United States District Court, D. Arizona
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 ...