United States District Court, D. Arizona
A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
before this Court is the Report and Recommendation of the
Magistrate Judge (R&R). This Court “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1).
R&R recommends that this Court: 1) find Petitioner's
Miller claim exhausted before the state courts; and
2) find Petitioner did not waive his right to seek federal
habeas relief via his plea agreement. (Doc. 43). If the Court
adopts the R&R, the state will file a supplement to its
answer to address the merits of Petitioner's
Miller claim. (Id. at 1).
filed an objection to the R&R. (Doc. 44). Petitioner
filed a reply to Respondents' objection. (Doc. 45). The
Court will review the portions of the R&R to which there
is a specific objection de novo. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc) (It is “clear that the
district judge must review the magistrate judge's
findings and recommendations de novo if objection is
made, but not otherwise.”)
Factual and Procedural Background
R&R summarized the factual and procedural background of
this case. (Doc. 43 at 1-4). Neither party objected to the
accuracy of this summary. Accordingly, the Court accepts and
short summary, Petitioner is incarcerated for crime he
committed when he was sixteen years old. (Doc. 43 at 2).
Petitioner's sentence required him to serve 57.5 years in
prison, with the possibility of parole thereafter. (Doc. 43
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 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. This
holding has two components for juveniles: 1) that the
sentence be “mandatory” and 2) that the sentence
“life without the possibility of parole.”
Petitioner argues that his 57.5 year sentence is effectively
a life without parole sentence.
Respondents' Procedural Arguments
its decision in Miller, the Supreme Court held in
Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718
(2016), that claims under Miller applied
retroactively to cases on collateral review.
Montgomery, 136 S.Ct. at 736-37.
case, when Petitioner first filed his second post-conviction
relief petition in state court, Montgomery had not
yet been decided. It is undisputed that Petitioner's case
was not on direct appeal when Miller was decided
and, thus, Petitioner would need the benefit of retroactivity
to have his Miller claim heard by the courts.
point, everyone seems to be in agreement that
Montgomery did not create a new claim. However,
Respondents argue that a Montgomery claim must
nonetheless be exhausted in state court. (Doc. 44 at 5). As
all parties concede, Petitioner did present a Miller
claim to the state courts via his second post-conviction
relief petition. Further, the Arizona Courts presumed without
deciding that Miller would be applicable to cases on
collateral review; and therefore, the Arizona Courts
proceeded to the merits of Petitioner's Miller
claim even though Montgomery had not yet been
decided. (See Arizona Court of Appeal Opinion on
Petitioner's second post-conviction relieve petition:
Doc. 33-4 at 36 n.1). Thus, as the R&R concludes, the
Miller claim was exhausted in the state courts.
actual issue Respondents are arguing is that
Montgomery's “clarification” of
Miller so materially modified the holding of
Miller that any claim that was exhausted as a pure
Miller claim, without the Montgomery
clarification, was effectively not presented to the state
courts because the claim was presented under the wrong legal
test. Respondents' support for the argument that
Montgomery so materially changed Miller is
that when the Arizona state courts applied Miller as
written, they were summarily reversed for further
consideration in light of Montgomery. See Tatum
v. Arizona, U.S. 137 S.Ct. 11, 12-13 (2016).
Further, applying Tatum, the Arizona Supreme Court
in Valencia noted that the holding of
Miller was significantly clarified by
Montgomery. Specifically, the Arizona Supreme Court
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