Jara v. Ryan

          ORDER

          DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE

         On April 12, 2017, Petitioner Jesus Emmanuel Jara filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On July 17, 2018, Magistrate Judge Burns issued a Report and Recommendation (“R&R”) concluding the petition should be denied and dismissed with prejudice. (Doc. 15.) Jara timely filed objections to the R&R (Doc. 19), ^[1] to which Respondents have not filed a response, and Jara subsequently filed a request for judicial notice (Doc. 20).

         I. Background

         A. State Proceedings

         In November 2005, Jara was charged in Arizona state court with one count of armed robbery and two counts of felony murder. (Doc. 13-1 at 6.) The charges arose from an incident in November 2005 in which Jara-who was 15 years old at the time-and two friends robbed a sandwich shop. (Id. at 7.) Jara carried a loaded assault rifle into the shop, handed it to his friend, and stood guard by the door. When one of the shop’s employees recognized Jara’s friend, the friend used the rifle to fatally shoot the employees. (Id.) Jara and the friend left the shop with approximately $60 and the victims’ cell phones, got into the friend’s car (where a third friend was waiting), and drove away. (Id.)

         Following a jury trial, Jara was convicted on all counts and sentenced to “10.5 years’ imprisonment for the armed robbery conviction and to life imprisonment with the possibility of parole after twenty-five years for each of the first-degree murder convictions.” (Id.) However, at the time of Jara’s sentencing, parole was not available to anyone convicted after January 1, 1994. Arizona Revised Statutes (“A.R.S.”) § 41-1604.09 (1993).

         In January 2009, the Arizona Court of Appeals affirmed Jara’s conviction and sentence. (Doc. 13-1 at 8.)

         In February 2009, Jara filed his first notice of post-conviction relief (“PCR”). (Id. at 19-23.) In June 2009, his appointed counsel filed a notice that she was unable to identify any tenable issues. (Id. at 25.) Jara thereafter failed to file a pro se PCR petition. (Id. at 28.) As a result, on May 5, 2010, the trial court dismissed the proceedings. (Id.)

         On June 25, 2012, the U.S. Supreme Court decided Miller v. Alabama, 567 U.S. 460 (2012), holding that “mandatory life 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.’” Id. at 465.

         On June 25, 2013, Jara filed a successive PCR notice. (Doc. 13-1 at 30-31.) In it, he checked boxes indicating that “[t]here has been a significant change in the law that would probably overturn the conviction or sentence” and that “[f]acts exist which establish by clear and convincing evidence that the defendant is actually innocent.” (Id. at 31.) In the portion of the notice requiring him to state all of the facts underlying his claim and his reasons for not raising it earlier, Jara wrote: “The U.S. Supreme Court has ruled that mandatory life without parole sentences for juveniles are unconstitutional (Miller v. Alabama, 132 S.Ct. 2455 (2012)).” (Id.)

         On July 2, 2013, the trial court denied relief, stating (1) “Defendant did not receive the sentence that he claims is illegal under Miller”-that is, “life imprisonment without parole”-and (2) “Miller does not place a categorical ban on juvenile life without parole.” (Doc. 13-1 at 34.)

         On July 18, 2013, Jara filed a “Motion for Rehearing and/or Reconsideration for Pro Se Notice for Post-Conviction Relief and Request to Have Counsel Appointed.” (Id. at 36.) In this motion, Jara did not identify any specific reasons why the trial court’s decision was wrong or attempt to assert any new arguments not contained in his PCR notice-he simply asked that “counsel be appointed to articulate in a more profound way, a legal analysis and legal argument explaining how in fact [Miller] in its totality is a significant change in the law that applies to his case.” (Id.)

         On May 9, 2014, after consolidation with other cases, further briefing, and oral argument, the trial court issued an eight-page order amending its ruling. (Doc. 13-1 at 43-50.) The court began by disavowing the conclusions reached in its earlier order. (Id. at 44-49.) Among other things, the court noted that, given the statutory amendments made to Arizona’s sentencing laws in 1994 abolishing parole, ^[2] “from 1994 to the present date, the only mechanism for release under a life sentence in Arizona has been through clemency or commutation. There is a vast difference between clemency/commutation and parole and the distinction is central to the issue of whether there is a ‘meaningful opportunity’ for release as contemplated by Miller.” (Id. at 48.) For these reasons, the court concluded that Jara did not, in fact, have a meaningful opportunity for release as was “mandated under Miller in cases in which the possibility for release is ordered for a juvenile offender.” (Id. at 49.) The court also concluded that Miller applies retroactively and presents a significant change in the law. (Id. at 47-48.)

         Those two conclusions left the trial court with one final issue: whether Jara’s claim under Miller was “ripe for determination.” (Id. at 49.) But the court did not reach this issue because “an intervening event” had occurred 17 days earlier-on April 22, 2014, Arizona’s governor signed into law H.B. 2593, which, once it became effective a few months later on July 24, 2014, would “reinstate parole for juvenile offenders sentenced to life with the possibility of release, including those sentenced before the law becomes effective.” (Id.) The court held that H.B. 2593 “resolves the residual issues for those sentenced to life imprisonment on or after January 1, 1994 that could have called into question whether [Jara’s] sentence violated the letter and spirit of Miller.” (Id. at 50.) The court therefore denied relief under Rule 32 with the condition that the Arizona Department of Corrections set a specific date for Jara’s parole eligibility once H.B. 2593 (codified at A.R.S. § 13-716) became an effective law. (Id.)

         On June 7, 2016, the Arizona Court of Appeals affirmed the denial of Jara’s PCR petition. (Doc. 13-1 at 3-4.) In his petition for review, as summarized by the Court of Appeals, ^[3] Jara contended “the trial court erred by denying him the opportunity to raise issues regarding the application of H.B. 2593, ” including “[1] that H.B. 2593 was not intended to apply retroactively, [2] its retroactive application violates separation of powers and ex post facto principles, and [3] parole availability under the statutes does not satisfy Miller.” (Id. at 4.) The Court of Appeals held that the first two issues were foreclosed by State v. Vera, 334 P.3d 754 (Ariz.Ct.App. 2014), and the third issue was foreclosed by Montgomery v. Louisiana, 136 S.Ct. 718 (2016). (Id.)

         On January 10, 2017, the Arizona Supreme Court summarily denied Jara’s ...