus, Montgomery requires the sentencing court to expressly consider and find

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Specifically, Miller held that there was no categorical bar on life without parole
sentences for juveniles. Miller, 567 U.S. at 479. However, Miller held that for a life
without parole sentence for a juvenile to be constitutional, the sentencing court had to
have the ability to consider “an offender’s age and the wealth of characteristics and
circumstances attendant to it” and the ability to exercise discretion regarding whether to
give the juvenile a life without parole sentence. Miller, 567 U.S. at 476.
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Presumably this issue would not present itself for cases decided by the state
court after Montgomery/Tatum/Valencia because those cases would have considered a
Miller claim under the correct legal standard.
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“irreparable corruption” for the juvenile life without parole sentence to be proportional.

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Id.

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In reply, Petitioner argues that because everyone agrees Montgomery did not

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create a new claim, and because Respondents agree that Petitioner exhausted a Miller

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claim, there is nothing further to return to state court and exhausted regarding this Miller

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claim. (Doc. 45 at 2). Further, Petitioner argues that to the extent Respondents rely on

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Valencia as a “clarification” of Miller such reliance is misplaced because a state court

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cannot make federal law. (Id. at 6).

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Turning to Petitioner’s first argument why re-exhaustion is not required, the Court

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disagrees that a Miller claim has been exhausted in state court under the correct legal test.

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In sum, Petitioner argues that Montgomery did nothing more that make Miller retroactive;

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thus, there is nothing “new” about Montgomery to exhaust. This argument was made by

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the dissent in Tatum, but rejected by the majority.

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Specifically, the dissent said that the Arizona sentencing scheme complied with Miller

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and that if Montgomery solely made Miller retroactive, there was nothing in Montgomery

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that would require remand. Id at 13-14. However, the majority in Tatum made clear that

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they viewed the “mandatory” definition of Montgomery to be more than the sentencing

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court lacking discretion; which was seemingly the definition used by Miller. Id at 11-13.

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Instead the majority remanded and required an express finding by the sentencing court

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that the juvenile was irreparably corrupted and not transiently immature for the sentence

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to be constitutionally proportional. Id at 12. Thus, while Petitioner’s argument here is

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fully in accord with what the result would be if Montgomery were a mere holding that

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Miller was retroactive, the majority in Tatum holds that Montgomery also changed the

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definition of “mandatory.”

Tatum, 137 S.Ct. at 11-13.

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The distinction between Miller and Montgomery is highlighted in this case by a

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review of Petitioner’s second post- conviction relief petition filed in accordance with only

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Miller. Petitioner did not argue in state court that his sentencing violated the constitution

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because he did not have an evidentiary hearing to determine the specific issue of whether

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his crimes were merely “transient immaturity” and not “irreparable corruption.” Of

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course, Petitioner cannot be faulted for this because, as noted above, each sentencing

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court being required to consider not only “an offender’s age and the wealth of

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characteristics and circumstances attendant to it,” as Miller required, but specifically the

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question of “transient immaturity” versus “irreparable corruption” did not arise until

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Montgomery. And in Petitioner’s case, this “clarification” likely changes the outcome.

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Specifically, the original sentencing court took testimony from Petitioner’s parents

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and a clinical physiologist, and considered multiple mental evaluations of Petitioner, all

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of which addressed Petitioner’s age. (Doc. 33-4 at 37).

Further the sentencing court

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expressly considered Petitioner’s age and found it to be a mitigating factor.

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However, neither the evidence received at sentencing, nor the sentencing judge,

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addressed the concept of “transient immaturity” specifically; and the sentencing judge did

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not expressly find “irreparable corruption.” Thus, while Petitioner’s original sentencing

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may have satisfied Miller, it does not appear to have satisfied the Montgomery

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“clarification.”

(Id.)

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Regarding Petitioner’s next argument, that Valencia cannot define federal law,

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Petitioner is correct. However, the Arizona Courts were summarily reversed by a federal

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court in Tatum for applying Miller without the Montgomery “clarification.” Further, as

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noted above, the Arizona Courts were reversed for reconsideration of their Miller

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decisions in light of Montgomery. Tatum, 137 S.Ct. at 11-14 (noting that the Arizona

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courts had assumed Miller was retroactive and had considered the merits of the Miller

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claim, but nonetheless remanding to apply Montgomery). Thus, while the Valencia Court

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may not be a binding test of what Montgomery requires, clearly the United States

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Supreme Court in Tatum found Montgomery required something more than the

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sentencing court having the discretion to consider “an offender’s age and the wealth of

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characteristics and circumstances attendant to it.” Thus, this Court cannot say that

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Valencia’s interpretation of what Montgomery requires was contrary to or an

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unreasonable application of federal law.

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Based on all of the foregoing, the Court concludes that Montgomery created a

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materially new “test” for the definition of “mandatory.”

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Petitioner exhausted was a Miller claim using the definition of mandatory as meaning:

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the sentencing court had the discretion to consider “an offender’s age and the wealth of

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characteristics and circumstances attendant to it;” under Montgomery Petitioner will have

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to re-exhaust this claim using the definition of “mandatory” as meaning: Petitioner was

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given the opportunity to produce evidence that his crimes were just “transient

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immaturity.”5

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2.

Thus, to the extent what

“Life Sentence without Parole”

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As indicated above, Miller had two relevant holdings for juvenile cases: 1) that the

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sentence was mandatory; and 2) that the juvenile received a life sentence without the

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possibility of parole. As further discussed above, the Arizona Court of Appeals first two

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reasons for finding that Petitioner was not entitled to relief under Miller were that

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Petitioner did not receive a life sentence without the possibility of parole. (Doc. 33-4 at

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36). Specifically, the Arizona Court of Appeals stated:

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First Amaral was not sentenced to life without parole; both life sentences
provided for the possibility of parole after twenty-five years. Second
although the consecutive nature of the three sentences requires that Amaral
serve a minimum of 57.5 years, the length of the consecutive sentences
does not make them the functional equivalent of a life sentence without
parole.

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(Doc. 33-4 at 36).
As also indicated above, Petitioner argues that his 57.5 year sentence before he

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receives consideration for parole is the functional equivalent of a life sentence. By this
Court’s calculation, Petitioner would be entitled to consideration for parole at the age of
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The component of a Miller claim that the juvenile receive a “life sentence without

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The Court notes that a petition for certiorari is pending in Valencia. If that is
granted, and if the Supreme Court defines “mandatory” under Montgomery differently
than the Arizona Supreme Court, obviously this Court’s holding that the sentencing court
considering “transient immaturity” is the operative test for determining whether a
sentence was “mandatory” would give way to any further clarification.
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the possibility of parole” has been exhausted with the state courts. Thus, the amended

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Petition is a mixed petition that contains both exhausted claims and unexhausted claims.

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B.

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The R&R concludes that Petitioner did not waive his right to file a federal habeas

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petition in his plea agreement in state court. Petitioner and Respondent both agree with

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this conclusion. However, Respondents argue that Petitioner’s plea agreement did waive

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the particular sentencing claim that is at issue in this case.

Plea Agreement

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The R&R and the parties agree that for a waiver to be enforceable it must be

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express. The plea agreement stated, “…the defendant also gives up any and all motions,

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defenses, objections or requests which he has made or raised, or could assert hereafter, to

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the court’s entry of judgment against him and imposition of sentence upon him consistent

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with this agreement.” (Doc. 12-1 at 4). Respondents argue that this language waives all

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claims challenging Petitioner’s sentence other than claims of ineffective assistance of

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counsel or claims that the plea was not knowingly and voluntarily entered, neither of

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which are at issue in this case. (Doc. 44 at 7).

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The exact same waiver as is found in Petitioner’s plea agreement has been

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enforced by other courts in this district to bar challenges to sentencing claims, while

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allowing the habeas petition to proceed. See e.g. Schenck v. Ryan, No. CIV 13-0776-

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PHX-GMS (MHB), 2013 WL 6628140, *1-5 (D. Ariz. Dec. 17, 2013), adopted by 2014

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WL 119373 (Jan. 14, 2014). However, the Arizona Court of Appeals has noted: No

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Arizona decision has addressed whether a defendant waives his right to object to the

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proportionality of his sentence by entering a guilty plea. Gonzalez-Barrera v. Ryan, No.

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CV-15-8024-PCT-JJT (JFM), 2016 WL 4611576, at *8 (D. Ariz. Feb. 19, 2016), adopted

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by 2016 WL 4592179 (Sept. 2, 2016) (quotation marks and citation omitted). Clearly

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Miller/Montgomery claims are constitutional challenges to the proportionality of a

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juvenile’s sentence.

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Applying Ninth Circuit law, albeit in a different context, another district court
noted that:

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An appeal waiver will not apply, however, if:
1) a defendant’s guilty plea failed to comply with Fed. R. Crim. P.
11; 2) the sentencing judge informs a defendant that she retains the
right to appeal; 3) the sentence does not comport with the terms of
the plea agreement; or 4) the sentence violates the law.
United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is
illegal if it exceeds the permissible statutory penalty for the crime or
violates the Constitution.” Id. (quoting United States v. Fowler, 794 F.2d
1446, 1449 (9th Cir. 1986)). Here, Defendant is raising a constitutional
argument.

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United States v. Tomisser, 196 F.Supp.3rd 1169, 1174-75 (E.D. Wash. 2016).
In this case, Respondents presumably will argue that Petitioner’s sentence was not

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illegal/unconstitutional under Miller.

However, clearly Petitioner is raising a

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constitutional challenge to the proportionality of his sentence under Miller. Even though

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this Court is not holding at this time that Petitioner’s sentence is unconstitutional, if

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Petitioner prevailed on his argument, the effect would be that his sentence is

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unconstitutional.

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constitutionality of his sentence, the Court will not apply the waiver in Petitioner’s plea

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agreement.

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III.

Therefore, because Petitioner is bringing a challenge to the

Conclusion

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Based on the foregoing,

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IT IS ORDERED that the Report and Recommendation (Doc. 43) is accepted in

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part, rejected in part, and modified in part. Specifically, the R&R is accepted that

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Petitioner has exhausted his Miller claim on the issue of whether he received a life

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sentence without parole; the R&R is rejected on whether Petitioner has exhausted a

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Miller/Montgomery claim on whether Petitioner’s sentence was “mandatory;” and the

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R&R is modified and the conclusion is accepted as to whether Petitioner waived his right

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to bring his Miller/Montgomery claim in his plea agreement.

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sustained or overruled consistent with this Order.

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The objections are

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IT FURTHER ORDERED that the mixed petition in this case is re-referred to

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Magistrate Judge Bridget S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of

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Civil Procedure for further proceedings and a report and recommendation.

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Dated this 2nd day of October, 2017.

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