United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
Richard Rojas has filed a pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1).
SUMMARY OF CONCLUSION.
Arizona Court of Appeals, prior to Montgomery v.
Louisiana, 136 S.Ct. 718, 737 (2016), found that
Petitioner's natural life sentences were imposed in
accordance with the mandates of Miller v. Alabama,
132 S.Ct. 2455, 2469 (2012). But the trial court did not
discuss Petitioner's age-related characteristics and
whether Petitioner's juvenile status counseled against a
natural life sentence, which are expressly required by
Miller. Because the Arizona Court of Appeals'
decision is objectively unreasonable and not harmless, the
Court recommends the matter be remanded to the state court
for a new sentencing hearing that comports with the
principles set forth in Miller.
Factual and Procedural History.
Arizona Court of Appeals found the following facts and
procedural history as true:
Rojas and two co-defendants, Fernando Castellanos and
Jonathon Arias, were indicted on two counts of first-degree
murder, each a class 1 felony; two counts of armed robbery,
each a class 2 felony and dangerous offense; and conspiracy
to commit armed robbery, a class 2 felony and dangerous
offense. The charges stemmed from the shooting
tdheaths of Michael Fromme and Amy
Hoppes at a carwash located near 59 Avenue and Missouri in
Glendale during the early morning hours of March 4, 1999.
Prior to trial, the trial court granted Rojas's motion
to sever and ordered that he be tried separately from his
co-defendants. Upon trial to jury, Rojas was found guilty
on both counts of first-degree murder. The jury
additionally found Rojas guilty on the charges of
conspiracy and armed robbery of Michael Fromme, but
acquitted him of the armed robbery charge relating to Amy
Hoppes. The trial court sentenced Rojas to two consecutive
terms of natural life imprisonment on the convictions for
first-degree murder and to two concurrent, aggravated
eighteen-year prison terms on the conspiracy and robbery
(Doc. 12-2, Ex. H, at 16.)
9, 2001, Petitioner appealed his convictions and sentences.
(Doc. 12-1, Ex. E, at 30.) On October 21, 2003, the Arizona
Court of Appeals affirmed Petitioner's convictions and
sentences. (Doc. 12-2, Ex. H, at 29.) On March 15, 2004, the
Arizona Supreme Court denied review. (Doc. 12-3, Ex. W, at
139.) On April 7, 2004, the mandate issued. (Doc. 12-2, Ex.
L, at 86.)
Petition for Post-Conviction Relief
25, 2013, Petitioner filed a petition for post-conviction
relief arguing that “mandatory life without parole
sentences for juvenile are unconstitutional (Miller v.
Alabama, 132 S.Ct. 2455 (2010)).” (Doc. 12-2, Ex.
K, at 84). On July 9, 2013, the trial court noted that this
proceeding was Petitioner's first Rule 32 proceeding, and
that it was untimely. (Doc. 12-2, Ex. L, at 86.) The court
addressed Petitioner's argument and dismissed his PCR
notice, ruling as follows:
Defendant is claiming, pursuant to Ariz. R. Crim. P. 32.1(g),
that there has been a significant change in the law that if
applied retroactively to the defendant's case, would
probably affect the outcome. Specifically, Defendant cites
Miller v. Alabama, 132 S.Ct. 2455 (2012).
The Defendant claims Miller constitutes a
significant change in the law that applies to his case. For
the purpose of this order only, the Court shall consider that
Miller could be a significant change in the law.
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 determined to be a mitigating factor. Even
after considering the 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.
PCR Motion for Reconsideration.
21, 2013, Petitioner filed a motion for reconsideration,
arguing that the imposition of a life sentence without the
possibility of parole violated the Eighth Amendment. (Doc.
12-3, Ex. N, at 2.) On July 24, 2013, the Arizona Justice
Project filed a “Brief of Amicus Curiae in
support of Petitioner's motion for reconsideration,
” requesting the court reconsider its dismissal of
Petitioner's PCR notice, appoint Petitioner counsel, and
allow Petitioner to file a full Petition for PCR “in
order to develop several issues of first impression and
statewide importance raised by his case.”
(Id., Doc. 12-2, Ex. M, at 89.) On July 29, 2013,
the trial court denied Petitioner's motion:
Under Rule 32, an exception to the preclusion rules exists
when “there has been a significant change in the law
that if determined to apply to the defendant's case would
probably overturn the defendant's conviction or
sentence.” Rule 32.1(g) (emphasis added).
Defendant's request for relief presupposes that
Miller applies retroactively, a determination that
has not yet been made by this Court or under Arizona law.
Even assuming it is determined that Miller has
retroactive application, there is an additional legal issue
that must be addressed. In this matter, Defendant was
sentenced to life without the possibility of release. The
Miller court did not foreclose the court's
authority to enter a sentence of this nature. Rather,
Miller mandated that mitigating factors such as age
must be considered by the Court before it may impose the
“harshest sentence” on juvenile offenders.
The 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 13 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. 12-3, Ex. O, at 8.)
Arizona Court of Appeals.
August 26, 2013, Petitioner filed a petition for review in
the Arizona Court of Appeals. (Doc. 12-3, Ex. P, at 10.) On
November 12, 2013, the Arizona Justice Project filed another
Amicus Curiae brief in the Arizona Court of Appeals.
(Doc. 12-3, Ex. R, at 49.) On February 12, 2015, the Arizona
Court of Appeals granted review, but denied relief:
Rojas contends the Supreme Court opinion in Miller v.
Alabama, 132 S.Ct. 2455 (2012), constitutes a
significant change in the law that required the trial court
to vacate his sentences of natural life. See Ariz.
R. Crim. P. 32.1(g) (significant change in the law as a
ground for post-conviction relief); 32.2(b) (rule of
preclusion does not apply to claims for relief based on Rule
32.1(g)). In Miller, the Supreme Court held
“that mandatory life [sentences] without parole for
those under the age of 18 at the time of their crimes
violates the Eighth Amendment's prohibition on
‘cruel and unusual punishments.'” 132 S.Ct.
at 2460. The court further held that a trial court may
sentence a juvenile offender convicted of murder to life
imprisonment without the possibility of parole so long as the
court takes into account “how children are different,
and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id.
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. Rojas's sentences to natural life were not
mandatory. The trial court knew it had the option to sentence
Rojas to natural life or life with a possibility of parole
after twenty-five years' imprisonment. See Ariz.
Rev. Stat. (“A.R.S.”) § 13-703(A) (1999).
Further, in its determination of which sentence to impose,
the trial court acknowledged Rojas's “miserable
childhood, ” and found that his age at the time he
committed the murders and his lack of prior felony
convictions were mitigating factors. Therefore, the court
took into account “how children are different”
and Rojas's sentences to natural life complied with
(Doc. 12-3, Ex. T, at 102.)
1, 2015, the Arizona Supreme Court denied review. (Doc. 12-3,
Ex. X, at 142.)
PETITIONER'S HABEAS PETITION.
22, 2015, Petitioner filed a pro se Petition for Writ of
Habeas Corpus. (Doc. 1.) Petitioner challenges his
natural-life sentences, raising the following three grounds
1. His life sentences constitute cruel and unusual punishment
under the Eighth Amendment, violate Article II of the Arizona