Amaral #097231 v. Ryan et al

Filing 80

ORDER: IT IS ORDERED that the Report and Recommendation (Doc. 69 ) is accepted and adopted, the objections are overruled (Doc. 77 ) and the Clerk of the Court shall enter judgment accordingly. IT IS FURTHER ORDERED that the request for a certificate of appealability is denied. (See attached Order for additional information.) Signed by Senior Judge James A. Teilborg on 12/20/2018. (RMW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Travis Wade Amaral,
Petitioner,

10
11

ORDER

v.

12

No. CV-16-00594-PHX-JAT

Charles L Ryan, et al.,

13

Respondents.

14
15

Pending before the Court is the second Report and Recommendation (“R&R”) from

16

the Magistrate Judge recommending that the Petition for Writ of Habeas Corpus in this

17

case be denied. (Doc. 69). Petitioner has filed objections to the R&R (Doc. 77) and

18

Respondents have replied to those objections (Doc. 78). The Court must review the

19

portions of the R&R to which there is an objection de novo. United States v. Reyna-Tapia,

20

328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

21

Review of State Court Decision

22

The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is

23

incarcerated based on a state conviction. With respect to any claims that Petitioner

24

exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must

25

deny the Petition on those claims unless “a state court decision is contrary to, or involved

26

an unreasonable application of, clearly established Federal law”1 or was based on an

27
1

28

Further, in applying “Federal law” the state courts only need to act in accordance
with Supreme Court case law. See Carey v. Musladin, 549 U.S. 70, 74 (2006).

1

unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003).2

2

Merits of the Petition3

3

As this Court discussed in prior orders, Petitioner brings this Petition claiming that

4

his sentence violates Miller v. Alabama, 567 U.S. 460 (2012). (Doc. 47 at 2; Doc. 60).

5

Having review the R&R, the Court has determined there are three issues remaining in this

6

case: 1) whether Petitioner’s sentence is a “functional equivalent” of a life sentence; 2)

7

whether, even if Petitioner received a “functional equivalent life sentence,” such a sentence

8

provides a basis for relief; and 3) whether Miller applies to non-mandatory life sentences.

9

Specifically, the R&R summarized the claims as: “Petitioner argues that his consecutive

10

sentences, which result in an aggregate sentence of 57.5 years to life imprisonment, are the

11

functional equivalent of a sentence of life without parole and, therefore, violate the Eighth

12

Amendment under Graham and Miller.” (Doc. 69 at 9) (citation omitted).

13

The R&R concluded that Petitioner exhausted the Miller claim before the Arizona

14

Courts. (Id.). Neither party objected to this finding and the Court hereby accepts it. The

15

Arizona Courts rejected this claim. (Id.) (citing Doc. 33, Exs. N, U.). Thus, because the

16

Arizona Courts rejected this claim, this Court can only grant Petitioner relief if the Arizona

17

Courts’ decision was contrary to or an unreasonable application of clearly established

18

federal law. See Lockyer, 538 U.S. at 71.

19

1. Whether Petitioner’s sentence is the functional equivalent to a life sentence.

20

As the R&R recounts:

21

After holding an aggravation/mitigation hearing, on March 5, 1993, the trial

22

2

23
24
25
26
27
28

Petitioner objects to the R&R’s statements regarding when 28 U.S.C. § 2254(d)(2)
versus 28 U.S.C. § 2254(e)(1) applies. (Doc. 77 at 2). The Ninth Circuit Court of Appeals
has noted that there is confusion as to when one or the other of these sections applies or
whether they should be read in conjunction. Murray v. Schriro, 745 F.3d 984, 1001 (9th
Cir. 2014) (“Since Kesser, our panel decisions appear to be in a state of confusion as to
whether § 2254(d)(2) or (e)(1), or both, applies to AEDPA review of state-court factual
findings.”). Like the Court in Murray, this Court will, “review [Petitioner’s] challenges to
state-court findings that are based entirely on the record for ‘an unreasonable determination
of the facts.’ See 28 U.S.C. § 2254(d)(2); Kesser, 465 F.3d at 358 n. 1. [This Court] do[es]
not consider any new evidence as to claims adjudicated on the merits by the state court.
See Pinholster, 131 S.Ct. at 1401.”
3

This Court previously determined Petitioner did not waive his right to bring a
collateral challenge to his sentence. (Doc. 47 at 9-10).
-2-

court sentenced Petitioner to life imprisonment, without the possibility of
parole until Petitioner had served twenty-five years, for each of the two firstdegree murder convictions, and seven-and-one-half years’ imprisonment for
the attempted armed robbery conviction. (Doc. 33, Ex. H at 1-2.) The trial
court ordered the three sentences to run consecutively. (Id.) The consecutive
nature of the three sentences requires that Petitioner serve a minimum of 57.5
years’ imprisonment. (Doc. 12 at 2.).
…
Petitioner argues that he is entitled to habeas corpus relief based on Graham
and Miller because his aggregate sentence of 57.5 years to life imprisonment
is functionally equivalent to life without parole. (Doc. 1 at 7; Doc. 31 at 5.)
Petitioner was 16 or 17 years old at the time of his sentencing and he argues
that his life expectancy is less than seventy-five years due to the toll of
prolonged incarceration. (Doc. 12 at 25.) Petitioner will be approximately
seventy-four years old when he becomes eligible for parole.

1
2
3
4
5
6
7
8
9

(Doc. 69 at 2, 13).

10

The parties have not cited, and the Court has not located, a case that draws a line

11

which says that a number of years in prison, or an age at the time of parole eligibility,

12

converts a sentence of a particular length to a “functional equivalent” life sentence. As an

13

example, the Ninth Circuit Court of Appeals has held that a 254-year sentence violated

14

Graham’s requirement that a juvenile (nonhomicide) offender be given some opportunity

15

to reenter society. (Doc. 69 at 13). Obviously, however, 57.5 years is substantially less

16

than 254 years when considering human life expectancy.

17

Assuming for purposes of this section that a functional equivalent life sentence is

18

subject to Miller, the Court finds Petitioner in this case did not receive the functional

19

equivalent of a life sentence. Petitioner will be eligible for parole when he is 74 years old.

20

The Court does not agree with Petitioner that attaining the age of 74 is the equivalent of

21

death.

22

consecutive nature of the three sentences requires that Amaral serve a minimum of 57.5

23

years, the length of the consecutive sentences does not make them the functional equivalent

24

of a life sentence without parole[]” (Doc. 33-4 at 36), was not contrary to nor an

25

unreasonable application of clearly established federal law, nor an unreasonable

26

determination of the facts. (See Doc. 69 at 12-13).

Accordingly, the Arizona Court of Appeals holding that, “… although the

27

Additionally, while the Court notes that Petitioner argues that he has a shorter life

28

expectancy due to his incarceration, Petitioner offers no evidence of his personal life

-3-

1

expectancy; nor does Petitioner offer an alternative life expectancy this Court should adopt.

2

(See Doc. 12 at 25). Thus, on this record, Petitioner has not established that he will be

3

deceased well in advance of 74 years of age such. Accordingly, his argument for an

4

unspecified, alternative life expectancy fails.

5

Based on the foregoing, because Petitioner did not receive a life sentence, by any

6

definition, Miller does not apply. Thus, the Petition in this case will be denied for this

7

reason.

8

2. Whether functional life equivalent sentences are barred by Miller

9

Alternatively, assuming Petitioner’s sentence was the functional equivalent of a life

10

sentence and that the Arizona Courts unreasonably applied clearly established federal law

11

in concluding otherwise, whether a functional equivalent life sentence (rather than an actual

12

life sentence) is subject to Miller remains an open question. Specifically, the Ninth Circuit

13

Court of Appeals has held that:

14
15
16
17
18
19
20

Miller’s prohibition of mandatory life-without-parole sentences for juvenile
offenders rested in part on the premise that “a distinctive set of legal rules”
applies to a life-without-parole term for juveniles. 132 S. Ct. at 2466.
Because such a term is the “ultimate penalty for juveniles . . . akin to the
death penalty,” id. it “demand[s] individualized sentencing,” including
consideration of the juvenile’s age and the circumstances of the crime, id. at
2467. Miller noted, however, that “no other sentences” “share [these]
characteristics with death sentences.” Id. at 2466 (quoting Graham v.
Florida, 560 U.S. 48, 69 . . . (2010)). There is a reasonable argument that
Miller thus applies only to life-without-parole sentences.
Demirdjian v. Gipson, 832 F.3d 1060, 1076-77 (9th Cir. 2016).

21

In Petitioner’s case, the Arizona Court of Appeals held that Petitioner did not

22

receive a life without the possibility of parole sentence. (Doc. 33-4 at 36) (“Amaral was

23

not sentenced to life without parole; both life sentences provided for the possibility of

24

parole after twenty-five years.”). For Petitioner to prevail in this case, this Court would

25

have to find that the Arizona Court of Appeals determination that Miller did not apply to

26

cases where the sentence was allegedly the functional equivalent of life without the

27

possibility of parole, but not an express life without the possibility of parole sentence, was

28

contrary to or an unreasonable application of federal law. Given that the Ninth Circuit

-4-

1

Court of Appeals has already held that this issue in an open question, (see Demirdjian, 832

2

F.3d at 1076-77),4 this Court cannot conclude that the Arizona Court of Appeals

3

determination was contrary to or an unreasonable application of clearly established federal

4

law. (See Doc. 69 at 13).5 As a result, the Court will deny the Petition in this case on this

5

alternative basis.

6

3. Whether Miller applies to non-mandatory sentences.

7

As a second alternative, the Court will consider whether Miller applies to non-

8

mandatory sentences. Petitioner objects to the R&R’s conclusion that Miller does not

9

apply to non-mandatory sentences. (Doc. 77 at 5 (“The R&R misidentified the clearly

10

established law and focused solely on whether the sentence was ‘mandatory’ and ‘LWOP

11

in name and in fact.’... [Petitioner] objects to this misidentification….”)).6

12

The R&R correctly summarized the state of the law as follows:

13

In Miller, the Supreme Court held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders.” Miller, 567 U.S. at 479. In Miller, the Court
did not prohibit the imposition of life without parole, but required that when
imposing such a sentence the court must consider the defendant’s age and
age-related characteristics. Id. at 479-80. In Montgomery, the Court held that
Miller applies retroactively to cases on collateral review. Montgomery, 136
S. Ct. 718. In determining whether Miller announced a new substantive rule
that should apply retroactively under Teague v. Lane, 489 U.S. 288 (1989),
the Court in Montgomery referred to language from its decision in Miller

14
15
16
17
18
4

19

Petitioner argues that Demirdjian was wrongly decided. (Doc. 77 at 7 n.7). Obviously,
this Court cannot overrule a Ninth Circuit Court of Appeals decision.

20

5

21
22
23
24
25
26

Petitioner makes two objections to the R&R’s conclusion on this point. First, Petitioner
lists several cases wherein, petitioner argues, those courts held that Miller applies to de
facto life without the possibility of parole sentences. (Doc. 77 at 8). Assuming Petitioner
is correct regarding the holdings of these cases, it does not impact the fact that no Supreme
Court case has made these lower court holdings clearly established federal law as
determined by the United States Supreme Court. Thus, this objection is overruled. Second,
Petitioner argues that the Ninth Circuit Court of Appeals has held that his theory of relief
is viable. (Doc. 77 at 8). However, the Ninth Circuit Court of Appeals case on which he
relies, Moore v. Bitner, 725 F.3d 1184 (9th Cir. 2013), was not deciding a Miller claim.
Instead it was deciding a Graham, nonhomicide claim. Because Demirdjian was
specifically deciding a Miller claim, this Court will rely on the holding of Demirdjian.
Therefore, this objection is also overruled.
6

27
28

As Petitioner’s objection shows, Petitioner believes the R&R addressed both whether his
sentence was mandatory and whether his sentence was life without the possibility of parole.
In replying to the objection, Respondents did not dispute this characterization of the R&R.
(Doc. 78). Accordingly, the Court has addressed whether Petitioner received a
“mandatory” sentence de novo in considering Petitioner’s objection.
-5-

stating that a sentence of life without parole should be reserved for “all but
the rarest of juvenile offenders, those whose crimes reflect permanent
incorrigibility.” Montgomery, 136 S. Ct. at 734 (citing Miller, 132 S. Ct. at
2469). In Montgomery, the Court interchangeably used concepts of
“irretrievable depravity,” “permanent incorrigibility,” and “irreparable
corruption,” in its discussion of the retroactivity of Miller. See Montgomery,
136 S. Ct at 733-34. The Court concluded that Miller “did not require trial
courts to make a finding of fact regarding a child’s incorrigibility.” Id. at 735.
The Court noted that “[w]hen a new substantive rule of constitutional
law is established, [the] Court is careful to limit the scope of any attendant
procedural requirement to avoid intruding more than necessary upon the
States’ sovereign administration of their criminal justice systems.” Id. The
Court explained that “[t]he procedure Miller prescribes” is “[a] hearing
where ‘youth and its attendant characteristics’ are considered as sentencing
factors . . . .” Id. (quoting Miller, 132 S. Ct at 2460). However, the Court
stated that “Miller did not impose a formal fact finding requirement . . . .”
Montgomery, 136 S. Ct. at 735.

1
2
3
4
5
6
7
8
9
10

(Doc. 69 at 6-7).

11

As discussed above, the R&R concluded that Petitioner exhausted a Miller claim in

12

the state courts and neither party objected to this conclusion. (Doc. 69 at 8). Finally, the

13

R&R concluded that the state court’s decision that Petitioner was not entitled to relief under

14

Miller was not contrary to or an unreasonable application of clearly established federal law,

15

or an unreasonable determination of the facts; therefore, Petitioner is not entitled to relief

16

in this case. (Doc. 69 at 13). Petitioner has objected to this conclusion.

17

The Arizona Court of Appeals held,

18

“the consecutive nature of the sentences was not mandatory” because
“[u]nder Arizona law, whether to impose consecutive or concurrent
sentences rests with the discretion of the trial judge” and the trial court “only
determined consecutive sentences to be appropriate after considering
testimony provided at a mitigation hearing which addressed, among other
matters relevant to sentencing, Amaral’s age and ‘the characteristics and
circumstances attendant to it.’”

19
20
21
22

(Doc. 69 at 12).

23

This Court agrees with the R&R that that Arizona Court of Appeals conclusion is

24

not contrary to or an unreasonable application of clearly established federal law. (Doc. 69

25

at 13). Specifically, in Petitioner’s case, he did not receive a “mandatory” life without

26

parole sentence. In fact, Petitioner received a 25-year sentence with the possibility of

27

parole thereafter on each of his homicide charges. (Doc. 69 at 2).7

28

7

Petitioner argues that his sentence was mandatory because the trial judge mistakenly said
that consecutive sentences were required. (Doc. 77 at 1.) While the trial judge may have
-6-

1

Miller, by its express language, applies only to juveniles who received mandatory

2

life without the possibility of parole sentences. 567 U.S. at 479.8 However, as this Court

3

discussed at length in its prior orders, there appears to be a lingering question among courts

4

as to whether Miller is actually limited to its express language. (Docs. 47 and 60).

5

Specifically, in Montgomery and Tatum the Supreme Court made statements that hint at

6

Miller applying to many more sentencing schemes. (Doc. 69 at 6-7). And Petitioner has

7

cited a number of courts that have held that Miller applies to juveniles in discretionary

8

sentencing schemes. (Doc. 77 at 4-6).

9

However, as Respondents point out in the response (Doc. 78 at 1-4) the scope of

10

Miller remains an unsettled question. Thus, the decision of the Arizona Courts in this

11

regard cannot be contrary to or an unreasonable application of clearly established federal

12

law. Accordingly, habeas relief will be denied on this second alternative basis.

13

Certificate of Appealability

14
15
16
17

The R&R recommends that this Court deny a certificate of appealability because
Petitioner has not made a substantial showing of the denial of a constitutional right. (Doc.
69 at 17). Petitioner objects to this recommendation. (Doc.77 at 9-10). Respondents
addressed this issue in their reply to the objections. (Doc. 78 at 5).

18
19
20

The Court agrees with the R&R. Jurists of reason would not find this Court’s
assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529
U.S. 473, 483-84 (2000).9 Petitioner has not made a substantial showing of the denial of a

21

23

made a mistake under Arizona law (or may have just misspoke); that is an error of state
law that Petitioner should have raised on direct appeal. Errors of state law are not
cognizable on habeas. Estelle v. McGuire, 502 U.S. 62, 67 (1991). Alternatively, the Court
overrules this objection for the reasons stated in the R&R. (Doc. 69 at 12 n. 5).

24

8

22

26

See also Aguilar v Ryan, CV–14–02513–PHX–DJH–BSB, 2016 WL 8944352, at **7–
15 (D. Ariz. Sept. 1, 2016), report and recommendation adopted, CV–14–02513–PHX–
DJH, 2017 WL 2119490 (D. Ariz. May 16, 2017), notice of appeal filed (May 16, 2017).
Here, the Court notes that the R&R did not reach the issue of whether Petitioner’s
sentencing before the state court complied with Miller. (Doc. 69 at 11 n. 4).

27

9

25

28

While the Court acknowledges there are open questions as to the breadth of Miller, given
those open questions, it is not debatable that Petitioner has not shown that the opinion of
the Arizona Court of Appeals was not contrary to or an unreasonable application of clearly
established federal law.
-7-

1

constitutional right. See 28 U.S.C. § 2253(c)(2). Thus, a certificate of appealability will

2

be denied.

3

Conclusion

4
5
6
7
8

IT IS ORDERED that the R&R (Doc. 69) is accepted and adopted, the objections
are overruled (Doc. 77) and the Clerk of the Court shall enter judgment accordingly.
IT IS FURTHER ORDERED that the request for a certificate of appealability is
denied.
Dated this 20th day of December, 2018.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-