Jessup v. Ryan

          ORDER

          Neil V. Wake Senior United States District Judge.

         Before the Court is the Magistrate Judge's Report and Recommendation on Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 46.)

         Arizona effectively abolished parole by repealing the authority of any agency to grant parole for crimes committed after January 1, 1994. 1993 Ariz. Sess. Laws, ch. 255, § 86; State v. Vera, 235 Ariz. 571, 575, 334 P.3d 754, 758 (Ct. App. 2014). Petitioner Michael Jessup (“Jessup”) pled guilty to first-degree murder and armed robbery committed when he was seventeen years old. When he was sentenced on July 21, 1999, the only lawful sentences in Arizona for first-degree murder, including for a juvenile tried as an adult, were death or life without parole. Jessup's plea agreement allowed a sentence of life without parole but not death. The agreement also purported to allow a sentence with possibility of parole after 25 years, but that provision was a nullity because no authority to grant parole existed. The plea agreement could not validly authorize an illegal sentence of life with possibility of parole. The only legal sentence available under both Arizona law and the plea agreement was life without parole. On July 21, 1999, Jessup was sentenced to life without parole, after the judge purported to exercise discretion he did not legally have.

         In 2012 the United States Supreme Court held mandatory sentences of life without parole for crimes of minors to be categorically unconstitutional. A sentence of life without parole could be imposed after consideration of relevant factors and exercise of discretion in the circumstances. But mandatory life without parole for juveniles is unconstitutional per se. Jessup then sought post-conviction relief in the state courts. After exhausting those proceedings, he timely filed a petition for habeas corpus in this Court.

         The Magistrate Judge recommended denial of Jessup's petition. The Court will reject that recommendation. The 1993 amendment to the sentencing statute for first-degree murder included three sentencing options: (1) death, (2) natural life (without possibility of parole), and (3) life with possibility of parole after 25 years. 1993 Ariz. Sess. Laws, ch. 153, § 1. But the third option was extinguished in 1994 when Arizona repealed the authority of any agency to grant parole for crimes committed after January 1, 1994. The plea agreement in 1999 included an illusory choice of parole that the law did not allow to be implemented. The term of the plea agreement purporting to allow parole, which there was no authority to implement, could not vest the judge with authority to impose that illegal sentence.

         Although the Arizona Legislature has since reinstated parole for juvenile offenders previously illegally sentenced with the possibility of parole, it has not done so for those like Jessup who were sentenced to life without possibility of parole with no legal alternative available to the judge. Consequently, Jessup is serving an unconstitutional mandatory life-without-parole sentence, directly contrary to categorical Supreme Court precedent.

         I. BACKGROUND THROUGH CONVICTION AND SENTENCING

         A. Jessup's Crimes and Plea Agreement

         Jessup does not contest the following facts, which are drawn from the presentence report and were relied upon by the state courts.

         On February 18, 1998, 79-year-old Frank Watkins was kidnapped at gunpoint. (Doc. 19-1, Ex. I at 94.) He had gone out to the yard of his Mesa, Arizona, home to pick grapefruit. (Id.) A heavily intoxicated Jessup and his companion forced Watkins into his own pickup truck. (Id. at 94-96.) They stopped to collect another companion, who drove the truck to a remote area several miles from Watkins's home. (Id. at 94.) On the way, Jessup took Watkins's personal property. (Id.) When the group arrived at the remote location, Jessup made Watkins walk to a drainage ditch. (Id.) He then shot him “repeatedly with two pistols at close range, with several bullets entering the head and face of Mr. Watkins.” (Id.)

         Watkins was reported missing that night. (Id.) Several hours after the report, the police found his pickup truck in a city park in Tempe, Arizona. (Id.) It had been set on fire. (Id.) A previously attached camper shell was missing. (Id.)

         Another vehicle, an Oldsmobile, had been stolen near the park. (Id.) Jessup and his two companions were arrested on February 23, 1998, after fleeing from the stolen Oldsmobile. (Id.) Workers then found Watkins's body near the drainage ditch. (Id. at 95.)

         A grand jury indicted Jessup on five counts: (1) first-degree murder, (2) armed robbery, (3) kidnapping, (4) arson of a structure, and (5) theft. (Doc. 19-1, Ex. A.) On February 19, 1999, Jessup entered into a plea agreement to plead guilty to counts 1 and 2. (Doc. 19-1, Ex. I at 101.) The State agreed to dismiss the other counts and not seek the death penalty. (Id.) The murder count required a life sentence either “with no possibility of parole (natural life sentence), or . . . with parole eligibility after 25 calendar years of incarceration.” (Id.) The second option, however, was illegal. For the armed robbery, the “presumptive sentence” was 10.5 years, the minimum 7, and the maximum 21 under Arizona statute. (Id.)

         B. The Sentencing Hearing

         1. Testimony of Psychologist Dr. Daniel Cady

         At Jessup's sentencing hearing on July 21, 1999, psychologist Dr. Daniel Cady, who had evaluated Jessup and prepared a report, testified on his behalf. (Doc. 19-3, Ex. EE at 6, 8.) Cady believed Jessup had been misdiagnosed as bipolar; instead, he had attention deficit hyperactivity disorder, which inhibited his ability to form social relationships with his peers as an adolescent. (See Id. at 14-18.) When Jessup was 17, with untreated ADHD he likely had an emotional age of 12 to 13. (See Id. at 14.) Cady did not see Jessup as having “a primary, aggressive, sociopathic personality, ” and thus he did not think it likely Jessup would reoffend. (Id. at 21-22.) Cady did see “a relatively typical juvenile offender who, under conditions of prolonged and extensive substance use, affected some tremendously poor judgment.” (Id. at 22.) He also believed that Jessup had the ability to appreciate the wrongfulness of his actions, an ability that would “increase as time goes on.” (Id.)

         On cross-examination, Cady acknowledged that Jessup had threatened his sister with a knife and chopped her hair off, that he had a lengthy history of counseling, and that he was “well oriented” when not under the influence of drugs and alcohol. (Id. at 25-26.) He also confirmed details from his written report that Jessup appeared to “get off” on discussing illegal or dangerous situations and encouraging others to put themselves in such situations and that he was “[c]ool and indifferent to the rights of others.” (Id. at 27-28.) Finally, he agreed that it is “extremely difficult” to predict future violent behavior. (Id. at 30.)

         Cady summarized his conclusions on redirect: “I have seen children with far worse psychological profiles and emotional, mental kinds of difficulties like ADHD, who have made remarkable changes, who have come back to the juvenile court in their early 20s, employed, children, married, having successful lifestyles where we would have thought they were extremely disturbed children during adolescence.” (Id. at 33.)

         2. Sentencing Judge's Findings and Sentence

         Sixteen years later, the Arizona Court of Appeals found the sentencing judge had in fact complied with the requirements an intervening Supreme Court case for a juvenile life sentence without parole. The judge's analysis and stated reasons for the sentence are given below.

         Jessup's attorney argued mitigating factors. He stressed Jessup's age of 17 at the time of the crime and his emotional age of 12 to 13. (Id. at 39.) He noted that Jessup had begun attending Bible study and stated he accepted responsibility. (Id. at 39-40.) His counsel said, “I think that Doctor Cady, through his report and his testimony, has indicated safely that this is not a person who is likely to be involved in this type of situation again.” (Id. at 40.) The State responded that the psychological testimony actually ought to have alarmed the court, as it demonstrated Jessup “has a conduct disorder, a personality disorder. He regularly and repeatedly violates the right of others. He is aggressive. He gets off on doing illegal things.” (Id. at 41.) Despite counseling, probation, treatment by doctors, and placement in a reform school, Jessup still went out “and did what he did to Frank Watkins.” (Id. at 42.)

         The judge then sentenced Jessup. Though he believed he did not need to go through all of the mitigating and aggravating factors, to his credit he stated his reasons for the sentence. (Id. at 46.) The judge, an experienced criminal judge, had a record consisting of the matters later Supreme Court cases said should be given appropriate weight before concluding that a defendant is “the rare juvenile offender whose crime reflects irreparable corruption.” Miller v. Alabama, 567 U.S. 460, 479-80 (2012). Miller “did not impose a formal factfinding requirement, ” and the sentencing court need not “make a finding of fact regarding a child's incorrigibility.” Montgomery v. Louisiana, 136 S.Ct. 718, 735 (2016). But the judge's extended comments did not show that disbelieved any of the facts for leniency/parole. He considered the heinousness of the crime trumps the prospect of rehabilitation, notwithstanding Jessup's chronological age of 17, his emotional age of 12 to 13, his attention deficit hyperactivity disorder, his chronic drug and alcohol addiction, his intoxication at the time of the murder, and his statement of remorse. That comes close, perhaps too close, to saying corrigibility counts for nothing if the crime is too heinous.

         The sentencing judge stated that he read and considered the presentence report and attachments, including letters from Watkins's family and Cady's report and testimony. (Id. at 37.) He considered the mitigating factor of Jessup's age and other factors but did not say that he gave them any weight or what weight. (Id. at 43.) He dismissed Jessup's intoxication when he committed the murder as a culpability factor: “I have also considered as a mitigating factor, although in a way I could also consider it as an aggravating factor, that you were on several drugs at the time of the murder.” (Id.) He conceded that Jessup had no history of violent crimes. (Id. at 46.)

         The sentencing judge noted that Jessup's dad and stepmom had “done virtually everything that a parent could possibly do” to get Jessup on the right path. (Id. at 43-44.) Other aggravating circumstances included the cruelty inflicted on Watkins by forcing him to contemplate his fate during the 30-minute drive, though the only threat appearing in the record was the implicit threat from brandishing firearms. (Id. at 44.) Also included were Watkins's age and concomitant helplessness, the gratuitousness of the multiple gunshots, the motive of pecuniary gain, the fact that Jessup was “clearly the most culpable” of the three perpetrators, Jessup's criminal history, and the harm inflicted on ...