Jensen v. Young et al
Filing
12
OPINION AND ORDER denying as moot 8 Motion to Appoint Counsel ; granting 9 Motion to Dismiss. Signed by U.S. District Judge Roberto A. Lange on 2/15/19. (Delivered to Paul Dean Jensen, Jr. via US Postal Service) (JLS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
PAUL DEAN JENSEN JR.,
4:18-CV-04041-RAL
Plaintiff,
OPINION AND ORDER GRANTING
RESPONDENTS' MOTION TO DISMISS
DARREN YOUNG, WARDEN;
and JASON RAYNSBORG,
Defendants.
Petitioner, Paul Dean Jensen Jr.(Jensen) filed a pro se petition under 28 U.S.C. § 2254 for
a writ of habeas corpus alleging that his 200-year sentence with the possibility of parole is cruel
and unusual punishment violating the Eighth Amendment and contravening the holdings of
Graham v. Florida. 560 U.S.48(2011), Miller v. Alabama. 567 U.S. 460(2012), and Montgomerv
V. Louisiana. 136 S. Ct. 718(2016). Docs. 1,11. Defendants Darren Young, Warden of the Mike
Durfee State Prison, and Marty Jackley,' then Attorney General of the State of South Dakota,
moved to dismiss Jensen's petition, arguing that the petition fails to state a claim upon which relief
can be granted because Jensen was resentenced in June 2016 in accordance with recent Supreme
Court precedent. Docs. 9, 10. For the reasons explained below, the 200-year sentence imposed
on Jensen with the possibility of parole does not contravene the provision of the Eighth
'
Under Rule 25(d)ofthe Federal Rules ofCivil Procedure, Marty Jackley's successor in the office
of South Dakota Attorney General is automatically substituted as the named party in a case ofthis
nature.
Amendment prohibiting cruel and unusual punishment as interpreted in Graham. Miller, and
Montgomery. Therefore, Defendants' motion to dismiss is granted.
I.
Procedural Background
On January 14, 1996, fourteen-year-old Jensen and his co-defendant Shawn Springer—
after discussing a plan to do so—kidnapped and robbed Michael Hare, and Jensen then murdered
Hare.2 South Dakota v. Jensen. 1998 SD 52,
3-13, 579 N.W.2d 613, 615-16. After being
transferred to adult court, Jensen was tried before a jury and found guilty of first degree murder,
kidnapping, and various other charges. Idf 17,579N.W.2dat616; Doc. 10-1 at2. On November
26, 1996, Judge Steven L. Zinter ofthe Sixth Judicial Circuit of the State of South Dakota held a
sentencing hearing. Doc. 10-5. Jensen was sentenced to life in prison without parole^ in
accordance with South Dakota statutes in 1996. Jensen. 1998 SD 52,
62, 64, 579 N.W.2d at
624-25. Judge Zinter then informed Jensen that the time for taking an appeal was thirty days and
appointed counsel to represent Jensen on appeal. Doc. 10-5 at 3.
Jensen filed a direct appeal to the Supreme Court of South Dakota challenging various
issues. Jensen. 1998 SD 52, ^ 18, 579 N.W.2d at 616. That court held, in part, that Jensen's
transfer to adult court was supported by substantial evidence and that the sentence of life
imprisonment without the possibility of parole was not cruel and unusual punishment. Id. Hlf 55.
64, 579 N.W.2d at 623, 625. However, the court noted that "the characterization of his plight as
'without any chance offreedom' is not entirely accurate. There is always the chance the legislature
will pass new laws that will lessen Jensen's term in prison."
62 n.l, 579 N.W.2d at 624 n.l.
^ A more complete factual background ofthe kidnapping and ultimate murder ofMichael Hare can
be found at South Dakota v. Jensen. 1998 SD 52, 579 N.W.2d 613.
^ Under SDCL § 24-15A-32 (both the present and 1996 form), a defendant who receives a life
sentence is "not eligible for parole."
Following Miller, in which the Supreme Court of the United States held that a juvenile
homicide offender could not be sentenced to life in prison without parole absent consideration of
the mitigating factors of youth, 567 U.S. at 489, on June 20, 2013, Jensen filed a motion to correct
an illegal sentence in state court. South Dakota v. Jensen. 2017 SD 18,^ 5, 894 N.W.2d 397, 399;
Doc. 10 at 5-6. The state court issued several Orders to Stay due to uncertainty about the
retroactive applicability of Miller. Doc. 10 at 6. On January 25, 2016, the Supreme Court of the
United States decided Montgomerv. holding that Miller constitutes a substantive rule of
constitutional law, which applies retroactively in Juvenile murder cases, Montgomerv. 136 S. Ct.
at 736.
On June 2 and 3, 2016, Judge John L. Brown of the Sixth Judicial Circuit of the State of
South Dakota held a resentencing hearing for Jensen. Jensen. 2017 SD 18, H 5, 894 N.W.2d at
399; Doc. 10-1. "[BJoth the State and Jensen presented expert testimony on the mitigating qualities
of Jensen's youth, namely evidence related to Jensen's childhood and Jensen's emotional, social,
psychological, and intellectual attributes as a Juvenile offender [and on] on Jensen's changed,
matured character as an adult." Jensen. 2017 SD 18, TI 5, 894 N.W.2d at 399. After considering
Miller. Montgomerv. the evidence presented, mitigating qualities of youth, the nature and
circumstances ofthe crimes, and the prospects for rehabilitation. Judge Brown resentenced Jensen
to 200 years in prison for the first-degree murder conviction and 200 years in prison for the
kidnapping conviction, with the sentences to run concurrently. Id
5, 22, 894 N.W.2d at 399,
403; Doc. 10-1. Judge Brown then informed Jensen that the time for taking an appeal was thirty
days and appointed counsel to represent Jensen on appeal. Doc. 10-1 at 4. Jensen timely filed a
notice of appeal to the Supreme Court of South Dakota. See Doc. 10-7 at 1.
On April 19, 2017, the Supreme Court of South Dakota affirmed Jensen's June 3, 2016
sentence and held that Jensen's sentence was not a violation of the Eighth Amendment's
prohibition on cruel and unusual punishment. Jensen. 2017 SD 18, H 18, 894 N.W.2d at 402. The
court determined that Jensen's sentence comported with Miller, which held that the Eighth
Amendment forbids sentencing schemes that mandate life in prison without parole for juveniles,
67 U.S. at 489, because Jensen received an individualized sentence and did not receive a mandatory
life sentence without the possibility of parole, Jensen. 2017 SD 18,
16-18, 856 N.W.2d at 402.
The court reasoned that Jensen's 200-year sentence is not the functional equivalent of a life
sentence because he has the opportunity for release at age 39. Id.
13, 16, 856 N.W.2d at 401-
The court also determined that Judge Brown did not abuse his discretion or abdicate his
sentencing discretion to the parole board by saying:
Looking at this, this is somewhat unique. I was thinking there's not very
many people that are sentenced to the penitentiary for any period oftime that have
an opportunity to come back before the Court after a period of, a significant period
of time beyond the two years that's available and really have a full-blown
resentencing hearing.
As I said, I thought that was unique and then I got to thinking a little more
about that. Actually, that's what our parole system is. Maybe this Court doesn't sit
as a parole board. The Court probably isn't well equipped to perform that function.
Id.
19-22, 856 N.W.2d at 402-03. The court reasoned that Judge Brown "did not leave for the
parole board to decide Jensen's sentence," but instead decided Jensen's sentence "after weighing
and considering all the evidence presented, the mitigating qualities of youth, the circumstances of
Jensen's crime, and Jensen's prospects for rehabilitation." Id H 22, 856 N.W.2d at 403.
Jensen then filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with
this Court on April 18, 2018. Doc. 1. Following a preliminary review ofthe petition pursuant to
Rule 4 ofthe Rules Governing Section 2254 Cases in the United States District Courts, this Court
ordered Defendants to respond. Doc. 6. Defendants filed a motion to dismiss Jensen's petition
pursuant to Rule 12(b)(6) ofthe Federal Rules ofCivil Procedure and 28 U.S.C. § 2254(d)(1) and
(2), Doc. 9, and submitted a memorandum in support ofthat motion, Doc. 10.
II.
Discussion
A. Statute of Limitations
A person in custody pursuant to a state courtjudgment may petition a federal district court
for a writ of habeas corpus on the ground that he or she is in custody in violation of the United
States Constitution or federal law. 28 U.S.C. § 2254. The prisoner is eligible for "relief if the
underlying state court merits ruling was 'contrary to, or involved an unreasonable application of,
clearly established Federal law' as determined by [the Supreme] Court." Virginia v. LeBlanc. 137
S. Ct. 1726, 1727, reh'g denied. 138 S. Ct. 35 (2017)(quoting 28 U.S.C. § 2254(d)(1)). Jensen's
petition was filed after the enactment of Antiterrorism and Effective Death Penalty Act(AEDPA).
Pub. L. No. 104-132, 110 Stat. 1214 (1996); Doc. 1. Therefore, AEDPA applies to this petition.
See Lindh v. Murphv. 521 U.S. 320, 336(1997): see also Rvan v. Clarke. 387 F.3d 785, 789 (8th
Cir. 2004). Under 28 U.S.C. § 2244(d)(1), a petition for writ must be filed within a one-year
period. See also McMullan v. Roper. 599 F.3d 849, 851 (8th Cir. 2010); Boston v. Weber. 525
F.3d 622,624 (8th Cir. 2008). The one-year AEDPA statute of limitations runs from the latest of
four specified dates, one of which is relevant here: "(C)the date on which the constitutional right
asserted was initially recognized by the Supreme Court, ifthe right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral review[.]" 28 U.S.C.
§ 2244(d)(1)(C).
Jensen maintains that he is being held in violation ofthe Eighth Amendment and relies on
three cases decided in the last eight years by the Supreme Court of the United States, Graham v.
Florida. Miller v. Alabama, and Montgomery v. Louisiana. Doc. 11. Such reliance would prompt
application of§ 2244(d)(1)(C) to determine the proper start date for AEDPA's one-year statute of
limitations, but only if certain prerequisites are satisfied. In order for § 2244(d)(1)(C) to apply,
the new constitutional right asserted must be present in Jensen's case, and, if present, the right
must have retroactive application to cases on collateral review. 28 U.S.C. § 2244(d)(1)(C).
Montgomery retroactively applied Miller, making the date Montgomery was decided, January 25,
2016, the proper start date for AEDPA's one-year statute of limitations on Jensen's claim. See
Montgomery. 136 S. Ct. at 732. However,"[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinentjudgment or claim
is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C.
§ 2244(d)(2). Jensen had an applicable pending claim in state court, which tolled the one-year
statute of limitations until 90 days after the April 19, 2017 holding ofthe Supreme Court of South
Dakota affirming Jensen's sentence. See Boston. 525 F.3d at 624 (state conviction becomes final
after all direct appeals are final, followed by ninety days to file a petition for certiorari); Curtiss v.
Mount Pleasant Corr. Facility. 338 F.3d 851, 853 (8th Cir. 2003)(same); Springer v. Doolev. No.
3:15-CV-03008-RAL, 2015 WL 6550876, at ""3-4 (D.S.D. Oct. 28, 2015)(retroactive application
of new constitutional rights applies to cases on collateral review (citing 28 U.S.C. §
2244(d)(1)(C))). Jensen filed his federal habeas petition on April 18, 2018, thereby within the
AEDPA statute of limitations.
B. Graham v. Florida Challenge
In Graham,a juvenile was sentenced to life imprisonment for armed burglary and 15 years
imprisonment for attempted armed robbery following a conviction for violation of probation. 560
U.S. at 57. Because Florida had abolished its parole system, Graham had no possible opportunity
for early release, except executive clemency. Id. The Supreme Court used the categorical
approach in analyzing whether the Constitution permits such sentencing schemes. Id. at 61-62
(noting that the challenge was not "to a particular defendant's sentence, but [rather] a sentencing
practice itself). The Supreme Court observed that the age of the offender and the nature and
circumstances ofthe crime were important to consider in determining what sentence is appropriate
for Juveniles. Id. at 62-69.
The Supreme Court noted many differences between Juveniles and adults; Juveniles have
an undeveloped sense of responsibility, are more susceptible to negative influenees, and do not
have fully developed character traits deserving ofthe most severe punishment.'* Id. at 68; see also
Roper V. Simmons. 543 U.S. 551, 569 (2005) (comparing further differences); Thompson v.
Oklahoma. 487 U.S. 815, 835-36 (1988)(same). As for the nature of the offense, the Supreme
Court reiterated that Juveniles"who do not kill, intend to kill, or foresee that life will be taken are
categorically less deserving" of life imprisonment without parole as compared to murderers.
Graham. 560 U.S. at 69; see also Kennedv v. Louisiana. 554 U.S. 407, 421 (2008)(applying
standard to adult defendant). Finally, penological goals did not Justify Juvenile sentences of life
without parole because Juveniles are less culpable and less susceptible to deterrence, and because
'* Because the imposition ofthe death penalty on offenders who were Juveniles at the time oftheir
offense violates the Eighth and Fourteenth Amendments, Roper v. Simmons. 543 U.S. 551, 568
(2005),the Supreme Court determined that the most severe and available punishment for Juveniles
is life imprisonment without the possibility of parole. Graham. 560 U.S. at 70-71.
a State should not predetermine that a juvenile is incapable of rehabilitation. Graham. 560 U.S. at
71-75.
The Supreme Court ultimately held that the imposition oflife imprisonment without parole
for Juveniles in nonhomicide crimes is prohibited by the Eighth Amendment. Id. at 74. The
Supreme Court did not focus as much on the nominal classification ofthe sentence, whether a life
sentence or term-of-years, but found it unconstitutional to sentence a nonhomicide juvenile
offender to a "sentence [that] guarantees [the offender] will die in prison without any meaningful
opportunity to obtain release." Id at 79. The Court clarified the scope of its prohibition:
A State is not required to guarantee eventual freedom to a juvenile offender
convicted of a nonhomicide crime. What the State must do, however, is give
defendants like Graham some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation. It is for the State, in the first instance, to
explore the means and mechanisms for compliance. It bears emphasis, however,
that while the Eighth Amendment prohibits a State from imposing a life without
parole sentence on ajuvenile nonhomicide offender, it does not require the State to
release that offender during his natural life. Those who commit truly horrifying
crimes as juveniles may turn out to be irredeemable, and thus deserving of
incarceration for the duration of their lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes committed
before adulthood will remain behind bars for life. It does prohibit States from
making the judgment at the outset that those offenders never will be fit to reenter
society.
Id. at 75. Thus, if the State imposes a life sentence on a juvenile nonhomicide offender, it must
provide thejuvenile "with some realistic opportunity to obtain release before the end ofthat term."
Id at 82.
Jensen's focal contention is that his 200-year sentence with the possibility of parole is the
functional equivalent of a life sentence because his parole is discretionary and does not afford him
a "meaningful opportunity" to obtain release as defined in Graham. Doc. II at 6. However, the
"meaningful opportunity to obtain release" standard outlined in Graham specifically does not
apply to juveniles such as Jensen who have been convicted of homicide crimes.
Graham. 560
U.S. at 82; Garza v. Frakes. No. 8:17CV474, 2018 WL 1710183, at *3 (D. Neb. Apr. 9, 2018)
("[Petitioner] is unable to cite to any Supreme Court authority clearly holding that a discretionary
sentence like his—a term of years for murder with the possibility of parole within his lifetime—is
equivalent to a life sentence without the possibility of parole and is cruel and unusual punishment
in violation ofthe Eighth Amendment."); Laird v. Rvan. No. CV-17-00482-PHX-JAT, 2018 WL
4112150, at *1-2(D. Ariz. Aug. 29, 2018), appeal docketed. No. 18-16634 (9th Cir. Aug. 30,
2018)(holding that Graham does not apply to petitioner's 129-year aggregate sentence for various
crimes and a consecutive life sentence with the possibility of release after 25 years in prison for a
homicide offense).
Additionally, even ifJensen was not a homicide offender. Miller does not necessarily mean
that a sentence of life with the possibility of parole for a juvenile offender is unconstitutional. See
Miller. 567 U.S. at 465 ("[Mjandatory life without parole for those under the age of 18 at the time
oftheir crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'"
(emphasis added)); Graham. 560 U.S. at 82("The Constitution prohibits the imposition of a life
without parole sentence on ajuvenile offender who did not commit homicide.''''(emphasis added)).
The Eighth Circuit has noted that Graham's holding is limited by its terms. United States v. Spires.
628 F.3d 1049, 1055 n.3 (8th Cir. 2011) (refusing to "broaden the analysis" of Graham to
determine the constitutionality of using prior convictions to enhance the sentence of a convicted
adult); United States v. Scott. 610 F.3d 1009, 1018 (8th Cir. 2010) (Graham established a
eonstitutional limit only "on certain sentences"). Many courts, both state and federal, have
wrestled with the applieation of Graham's holding to a term-of-years sentence when the term does
not hold promise for parole or release. See, e.g.. Bunch v. Smith. 685 F.3d 546, 552 (6th Cir.
2012)("[Cjourts across the country are split over whether Graham bars a court from sentencing a
juvenile nonhomlclde offender to consecutive, fixed terms resulting in an aggregate sentence that
exceeds the defendant's life expectancy."). However, Jensen's sentence involves the possibility
of parole within his life expectancy.
When a term-of-years sentence includes the possibility of parole, courts have found no
Graham violation if the defendant becomes eligible for parole within his or her expected lifetime.
See, e.g.. United States v. Mathurin. 868 F.3d 921, 935 (11th Cir. 2017) (holding that the
defendant's sentence comported with Graham when,taking into account the defendant's maximum
good-time credit available, he could be released within his expected lifetime at age 67), cert,
denied. 139 S. Ct. 55 (2018), reh'g denied. 139 S. Ct. 585 (2018); Hart v. Beard. No.
SACV152129RPLA,2016 WL 8456753, at *5(C.D. Gal. Nov. 16, 2016)(holding that petitioner's
sentence did not violate any constitutional standards because he "still had significant life
expectancy" after age 51 when he becomes eligible for parole), report and recommendation
adopted. No.SACV152129RPLA,2017 WL 901086(C.D. Cal. Mar.6, 2017); Springer. 2015 WL
6550876, at *5-8 (holding that a 261-year sentence where the defendant would be eligible for
parole at the age of49 was not a de facto life without the possibility ofparole sentence as prohibited
by Graham): Moulavi v. Long. No. SA CV 13-31-JLS (PLA), 2015 WL 4273332, at *14 (C.D.
Cal. Feb. 3, 2015)("Because petitioner's sentence did not mandatorily impose life without parole
and allows for the possibility of parole well within his expected lifetime, it does not violate
constitutional norms."), report and recommendation adopted. 2015 WL 4304764 (C.D. Cal. July
10, 2015); Silva v. McDonald. 891 F. Supp. 2d 1116, 1131 (C.D. Cal. 2012)("Notwithstanding
the holdings in Roper. Graham,or Miller,this Court is not aware ofany controlling Supreme Court
precedent which holds, or could be construed to hold, that the sentence at issue here of 40-yearsto-life with the possibility of parole [at the earliest at age 55, but not later than age 60], for a
juvenile who was 16 years old at the time of the nonhomicide crime, violates the Eighth
Amendment.").
Consistent with that logic, courts have held that when parole eligibility under a term-ofyears sentence occurs close to or exceeds the defendant's life expectancy, the sentence violates
Graham. See, e.g.. Moore v. Biter. 725 F.3d 1184, 1191-92(9th Cir. 2013)(finding sentence of
254 years with no opportunity for parole eligibility within defendant's lifetime "materially
indistinguishable from a life sentence without parole"); California v. Caballero. 282 P.3d 291,295
(Cal. 2012)(finding a 110-year sentence equates a de facto life sentence and focusing on whether
the parole eligibility date falls outside the defendant's life expectancy); Flovd v. Florida. 87 So.
3d 45, 46-47 (Fla. Dist. Ct. App. 2012)(per curiam)(holding defendant received a de facto life
sentence where he would not be eligible for parole until age 85 which exceeded his life
expectancy). Similarly, this Court previously reasoned that"term sentences virtually guaranteeing
an offender will die in prison without meaningful opportunity for release could be considered a
life sentence for the purpose of applying Graham or Miller." Boneshirt v. United States. No. CIV
13-3008-RAL, 2014 WL 6605613, at *8 (D.S.D. Nov. 19, 2014), cert, of appealabilitv denied.
No. 15-1118 (8th Cir. Apr. 15, 2015).
Given the foregoing, a comparison of Jensen's parole eligibility and life expectancy is
necessary to determine whether the constitutional right recognized in Graham affects Jensen's
case. First, Jensen correctly asserts that he is currently scheduled for initial parole eligibility on
June 12, 2021. Doc. 11 at 2; Adult Corrections. Offender Locator. S.D. Dep't of Corr.,
https://doc.sd.gov/adult/lookup/ (last visited Feb. 1, 2019)(insert "Paul Jensen" into appropriate
name fields). On that date, Jensen will be 39 years old. Jensen does not dispute this calculation
of his initial parole eligibility. Doc. 10 at 9.
Jensen argues that his life expectancy is "without a question" before age 116, Doc. 11 at 7,
incorrectly using his good time release date ofJuly 27,2097,rather than his initial parole eligibility
date ofJune 12, 2021, to calculate his potential age at time of release. Doc. 11 at 2. Although it
is impossible to determine precisely how long any one person has to live, the question comes up
regularly enough, including previously before with this Court.
!
r, 2015 WL 6550876,
at *21: Boneshirt. 2014 WL 6605613, at *10. Using government resources and actuarial tables, a
15-year-old male's life expectancy (Jensen's age at sentencing) appears to range from the age of
71.7 to 82.9. 26 C.F.R. § 1.72-9 at tbl.I (providing 15-year-old male would live 56.7 more years,
or to the age of 71.7); 26 C.F.R. § 1.401(a)(9)-9 (providing 15-year-old male would live
67.9
additional
years,
or
to
the
age
of 82.9);
Acturial
Life
Table.
SSA,
http://www.ssa.gov/oact/STATS/table4c6.html (last visited Feb. 1, 2019)(providing 15-year-old
male would live 61.82 more years, or to age of76.82). Thus, Jensen's initial parole eligibility date
at age 39 is well within his lifetime.
Although Jensen is eligible for parole in two years, Jensen contends that this form of
discretionary parole does not afford him a"meaningful opportunity" to obtain release. The statutes
governing his parole eligibility provide that there is no right to parole per se; it is a form of
discretionary conditional release that may be granted by the Board ofPardons and Paroles. SDCL
§ 24-15-1.1. Shortly after Jensen's conviction. South Dakota enacted a new set ofstatutes granting
inmates parole as a matter of right, still subject to certain requirements and conditions, but such
statutes do not have retroactive effect to Jensen's case. SDCL § 24-15A-1 (providing the new
statute "do[es] not apply to persons sentenced to prison for crimes committed prior to July 1,
1996"); SDCL § 24-15A-38 (noting preconditions to parole supervision). Jensen seeks to use the
difference between the two sets of statutes to support his argument that he is not entitled to a
meaningful opportunity for release. Jensen argues diseretionary parole does not satisfy the
"meaningful opportunity" for release under Graham as would mandatory parole.
Jensen's argument, however, misconstrues the Supreme Court's use of the phrase
"meaningful opportunity." As stated in Graham and applied to Jensen, "[South Dakota] is not
required to guarantee eventual freedom to [Jensen]." Graham.560 U.S. at 75. Thus,the distinction
between discretionary and mandatory parole has no bearing on the analysis. What South Dakota
must do is afford Jensen "some meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation.'''' Id (emphasis added). Jensen has that opportunity beginning in two
When Jensen is 39, he will be "entitled to a hearing with the Board ofPardons and Paroles
to present [an] application for parole." SDCL § 24-15-8. Jensen will be paroled if he can
demonstrate that he has been confined for a length oftime sufficient to rehabilitate himself, is no
longer a danger to society, and has secured employment for the expected parole period in an
environment where he will be free from criminal influences. Id Unlike the petitioner in Graham.
Jensen will have the opportunity to demonstrate that the bad acts he committed as a juvenile are
not representative of his character. Graham. 560 U.S. at 79(emphasizing that Graham's sentence
"guarantee[d] he will die in prison ... even if he spends the next half century attempting to atone
for his crimes and learn from his mistakes"); cf Rudder v. Addison. 851 F.3d 1047, 1059 (10th
Cir.)(holding that petitioner's sentence for nonhomicide offenses that required him to serve 131.75
years in prison before he would be eligible for parole violated Graham), cert, denied sub nom.
Bvrd V. Rudder. 138 S. Ct. 475 (2017). If parole is denied, Jensen will be able to reapply eight
months later. SDCL § 24-15-10. Jensen's parole eligibility presents a realistic and meaningful
opportunity, perhaps even multiple opportunities, to obtain early release in his lifetime. Jensen
will have an opportunity to demonstrate that since his incarceration he has matured and has been
rehabilitated. Unlike in Graham, at Jensen's resentencing it was not determined "at the outset"
that Jensen was incapable of rehabilitation. Graham. 560 U.S. at 74, 79. Instead, Judge Brown
commented at sentencing about the possibility of Jensen being rehabilitated and purposefully
fashioned a sentence giving Jensen a chance for parole, rather than a life sentence without parole.
Jensen. 2017 SD 18, f 12, 894 N.W.2d at 401. Jensen has failed to show that the state court
unreasonably applied the cruel and unusual punishment constitutional standards set forth in
Graham because Graham explicitly applies to nonhomicide offenders, and even if Jensen was a
nonhomicide offender, his sentence allows him a "meaningful opportunity" to obtain release.
C. Miller v. Alabama and Montgomery v. Louisiana Challenge
Next, Jensen argues that he was sentenced in violation of the Supreme Court's holding in
Miller, which is retroactively applied to juvenile murder cases by
i. The Supreme
Court held in Miller "that mandatory life without parole for those under the age of 18 at the time
oftheir crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'"
132 S. Ct. at 2460. Miller consolidated the appeals oftwo juveniles, both of whom had received
mandatory life sentences without parole for murders committed at age fourteen. Id. The Supreme
Court reemphasized the "significant gaps" that exist between juveniles and adults, and required
sentencing courts to consider youth mitigating factors—as well as the "characteristics and
circumstances attendant" to the crime committed—^when imposing a state's harshest sentence on
juveniles. Id. at 2467-68. Because the sentences imposed in Miller were mandatory and wholly
precluded consideration of mitigating youth factors, the Supreme Court invalidated the sentences
under the Eighth Amendment.
The constitutional right recognized in Miller does not render Jensen's current sentence
unconstitutional. The Supreme Court noted in the very first paragraph of Miller that there is a
significant difference between mandated life imprisonment without the possibility of parole and
the lesser sentence of "life with the possibility of parole." Id at 2460. Although Jensen was a
juvenile at the time of his crime and was convicted of a crime that mandated life without parole,
he was resentenced in 2016 to a term of years. Additionally, Judge Brown did consider mitigating
youth factors when resentencing Jensen. After a two-day evidentiary hearing. Judge Brown found
that Jensen had matured and was not the same person as when he was convicted, that time served
of 20 years was sufficient retribution, but that there was "a great deal yet that he needs to
accomplish and to prove that he can function in society as a positive member of society." Jensen.
2017 SD 18,f 12,894 N.W.2d at 401. Judge Brown also informed Jensen that his earliest possible
parole date is in 2021, merely two years from the date of this Opinion and Order at age 39. See
Hack V. Cassadv. No. 16-04089-CV-W-ODS, 2019 WL 320586, at *1, 4-6(W.D. Mo. Jan. 24,
2019) (finding no Graham or Miller violation when a juvenile homicide offender, who was
sentenced to mandatory life without parole, will become eligible for parole by a newly enacted
statute after serving 25 years of incarceration); Juarez v. Davis. No. 3:16-CV-0843-G(BH),2018
WL 2164507, at *5-6(N.D. Tex. Mar. 28, 2018), report and recommendation adopted. 2018 WL
2150943 (N.D. Tex. May 10, 2018), appeal docketed. No. 18-10672 (5th Cir. June 7, 2018)
(finding no Graham or Miller violation when a juvenile homicide offender was serving a life
sentence with eligibility for parole after serving 40 years). Indeed, this Court in an earlier decision
found that it was not cruel and unusual punishment for the state court to have sentenced Jensen's
co-defendant, a slightly older juvenile who(unlike Jensen) did not fire the murder weapon at Hare,
to a longer 261-year sentence with a more distant initial parole eligible date in 2029. Springer.
2015 WL 6550876, at *5-9. Jensen did not receive a sentence of life without possible parole as
proscribed by Miller and Montgomery, so Ground I is dismissed.
D. Abuse of Discretion Challenge
Jensen argues under Ground 11 that Judge Brown abused his discretion in violation of
Jensen's constitutional rights by "leaving the Parole board to decide the [p]unishment of a minor,
[wjhether he serves an actual life sentence or not." Doc. 1 at 7. The question before this Court
under AEDPA is "whether the determination of the [Supreme Court of South Dakota] that there
was no abuse of discretion was 'an unreasonable application of. . . clearly established federal
law.'" Renico v. Lett. 559 U.S. 766, 773(2010)(quoting 28 U.S.C. § 2254(d)(1)). In Miller, the
Supreme Court held that ajudge "must have the opportunity to consider mitigating circumstances
before imposing the harshest possible penalty for juveniles." 132 S. Ct. at 2475. The Supreme
Court of South Dakota held that Judge Brown did not abuse his discretion by the comments he
made about the parole board because "the court did not leave for the parole board to decide
Jensen's sentence." Jensen. 2017 SD 18,^ 22,894 N.W.2d at 403. As previously discussed. Judge
Brown held a two-day resentencing hearing where he considered mitigating circumstances of
Jensen's youth.
During Jensen's resentencing. Judge Brown commented on the unique
circumstances of Jensen's case where he was being resentenced 20 years after he was initially
sentenced and said, "[ajctually, that's what our parole system is. Maybe this Court doesn't sit as
a parole board. The Court probably isn't well equipped to perform that function." Id.
19-22,
856 N.W.2d at 402-03. However, Judge Brown subsequently sentenced Jensen in accordance
with recent Supreme Court precedent as discussed above. Jensen has not shown that the holding
ofthe Supreme Court of South Dakota finding Judge Brown not to have abused his discretion was
an objectively unreasonable application of clearly established federal law within the meaning of
AEDPA. Therefore, Jensen is not entitled to federal habeas relief on Ground II.
E. Certificate of Appealability
When a district court issues an order under § 2254 adverse to the applicant it "must issue
or deny a certificate of appealability." Rules Governing Section 2254 Cases in the U.S. Dist. Cts.,
Rule II. This Court may issue a certificate of appealability only if a petitioner has "made a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a
substantial showing requires that the petitioner show that "reasonable jurists would find the district
court's assessment ofthe constitutional claims debatable or wrong." Slack v. McDaniel. 529 U.S.
473, 484 (2000); see also Khaimov v. Crist. 297 F.3d 783, 785 (8th Cir. 2002). Although courts
have disagreed about whether Miller should be applied to a term-of-years sentence, no reasonable
jurist could find that Jensen was resentenced to a mandated life imprisonment without parole. And
although courts have disagreed about whether Graham applies to a de facto life sentence without
a chance of parole for nonhomicide offenders, courts agree that Graham is limited to nonhomicide
offenders, which Jensen is not. Even if Graham did apply, no reasonable jurist could find that
Jensen's sentence precludes him from the possibility of parole within his lifetime, or that his
eligibility for parole does not afford him the meaningful opportunity to demonstrate maturity and
rehabilitation to the parole board.
III.
Conclusion
Therefore, it is hereby
ORDERED that Defendants' Motion to Dismiss, Doc. 9, is granted. It is further
ORDERED that Jensen's Motion for Appointment of Counsel, Doc. 8, is denied as moot.
It is further
ORDERED that no certificate ofappealability shall issue.
DATED this _(£^day of February, 2019.
BY THE COURT;
ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE
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