Opinion
CV-16-04607-PHX-DLR (JZB)
11-30-2023
Scott Lee DeShaw, Petitioner, v. Glenn Pacheco, et al., Respondents.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
In 2015, Petitioner Scott Lee DeShaw filed a second Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 40 at 19.) On May 19, 2022, the Ninth Circuit Court of Appeals granted Petitioner's request to file the petition.
I. SUMMARY OF CONCLUSION.
In 1996, a jury found Petitioner guilty of First-Degree Murder, Kidnapping, and Armed Robbery. In 1997, at a sentencing hearing, Petitioner called a psychologist, a counselor, and two other witnesses who testified regarding Petitioner's age-related characteristics and childhood. The court sentenced Petitioner to a natural life term of imprisonment for murder. In 2015, the Arizona Court of Appeals found that Petitioner's natural life sentence was imposed in accordance with the mandates of Miller v. Alabama, 132 S.Ct. 2455, 2469 (2012). Because the Arizona Court of Appeals could reasonably conclude that the sentencing judge considered Petitioner's age, childhood, and “emotional and moral immaturity,” its decision was not objectively unreasonable. The Court recommends that the Petition be denied.
II. BACKGROUND.
A. Factual and Procedural History.
The Arizona Court of Appeals found the following facts and procedural history as true:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
Defendant and Aaron Hoskins were accused of carjacking a red Suzuki Samarai and kidnapping and killing its eighteen-year-old female driver. The victim had been seen in Mesa driving the Suzuki at approximately 11:30 p.m. on July 31, 1994. The next day, officers from the Navajo County Sheriff's Office found the Suzuki, which had been “rolled.” When deputies called in the license plate number, they learned that Mesa police had issued an “attempt to locate” on the vehicle and the driver.
While deputies were investigating the rollover, witnesses gave detailed descriptions of two men they had seen crawling from under the Suzuki just after it crashed. They also stated that the men declined help and walked into the woods. Another witness reported that he had just seen two men coming out of the woods a short distance away. Officers found defendant and Hoskins, believing they were the two men.
The officers told the pair that they were stopping them to ask about the rolled vehicle and conducted a pat down for weapons. Hoskins told the officers he had a handgun, later determined to be the murder weapon. Defendant reached for his waistband and dropped a knife. Officers then frisked defendant and felt a hard object in defendant's pocket, removed it, and found a key ring, engraved with the victim's initials. Witnesses arrived and identified the pair as the men they had seen exiting the Suzuki. Deputies arrested the two.
Two days later, a state employee found the victim's driver's license along U.S. 60, east of Mesa. A search of the area revealed other wallet-sized items of the victim's. Her body, with two gunshot wounds, was found about six miles away.
Defendant was a juvenile, but he was transferred and tried as an adult. He moved to suppress the key ring. After an evidentiary hearing, the court ruled that the key ring had been found in a valid pat-down search for weapons. It also found that probable cause to arrest defendant existed and that the key ring would have been found in a search incident to arrest.
At trial, a witness testified that defendant and Hoskins left home together on foot at 10:00 or 11:00 p.m. on July 31, 1994. The witness did not know whether either or both returned home that night, but he had heard defendant say that he had stolen a gun from the father of a friend. Other
state's evidence supported that fact.
Defendant and Hoskins were next seen together at about 5:30 a.m.; August 1, 1994, driving a “little red truck” near Pinetop. They were seen again at about 7:00 a.m. crawling out from under the Suzuki about five to ten miles away. Hoskins retrieved something wrapped in a pink towel from the vehicle, and they walked away. The two were apprehended at approximately 7:00 p.m. that evening. A firearms expert testified that the bullets in the victim's body matched a spent bullet found in the home shared by defendant and Hoskins; all had been fired from the gun Hoskins had when arrested. A fingerprint expert testified that defendant's fingerprints, but not Hoskins', were on four items of the victim's property found along the highway. The victim's mother identified the key ring as her daughter's.
Detective Byers of the Mesa Police testified that the physical evidence indicated that the victim had been killed where she was found. He also stated that her body was about nineteen miles, or a thirty-minute drive, from where she last had been seen alive and about fifteen miles from defendant's house. From her body to Pinetop-Lakeside was about a three-hour drive. He also testified that if the victim had been abducted at 11:36 p.m. in Mesa and driven to the crime scene, defendant and Hoskins could have driven to defendant's house and then to Lakeside by 5:30 a.m. when they were first sighted in the Suzuki.
Two witnesses testified that, on several occasions before the murder, they had heard defendant and Hoskins discuss carjacking a vehicle. One witness testified that the pair had discussed either shooting the driver first or driving to the desert to shoot the driver and dump the body.(Doc. 48-1 at 3-6.)
On December 17, 1996, a jury found Petitioner guilty of First-Degree Murder, Kidnapping, and Armed Robbery. (Doc. 48-1 at 18.)
On September 5, 1997, Petitioner was sentenced to a term of natural life imprisonment for First-Degree Murder and terms of 15 years of imprisonment for Kidnapping and Armed Robbery, with all three sentences to run consecutively. (Doc. 481 at 25-28.)
B. Direct Appeal.
On March 23, 1998, Petitioner filed an appeal alleging error regarding a motion to suppress and prosecutorial misconduct. (Doc. 48-1 at 34.) On October 29, 1998, the Arizona Court of Appeals affirmed the “convictions and sentences imposed.” (Doc. 28-1 at 16.) On May 27, 1999, the Arizona Supreme Court denied a Petition for Review. (Doc. 48-1 at 99.)
C. Post-Conviction Review Proceedings.
1. Petitioner's Miller Claim.
On June 25, 2013, Petitioner filed a Notice of Post-Conviction Relief in the Superior Court of Maricopa County. (Doc. 39-1 at 37.) On July 8, 2013, the court dismissed the Notice. (Id. at 38.) The superior court denied relief explaining:
Defendant asserts that under Miller, a juvenile could not be sentenced to life imprisonment. This is a misreading of Miller which does not place a categorical ban on juvenile life sentences without the possibility of parole. Rather, in Miller, the Supreme Court ruled that a mandatory life sentence without the possibility of parole was unconstitutional. Hence, the judge or jury must have the opportunity to consider mitigating circumstances such as age prior to imposing either life with the possibility of parole or the harshest sentence possible for a juvenile, that being natural life without the possibility of parole.
In the instant case, the record demonstrates that the age of the Defendant was considered by the Court as a mitigating factor. Even after considering defendant's age as a mitigating factor, the Court chose to sentence him to the term of his natural life. Since the sentence of natural life without the possibility of parole was not statutorily mandated and the Court had the discretion to order life with the possibility of parole but chose not to, defendant has failed to demonstrate that Miller is a significant change in the law as applied to his case.(Doc. 39-1 at 38.)
On August 1, 2013, the trial court denied a motion for reconsideration finding that “[t]he record in this matter is clear that the sentencing judge took into account the age of the defendant as part of the sentencing determination (page 3 of sentencing transcript). Therefore, if Miller has retroactive application, its requirements regarding mitigation have been met in this matter and there is no basis for defendant to be relieved from the natural life sentence that was imposed upon him.” (Doc. 39-1 at 40.)
On April 21, 2015, the Arizona Court of Appeals granted review but denied relief to Petitioner. The court denied relief of Petitioner's claim finding:
We assume arguendo that Miller is retroactive. Even so, we deny relief. Miller prohibits mandatory life sentences without the possibility of parole for juvenile offenders. Id. at 2460. Deshaw's sentence to natural life was not mandatory. The trial court had the option to sentence to natural life or life with a possibility of parole after twenty-five years' imprisonment. Ariz. Rev. Stat. (‘‘A.R.S.”) §13-703(A) (1994). Further, in its determination of the appropriate sentence, the trial court gave great weight to Deshaw s ‘‘youthful age'' and ‘‘his emotional and moral immaturity.' The court also gave ‘‘significant weight'' to Deshaw's difficult childhood and ‘‘dysfunctional family experiences.'' Even so, the court believed Deshaw
should spend the rest of his life in prison. Therefore, the court took into account ‘‘how children are different'' and Deshaw's sentence to natural life complied with Miller.(Doc. 39-1 at 43.)
On January 5, 2016, the Arizona Supreme Court denied a petition for discretionary review. (Doc. 40 at 64.)
On April 4, 2016, Petitioner filed a petition for writ of certiorari in the Supreme Court of the United States. (Doc. 39-22 at 32.) On October 31, 2016, the Court granted the writ and remanded the matter to “the Court of Appeals of Arizona, Division One for further consideration in light of Montgomery [].” (Doc. 39-22 at 83.) On remand, the Arizona Court of Appeals ordered supplemental briefing “regarding the effect of Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and the effect, if any, of State v. Valencia, 241 Ariz. 206 (2016), on the issues to be decided in this case.” (Id. at 87.)
2. Pending State Decision on Stipulation to Remand for Sentencing.
On February 14, 2018, the State filed a waiver and stipulation stating it “waives the right to file a supplemental brief and stipulates that this matter should be remanded to the trial court for resentencing in light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016).” (Doc. 48-2 at 39.) On February 16, 2018, the Arizona Court of Appeals ordered “granting review, granting relief and remanding this matter to the trial court for resentencing in light of Montgomery.” (Doc. 48-2 at 41.)
On August 3, 2021, the State moved to withdraw from the stipulation based on the argument that “the basis upon which the stipulation was made - in light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016) - no longer exists after Jones v. Mississippi, 141 S.Ct. 1307 (2021).” (Doc. 48-2 at 44.)
On November 2, 2021, the trial court granted the State's motion, vacated the resentencing, and dismissed the matter entirely. (Doc. 48-2 at 78-79.) The Court determined that “the state of the law changed between the time the mandate issued and now[,]” and to “find otherwise would be to engage in a resentencing that is not constitutionally required[.]” (Id.)On December 7, 2021, the Arizona Court of Appeals dismissed an appeal of the decision for lack ofjurisdiction. (Doc. 48-2 at 83.) On December 22, 2021, Petitioner filed a Petition for Review in the Arizona Supreme Court. (Doc. 48-2 at 88.) On April 3, 2023, the Arizona Supreme Court found the Arizona Court of Appeals had jurisdiction to review the appeal and remanded the matter for a ruling. See State v. Purcell, 526 P.3d 146 (Ariz. 2023).
As a result of this ruling, the Ninth Circuit Court of Appeals reinstated Petitioner's “second or successive” application it previously found was moot. (Doc. 39-23 at 1-3.)
The matter - whether the stipulation to resentence should be enforced - is pending in the Arizona Court of Appeals. Either party could seek review of an unfavorable ruling in the Arizona Supreme Court. If Petitioner prevailed, this habeas proceeding would be moot. But Respondent could prevail, and the matter could take an indeterminate amount of time to resolve. As such, this Court elects to proceed here because the resolution of this habeas petition is straightforward.
D. Petitioner's Second Habeas.
On May 6, 2015, Petitioner filed an Application for Leave to File a Second or Successive 28 U.S.C. § 2254 Petition in the Ninth Circuit Court of Appeals. (Doc. 39-1 at 10.) On May 7, 2015, Petitioner filed a pro se Petition alleging a Miller claim. (Id. at 1522.) On June 15, 2015, the Ninth Circuit stayed the matter pending the outcome of Montgomery v. Louisiana,136 S.Ct. 718 (2016). (Doc. 39-2 at 1.)
On May 19, 2022, the Ninth Circuit Court of Appeals granted Petitioner's request to file a second or successive 28 U.S.C. § 2254 habeas corpus petition. (Doc. 39 at 1.) The Court ordered the matter be “deemed filed in the district court on May 6, 2016, the date on which applicant's original application to file a second or successive § 2254 petition was delivered to prison authorities for forwarding to this court.” (Id.)
III. PETITIONER'S HABEAS PETITION.
Petitioner “alleges one ground for relief in his Petition pursuant to Miller v. Alabama, 567 U.S. 460, 479-80 (2012), alleging his natural life sentence for a murder committed when he was 17 violates his Eighth Amendment rights.” (Doc. 43 at 3.) Petitioner's claim is found in Ground One of the Petition. (Doc. 40 at 19.) The parties agree this is the sole question before the Court. (Doc. 58 at 3-4; doc. 59 at 2.)
On March 8, 2022, Petitioner's counsel also filed an 18-page § 2254 Petition arguing this claim. (Doc. 40 at 56.)
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244.
A. Standard of Review.
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court proceedings unless the state court reached a decision which was contrary to clearly established federal law, or the state court decision was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v. Ayala, 135 S.Ct. 2187, 2198-99 (2015); Musladin v. Lamarque, 555 F.3d 834, 838 (9th Cir. 2009). The AEDPA requires that the habeas court review the “last reasoned decision” from the state court, “which means that when the final state court decision contains no reasoning, we may look to the last decision from the state court that provides a reasoned explanation of the issue.” Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014) (quoting Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000)).
Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court s decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. Rather, as a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal citations and quotations omitted). See also Arrendondo v. Neven, 763 F.3d 1122, 1133-34 (9th Cir. 2014).
Recognizing the duty and ability of our state-court colleagues to adjudicate claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court's ruling on
the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fair minded disagreement.” Harrington v. Richter, [] 131 S.Ct. 770, 786-787, [] (2011). “If this standard is difficult to meet”-and it is-”that is because it was meant to be.” [] 131 S.Ct., at 786. We will not lightly conclude that a State's criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id., at ___, 131 S.Ct., at 786 (internal quotation marks omitted).Burt v. Titlow, 134 S.Ct. 10, 15-16 (2013).
A state court decision is contrary to federal law if it applied a rule contradicting the governing law as stated in United States Supreme Court opinions, or if it confronts a set of facts that is materially indistinguishable from a decision of the Supreme Court but reaches a different result. Brown v. Payton, 544 U.S. 133, 141 (2005).
A state court decision involves an unreasonable application of clearly established federal law if it correctly identifies a governing rule but applies it to a new set of facts in a way that is objectively unreasonable, or if it extends, or fails to extend, a clearly established legal principle to a new set of facts in a way that is objectively unreasonable. See McNeal v. Adams, 623 F.3d 1283, 1287-88 (9th Cir. 2010). The state court's determination of a habeas claim may be set aside under the unreasonable application prong if, under clearly established federal law, the state court was “unreasonable in refusing to extend [a] governing legal principle to a context in which the principle should have controlled.” Ramdass v. Angelone, 530 U.S. 156, 166 (2000). But the state court's decision is an unreasonable application of clearly established federal law only if it can be considered objectively unreasonable. See, e.g., Renico v. Lett, 130 S.Ct. 1855, 1862 (2010). An unreasonable application of law is different from an incorrect one. See id.; Cooks v. Newland, 395 F.3d 1077, 1080 (9th Cir. 2005). “That test is an objective one and does not permit a court to grant relief simply because the state court might have incorrectly applied federal law to the facts of a certain case.” Adamson v. Cathel, 633 F.3d 248, 255-56 (3d Cir. 2011);see also Howard v. Clark, 608 F.3d 563, 567-68 (9th Cir. 2010).
Additionally, the United States Supreme Court has held that, with regard to claims adjudicated on the merits in the state courts, “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011);see also Murray, 745 F.3d at 998. Pursuant to § 2254(d)(2), the “unreasonable determination” clause, “a state-court's factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Clark v. Arnold, 769 F.3d 711, 724-25 (9th Cir. 2014) (quoting Burt, 134 S.Ct. at 15).
B. Miller v. Alabama .
On June 25, 2012, the United States Supreme Court decided Miller, which held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” 132 S.Ct. 2469. Miller requires that the judge's exercise of discretion be guided by an “individualized consideration” of the offender's “age and age-related characteristics and the nature of [his] crime . . . .” Id. at 2469-70 (emphasis added). Relevant issues for the judge's consideration could include: the offender's “chronological age and its hallmark features - among them, immaturity, impetuosity, and failure to appreciate risks and consequences”; “the family and home environment that surrounds him”; “the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him”; the “incompetencies associated with youth,” such as “his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys”; and “the possibility of rehabilitation.” Id. at 2468.
The Supreme Court expressed the expectation that, “given all we have said in Roper, Graham,and this decision about children's diminished culpability and heightened capacity for change, we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 2469.
Roper v. Simmons, 543 U.S. 551 (2005) (invaliding the death penalty for juveniles); Graham v. Florida, 560 U.S. 48 (2010) (prohibiting natural life sentence for juvenile, non-homicide offenders).
That is especially so because of the great difficulty we noted in Roper and Graham of distinguishing at this early age between “the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption . . . .” Although we do not foreclose a sentencer's ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.Id. (citation omitted).
In sum, Miller requires a court do more than consider a defendant's age. A judge must consider a defendant's “age and age-related characteristics.” A judge is not required to make specific findings regarding “irreparable corruption” or “transient immaturity.” But a judge must also consider “how [children's] differences counsel against irrevocably sentencing them to a lifetime in prison.” Relevant factors for a court to consider include a defendant's immaturity, ability to appreciate risks and consequences, role in the offense, family environment, or prospect of rehabilitation.
In Jones v. Mississippi, 141 S.Ct. 1307, 1318 (2021), the Court clarified that a “separate factual finding of permanent incorrigibility is not required” for a natural life sentence under Miller. See also Rue v. Roberts, 2022 WL 3572946, at *1 (9th Cir. 2022) (unpublished) (“Jones clarified that the Eighth Amendment categorically forbade mandatory sentencing schemes and required ‘only that a sentencer follow a certain process-considering an offender's youth and attendant characteristics-before imposing'” a natural life sentence.) (quoting Jones, 141 S.Ct. at 1311).
C. Discussion.
The Arizona Court of Appeals' determination-that Petitioner's sentencing hearing complied with Miller-is not contrary to clearly established federal law. The court found the trial judge considered Petitioner's ‘‘youthful age,'' dysfunctional childhood, and ‘‘emotional and moral immaturity.'' (Doc 39-1 at 43.) This decision was not so “lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.” White, 134 S.Ct. at 1702.
1. Petitioner's Sentencing Hearing.
On August 28, 1997, Petitioner's counsel called four witnesses to testify at a presentence hearing. (Doc. 39-26 at 23.) Rosemarie Lichtenfels, a youth and family counselor with the Gilbert Police Department, testified that she was a “certified master social worker by the Board of Behavioral Health for the State of Arizona.” (Id. at 29.) She described how Petitioner had been abused “emotionally, physically, and sexually” before the age of 15. (Id. at 31.) Dr. Sheryl Harrison, a psychologist, testified there was evidence of “considerable trauma” regarding “sexual abuse” in Petitioner's past. (Id. at 46.) She stated that Petitioner's mother provided a “violent” household (id. at 47-48) and Petitioner presented as a “highly dissociative” individual, which was consistent with “a person who had been highly traumatized.” (Id. at 53.) Donald Hazelton, a community developer at a homeless shelter at Williams Air Force Base, directed a community action program. He testified that he knew Petitioner as a young kid who was frequently very hungry, a willing worker, and someone “at the top of the list of somebody in need” based on his mother's neglect and family circumstances. (Id. at 74-78.) Lila Hanson, a neighbor who knew Petitioner since age eight, testified that she called Child Protective Services repeatedly to try to get help for Petitioner. (Id. at 85.) On cross-examination, she testified that codefendant Aaron Hoskins physically and emotionally “dominated” Petitioner. (Id. at 90.)
After the witness testimony, each party argued aggravating and mitigating facts to the court. (Id. at 93-106.) The prosecution argued that Petitioner was “death-eligible” under the law. (Id. at 104.)
2. Trial Court Ruling.
On September 5, 1997, the court sentenced Petitioner to a natural life term of imprisonment. The court stated the following:
All right. Mr. Deshaw, will you please stand? Rather than read the entirety of the Special Verdict, what I will do is just summarize some of my findings.
I have found that the State has proven beyond a reasonable doubt that the presence of the aggravating circumstance that the defendant committed this offense in the expectation of the receipt of pecuniary gain, and the State was unable to prove any of the other aggravating circumstances. The Court also has found as mitigating circumstances that the defense did prove the statutory mitigating circumstance that the defendant's age of 17 years is a mitigating circumstance. Also, the defense has proven non-statutory mitigating circumstances, number one, that the defendant comes from a dysfunctional family and had a difficult childhood which has included extreme neglect, physical and sexual abuse, and drug abuse which was
facilitated by family members. Also, the defense has demonstrated that the defendant demonstrated good behavior while incarcerated since his arrest three years ago and has accommodated himself to institutional life. Quite frankly, folks, the weighing and balancing of these circumstances is a difficult task for the Court. In essence, to boil it all down for you, I have decided that there is a distinctive difference between the conduct of Aaron Hoskins and Scott Deshaw. I have given great weight to the defendant's youthful age, his emotional and moral immaturity. I have given significant weight to the defendant's difficult childhood and dysfunctional family experiences, and given some weight to the influence of the co-defendant Aaron Hoskins upon this defendant, Scott Deshaw. I have considered and weighed all of the mitigating circumstances offered by the defendant, those that were proven to exist by a preponderance of the evidence and having shown the benefits of the doubt to the defendant as required by law on all issues as required.
The Court finds that the mitigating circumstances in this case are sufficiently substantial to outweigh the aggravating circumstances proved by the State and to call for leniency.(Doc. 39-26 at 115-16.)
The court's Special Verdict discussed statutory aggravating and mitigating factors. (Doc. 39-13 at 82-92.) The Special Verdict also discussed non-statutory mitigating factors, which included “extreme neglect; physical and sexual abuse; and, drug abuse, which was facilitated by family members.” (Id. at 88-89.)
3. Arizona Court of Appeals Ruling.
The Arizona Court of Appeals found that Petitioner received a sentencing hearing where his age and age-related characteristics were considered. The court denied relief of Petitioner's claim finding:
We assume arguendo that Miller is retroactive. Even so, we deny relief. Miller prohibits mandatory life sentences without the possibility of parole for juvenile offenders. Id. at 2460. Deshaw's sentence to natural life was not mandatory. The trial court had the option to sentence to natural life or life with a possibility of parole after twenty-five years' imprisonment. Ariz. Rev. Stat. (‘‘A.R.S.”) §13-703(A) (1994). Further, in its determination of the appropriate sentence, the trial court gave ‘‘great weight' to Deshaw's ‘‘youthful age'' and ‘‘his emotional and moral immaturity.' The court also gave ‘‘significant weight'' to Deshaw's difficult childhood and ‘‘dysfunctional family experiences.'' Even so the court believed Deshaw should spend the rest of his life in prison. Therefore, the court took into account ‘‘how children are different'' and Deshaw's sentence to natural life complied with Miller.(Doc. 39-1 at 43.)
Here, the Arizona Court of Appeals could reasonably conclude that Petitioner's sentencing complied with the requirements of Miller. The court held a pre-sentencing hearing and considered the testimony of four individuals who testified on behalf of Petitioner. The court heard argument from the parties regarding the aggravating and mitigating facts of the case. During sentencing, the court gave “great weight to the defendant's youthful age, his emotional and moral immaturity.” (Doc. 39-1 at 43.) In the Special Verdict, the court “found the defendant's age to be a mitigating circumstance.” (Doc. 39-13 at 89.) The court considered Petitioner's “level of intelligence, maturity, involvement in the crime, and past experience to determine what weight to be given to the defendant's age.” (Id. at 89.) The court concluded Petitioner was “emotionally immature, due to the effects of his dysfunctional family and his dismal childhood.” (Id.) The court also concluded Petitioner “planned the murder several weeks in advance, and deliberately followed through with the plan.” The Court noted Petitioner did not kill the victim “at the time of the car-jacking but instead waited for approximately 30 minutes to get her to a remote area in the desert,” which showed “an ability to delay gratification that refutes any claim of impulsiveness.” (Id. at 90.)
On this record, the Arizona Court of Appeals could reasonably conclude Petitioner's sentencing complied with Miller. “The key assumption of both Miller and Montgomery was that discretionary sentencing allows the sentencer to consider the defendant's youth, and thereby helps ensure that life-without-parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant's age.” Jones, 141 S.Ct. at 1318; see also Jessup v. Shin, 31 F.4th 1262, 1266 (9th Cir. 2022) (“Miller requires, for a juvenile offender, an individualized sentencing hearing during which the sentencing judge assesses whether the juvenile defendant warrants a sentence of life with the possibility of parole.”); Bell v. Uribe, 748 F.3d 857, 870 (9th Cir. 2014) (when a judge considers “both mitigating and aggravating factors under a sentencing scheme that affords discretion and leniency, there is no violation of Miller”); Rojas v. Ryan, 2022 WL 1184162, at *1 (9th Cir. 2022) (affirming a denial of habeas relief where the “sentencing judge considered many factors, including Petitioner's age and ‘miserable childhood,' and concluded that Petitioner warranted a sentence without any form of release.”). The Arizona Court of Appeals decision was not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement. Petitioner is not entitled to relief on his claim.
VI. EVIDENTIARY HEARING.
The record is sufficiently developed, and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011).
CONCLUSION
Based on the above analysis, IT IS RECOMMENDED that Petitioner's second Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 40 at 19) be DENIED.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be DENIED because reasonable jurists could not find the ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed.R.Civ.P. 72.