United States District Court, D. Arizona
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1994 when Arizona repealed the authority of any agency to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 ...