Rainer v. Hansen ( 2020 )

FILED
United States Court of Appeals
Tenth Circuit
February 25, 2020
PUBLISH
Christopher M. Wolpert
UNITED STATES COURT OF APPEALS Clerk of Court
FOR THE TENTH CIRCUIT
____________________________________
ATORRUS RAINER,
Petitioner - Appellant,
v. No. 18-1427
MATTHEW HANSEN, Warden,
Sterling Correctional Facility; and
PHIL WEISER, Attorney General of
the State of Colorado,
Respondents - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:18-CV-00395-RPM)
_________________________________
Kathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado, for Petitioner-
Appellant.
Ryan A. Crane, Senior Assistant Attorney General (Phillip J. Weiser,
Attorney General, with him on the briefs), Office of the Attorney General
for the State of Colorado, Denver, Colorado, for Respondents-Appellees.
_________________________________
Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________
BACHARACH, Circuit Judge.
________________________________
The Constitution requires states to offer juveniles convicted of
nonhomicide crimes “some meaningful opportunity for release based on
demonstrated maturity and rehabilitation.” Graham v. Florida, 560 U.S.
48, 75 (2010). Invoking this constitutional obligation, Mr. Atorrus Rainer
sought habeas relief, claiming that the State of Colorado had deprived him
of this opportunity by imposing a 112-year sentence for crimes committed
when he was a juvenile. We conclude that the State has provided Mr.
Rainer with the required opportunity through the combination of the
Juveniles Convicted as Adults Program (JCAP) and the general parole
program.
Background
I. The Original Sentencing
After committing crimes when he was seventeen years old, Mr.
Rainer was convicted of two counts of attempted first-degree murder, two
counts of first-degree assault, one count of first-degree burglary, and one
count of aggravated robbery. For these crimes, the district court sentenced
Mr. Rainer to 224 years in prison.
On direct appeal, the convictions were affirmed. But the Colorado
Court of Appeals ordered modification of the sentences, concluding that
the prison terms for attempted first-degree murder and first-degree assault
should run concurrently, rather than consecutively, because the crimes
2
could have been based on identical evidence. The Colorado Court of
Appeals thus modified Mr. Rainer’s sentences to run for 112 years.
II. The Postconviction Proceedings
After the direct appeal, the Supreme Court held in Graham v. Florida
that the Eighth Amendment prohibits life imprisonment without the
possibility of parole for juveniles convicted of nonhomicide crimes. 560
U.S. 48, 75 (2010). Under Graham, these juveniles are entitled to a
meaningful opportunity for release based on demonstrated maturity and
rehabilitation. Id.Shortly after Graham was decided, Mr. Rainer filed a postconviction
motion in state district court, arguing that his 112-year sentence was
unconstitutional. The state district court held that (1) Graham was
inapplicable because it had addressed only sentences designated as life
without parole, not lengthy term-of-years sentences, and (2) Graham did
not apply retroactively.
The Colorado Court of Appeals reversed both holdings, concluding
that Graham encompassed lengthy term-of-years sentences and applied
retroactively. People v. Rainer, 412 P.3d 520, 531 (Colo. App. 2013).
Applying these conclusions, the Colorado Court of Appeals held that Mr.
Rainer lacked a meaningful opportunity for release based on demonstrated
maturity and rehabilitation. Id. at 534–36. The Colorado Court of Appeals
found that
3
 Mr. Rainer’s life expectancy was between 63.8 and 72 years
according to tables published by the Centers for Disease
Control and
 Mr. Rainer would become eligible for parole when he was 75
years old.
Id. at 533–36. Because Mr. Rainer’s life expectancy preceded his
eligibility for parole, the Colorado Court of Appeals held that Mr. Rainer
lacked a meaningful opportunity for release.
The Colorado Supreme Court reversed, holding that Graham applied
only to juveniles sentenced to life without parole for a single crime. People
v. Rainer, 394 P.3d 1141, 1144 (Colo. 2017). Because Mr. Rainer had a
lengthy term-of-years sentence for six different offenses, the court
reasoned, Graham did not apply. Id.III. The Federal Habeas Proceedings
Mr. Rainer then brought a federal habeas action. In district court, the
respondents conceded that the Colorado Supreme Court’s decision was
contrary to Graham because Graham covered lengthy prison terms as well
as sentences designated as life imprisonment without parole. But the
respondents argued that (1) Graham did not apply because Mr. Rainer had
been convicted of homicide offenses and (2) Mr. Rainer had a meaningful
opportunity for release through JCAP and Colorado’s general parole
program. The district court held that
 Graham did not apply to Mr. Rainer because he was convicted
of homicide offenses and
4
 even if Graham did apply, JCAP provided Mr. Rainer with a
meaningful opportunity for release.
Mr. Rainer appealed, and we affirm. Although Graham applies, the State
has provided Mr. Rainer with a meaningful opportunity for release through
the combination of JCAP and the general parole program.
Standard for Habeas Relief
We engage in de novo review of the district court’s legal
conclusions. Byrd v. Workman, 645 F.3d 1159, 1165 (10th Cir. 2011). In
district court, consideration of habeas challenges is deferential to the state
courts when they reject a claim on the merits. In this circumstance, 28
U.S.C. § 2254(d) prohibits habeas relief unless the state court’s decision
was
 contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States; or
 based on an unreasonable determination of the facts in light of
the evidence presented in state court.
28 U.S.C. § 2254(d).
The Colorado Supreme Court rejected Mr. Rainer’s claim on the
merits. People v. Rainer, 394 P.3d 1141, 1144 (Colo. 2017). Mr. Rainer
was thus subject to the restriction in § 2254(d).
To determine whether the state court’s decision was contrary to or
involved an unreasonable application of clearly established law, we engage
5
in a two-step process. We first identify the clearly established law based
on Supreme Court precedent. Williams v. Taylor, 529 U.S. 362, 379 (2000).
We then determine whether the state court’s decision was contrary to or
involved an unreasonable application of the Supreme Court precedent. Id.As the respondents concede, the Colorado Supreme Court’s decision
was contrary to Graham. In Budder v. Addison, a state court declined to
apply Graham to a juvenile offender sentenced to 131 years in prison,
reasoning that Graham did not apply to lengthy term-of-years sentences.
851 F.3d 1047, 1059 (10th Cir. 2017). We held that this decision was
contrary to Graham, reasoning that the Supreme Court had not drawn “any
distinctions with regard to the . . . severity of nonhomicide crimes a
defendant had committed or indicate that anything short of homicide would
rise to the level of moral culpability that could justify a sentence of life
without parole for a juvenile offender.” Id. at 157–58.
Just like the state court in Budder, the Colorado Supreme Court
declined to apply Graham here in light of the long term-of-years sentence
for multiple crimes. People v. Rainer, 394 P.3d 1141, 1144 (Colo. 2017).
The Colorado Supreme Court’s decision is thus contrary to Graham, and
§ 2254(d) does not bar relief.
The Constitutionality of the Sentence
Though § 2254(d) does not prevent habeas relief, we conclude that
Mr. Rainer’s sentence complies with Graham.
6
I. Graham applies because attempted murder is not a homicide
offense.
The respondents argue that Graham does not apply to Mr. Rainer
because
 Graham’s holding is limited to juvenile offenders who were
convicted of non-homicide offenses and
 Mr. Rainer’s offenses, attempted first-degree murder, were
homicide offenses.
The district court agreed, holding that Graham did not apply. We conclude
that Graham does apply here because attempted first-degree murder is not
a homicide offense.
Graham’s holding is limited to offenders convicted of non-homicide
offenses. Graham v. Florida, 560 U.S. 48, 74 (2010); see also Miller v.
Alabama, 567 U.S. 460, 473 (2012) (“To be sure, Graham’s flat ban on life
without parole applied only to nonhomicide crimes . . . .”). The term
“homicide” is widely understood as the killing of another person. See
Black’s Law Dictionary 881 (Garner editor-in-chief, 11th ed. 2019) (giving
the primary definition of “homicide” as “[t]he killing of one person by
another”); I Bouvier Law Dictionary 1219 (2012) (defining “homicide” as
“[c]ausing the end of the life of another human being”); Bryan A. Garner,
Dictionary of Legal Usage 413 (3d ed. 2009) (stating that “homicide refers
. . . to the lawful or unlawful killing of a person”). The Colorado Supreme
Court adheres to this broad understanding of “homicide,” defining it as
7
“the killing of a human being by another.” Leopold v. People, 95 P.2d 811,
813 (Colo. 1939).
Despite this widely recognized definition of “homicide,” the district
court and the respondents focus on a single sentence in Graham: “The
Court has recognized that defendants who do not kill, intend to kill, or
foresee that life will be taken are categorically less deserving of the most
serious forms of punishment than are murderers.” 560 U.S. 48, 69 (2010).
But right after this sentence, the Court focuses on the gravity of crimes
leading to a victim’s death:
There is a line “between homicide and other serious violent
offenses against the individual.” . . . . Serious nonhomicide
crimes “may be devastating in their harm . . . but ‘in terms of
moral depravity and of the injury to the person and to the public,’
. . . they cannot be compared to murder in their ‘severity and
irrevocability.’” This is because “[l]ife is over for the victim of
the murderer,” but for the victim of even a very serious
nonhomicide crime, “life . . . is not over and normally is not
beyond repair.” Although an offense like robbery or rape is “a
serious crime deserving serious punishment,” those crimes differ
from homicide crimes in a moral sense.
Id. (citations omitted) 1 (emphasis added). The Court thus relied on the
broad understanding of “homicide,” distinguishing between crimes based
on whether they cause a death. Id. Given this context, we conclude that the
1
The citations for this passage also suggest that the distinction
between homicides and other crimes is based on whether the victim dies.
For example, the Graham Court cited Kennedy v. Louisiana, which
explains that “harm to the victim, though grave, cannot be quantified in the
same way as death of the victim.” 554 U.S. 407, 439 (2008).
8
Graham Court was using the term “homicide” to refer to crimes causing the
victim’s death.
With this conclusion, we consider Colorado’s version of attempted
first-degree murder. This version of the crime does not require the victim’s
death, see People v. Beatty, 80 P.3d 847, 852 (Colo. App. 2003) (upholding
a conviction for attempted first-degree murder when the victims did not
die), so it does not constitute a homicide offense under Graham. See, e.g.,
Bramlett v. Hobbs, 463 S.W.3d 283, 288 (Ark. 2015) (holding that
attempted capital murder is a non-homicide crime under Graham); Gridine
v. State, 175 So. 3d 672, 674 (Fla. 2015) (same); State v. Tram, 378 P.3d
1014, 1021 (Haw. Ct. App. 2016) (same); State v. Hampton, 2016 WL
6915581, at *7 (Tenn. Crim. App. Nov. 23, 2016) (unpublished) (same). 2
The respondents disagree, pointing to Graham’s (1) reliance on a
study that characterized attempted murder as a homicide offense and
(2) observation that Israel does not impose life without parole for non-
homicide offenses, limiting this sentence to juveniles convicted of
homicide or attempted homicide. 560 U.S. 48, 62–64, 80–81 (2010). But
reliance on a study does not mean that the Court embraced all of the
2
The only court to disagree did so in an unpublished opinion without
analysis. Twyman v. State, 26 A.3d 215 (Del. 2011) (unpublished); see also
People v. Gipson, 34 N.E.3d 560, 576 (Ill. App. Ct. 2015) (“seriously
question[ing] whether attempted murder constitutes a nonhomicide
offense” but declining to decide the issue).
9
study’s definitions. And the Court’s observation about Israel’s practice
does not override the Court’s ultimate holding, which is framed solely in
terms of convictions for homicide. Id. at 80–81.
* * *
We conclude that under Colorado law, attempted first-degree murder
is not a homicide offense. Graham thus applies to Mr. Rainer, and the State
must provide him with a meaningful opportunity for release based on
demonstrated maturity and rehabilitation. Graham v. Florida, 560 U.S. 48,
75 (2010).
II. The combination of JCAP and the general parole program gives
Mr. Rainer a meaningful opportunity for release based on
demonstrated maturity and rehabilitation.
Mr. Rainer argues that he lacks a meaningful opportunity for release
based on demonstrated maturity and rehabilitation. In our view, however,
this opportunity exists through the combination of JCAP and the State’s
general parole program.
A. Mr. Rainer’s Opportunities for Release Between the Ages of
42 and 60
We first examine Mr. Rainer’s opportunities for release between the
ages of 42 and 60. 3 When Mr. Rainer is 42, he will become eligible for
release through JCAP, the state’s specialized parole program for juvenile
3
All references to Mr. Rainer’s age are approximations because his
birth date does not appear in the record.
10
offenders. This program is generally restricted to juvenile offenders who
have been convicted as adults and have served twenty years of their prison
term. Colo. Rev. Stat. § 17-34-101(1)(a)(I). 4 Those offenders can apply to
JCAP if they have participated in programs offered by the Colorado
Department of Corrections, shown responsibility and commitment in these
programs, accepted responsibility for the criminal behavior underlying
their offenses, and demonstrated growth and change through developmental
maturity and quantifiable good behavior during the course of their
incarceration. Colo. Rev. Stat. § 17-34-101(1)(a)(I).
Mr. Rainer will be eligible to apply for JCAP at age 39. If he is
accepted and completes the program in the anticipated three-year period,
Colo. Rev. Stat. § 17-34-102(3), he could obtain release by the age of 42.
If his application is denied, he could re-apply every three years. Colo. Rev.
Stat. § 17-34-101(5). From ages 42 to 60, Mr. Rainer could obtain seven
opportunities for release through JCAP.
Mr. Rainer argues that JCAP does not provide a meaningful
opportunity for release because the governor must ultimately grant the
offender’s parole application upon completion of the program. According
4
Though juvenile offenders normally must serve only twenty years of
their sentence, juvenile offenders convicted of certain types of first-degree
murder must first serve twenty-five years of their sentence. Colo. Rev.
Stat. § 17-34-101(1)(a)(III).
11
to Mr. Rainer, this program resembles executive clemency, which Graham
regarded as inadequate. 560 U.S. 48, 70, 82 (2010).
Executive clemency is inadequate because it affords the governor
complete discretion to approve or deny an offender’s application. See, e.g.,
Executive Order B-002-99 § 3(A) (Feb. 16, 1999) (Colorado’s executive
clemency program). Unlike executive clemency, JCAP constrains this
discretion by requiring the governor to consider (1) the existence of
extraordinary mitigating circumstances and (2) the compatibility of early
release with societal safety and welfare. Colo. Rev. Stat. § 17-22.5-
403(4.5)(a). Moreover, JCAP creates a presumption in favor of early parole
if the offender has completed the program and served at least twenty-five
years of the sentence. Colo. Rev. Stat. § 17-34-102(8). Mr. Rainer could
qualify for this presumption by age 44. JCAP thus provides Mr. Rainer an
opportunity for early release despite the need for the governor’s approval.
See Carter v. State, 192 A.3d 695, 710–11, 723–24 (Md. 2018) (holding
that Graham was satisfied in Maryland by an executive order that provided
for parole because the governor’s discretion was constrained by the need to
consider specific factors).
Mr. Rainer also questions the practical availability of JCAP. As he
points out, consideration of his application for entry into JCAP could
include inquiry into the seriousness of his offenses and the impact on the
victims. Colo. Rev. Stat. § 17-34-101(2). But the record does not suggest
12
that JCAP will become unavailable to Mr. Rainer based on the nature of
the offense or the impact on the victims. A 2019 status report shows that
seventeen of the JCAP applications (42%) were approved. Twenty-three
(58%) were rejected. Colo. Dep’t of Corrections, SB 16-180 Status Report
Juvenile Re-Integration Program, Dec. 2019. 5 Of the twenty-three
unsuccessful applicants, only one applicant was rejected because of the
nature of the offense. The report suggests that the nature of the offense
rarely bars participation in JCAP. We thus have little reason to expect
rejection of Mr. Rainer’s application for JCAP based on the seriousness of
the offense or impact on the victims. 6
5
Mr. Rainer asks us to remand to the district court for an evidentiary
hearing that would address the statistical data. But Mr. Rainer did not
object to our consideration of the information, and he had an opportunity
to submit evidence to the district court and to our court on the
administration of JCAP.
6
We base our assessment of JCAP on the current evidentiary record.
Subsequent data on the administration of JCAP could affect how we assess
its creation of opportunities for early release based on demonstrated
maturity and rehabilitation.
13
B. Mr. Rainer’s Opportunities for Release Starting at Age 60
Even if Mr. Rainer does not obtain early release through JCAP, he
could become eligible for the state’s general parole program at 60 if he
earns all available good-time credits. 7
Mr. Rainer argues that even if eligibility comes at age 60, Colorado’s
general parole program would not satisfy Graham. We need not decide
whether Colorado’s general parole program satisfies Graham. Even if it
doesn’t, the program gives Mr. Rainer opportunities for early release
beyond the opportunities available under JCAP.
Mr. Rainer downplays the significance of the opportunity for parole,
pointing to its discretionary nature. We reject this contention. Though
parole in Colorado is ordinarily discretionary, People v. Davis, 429 P.3d
82, 94 (Colo. App. 2018), it may still comply with Graham. In Graham, the
Court observed that a state was not required to release juvenile offenders;
7
The parties disagree on when Mr. Rainer will become eligible for
parole. The government says 60; Mr. Rainer says 75. But this apparent
disagreement is illusory. As Mr. Rainer observes, the Colorado Court of
Appeals predicted that he would become eligible for parole at 75. See Part
II, above. Mr. Rainer treats this prediction as a factual finding and asks us
to presume its correctness. But the Colorado Court of Appeals’s prediction
does not consider (1) the good-time credits that Mr. Rainer earned since
the Court of Appeals’s issuance of an opinion or (2) the credits that he
could earn in the future. The opportunity for these credits exists as a
matter of law. Colo. Rev. Stat. § 17-22.5-405. We thus consider these
credits and need not decide whether we should apply the presumption of
correctness to the Court of Appeals’s prediction.
14
the state needed only to guarantee a meaningful opportunity for release.
560 U.S. at 74–75. A discretionary parole system can thus comply with
Graham.
Mr. Rainer contends that the severity of the crime is the primary
reason for denying parole. He bases this argument on a misreading of the
parole board’s 2018 report. This report states that the most common reason
for denying parole is “the severity of the crime of conviction or behaviors
that represent risks to the public (for example, institutional violations and
violence).” Colo. Div. of Crim. Justice, Analysis of Colorado State Board
of Parole Decisions: FY 2017 Report at 8 (2018). From this evidence, one
can’t tell whether an offender is being rejected because of the severity of
the crime or a lack of rehabilitation. 8
Mr. Rainer also perceives shortcomings in Colorado’s procedural
safeguards for parole hearings. As Mr. Rainer points out, the state does
decline to provide some procedural safeguards. But Mr. Rainer has not
8
Under Colorado’s criteria for parole, the risk of recidivism
constitutes the parole board’s “central consideration.” Colo. Rev. Stat.
§ 17-22.5-404(1)(a); 8 Colo. Code Regs. § 1511-1, 6.01(A). This focus on
the risk of recidivism allows the state parole board to promote integration
into the community, an objective embraced in Graham. 560 U.S. at 74–75.
15
explained how the denial of these safeguards prevents a meaningful
opportunity to demonstrate maturity and rehabilitation. 9
Mr. Rainer instead points to the results in other cases, stating that the
Colorado Court of Appeals found that 90% of parole applications are
denied the first time. For this finding, the court relied on a state audit on
parole decisions through 2008. The audit does not reveal any information
on (1) which inmates are denied parole or (2) why they are denied parole.
For example, the audit does not show whether any of the applicants were
juveniles when they committed their crimes. The omission of this data is
significant because under Colorado law, the parole board can consider
juvenile status at the time of the offense as a mitigating factor supporting
parole. People v. Davis, 429 P.3d 82, 95 (Colo. Ct. App. 2018).
Similar omissions render the habeas record sparse on (1) the
characteristics of the offenders who are denied parole the first time and
(2) the reasons for the denial of first-time applications for parole. Given
the sparsity of evidence in these two areas, the Colorado Court of
Appeals’s reference to the 90% statistic does not undermine the
9
The parties disagree on whether to assess the general parole program
based on (1) when the offender becomes eligible for parole or (2) how long
the offender is expected to live. But we need not resolve this disagreement.
16
significance of Mr. Rainer’s opportunities for early release through
Colorado’s general parole program. 10
Conclusion
Under Graham v. Florida, the State of Colorado must provide Mr.
Rainer with a meaningful opportunity for early release based on
demonstrated maturity and rehabilitation. Mr. Rainer has not shown a
failure by the State to provide this opportunity. Under JCAP, almost half
of the inmates to apply have been accepted. If Mr. Rainer obtains
acceptance into the program when he becomes eligible, he could obtain
release by age 42. Even if he does not obtain release through JCAP, he
could obtain release by age 60 through the general parole program.
In combination, JCAP and the general parole program supply Mr.
Rainer with a meaningful opportunity for early release based on
demonstrated maturity and rehabilitation. We thus affirm the district
court’s denial of habeas relief.
10
In his reply brief, Mr. Rainer asks us to remand for an evidentiary
hearing based on Colorado’s general parole program. We express no
opinion on whether the general parole program alone would suffice; we
conclude only that Graham is satisfied by the combination of JCAP and
Colorado’s general parole program. See p. 5, above. In any event, Mr.
Rainer’s opening brief did not address the need for an evidentiary hearing,
and he did not adequately develop this argument in his reply brief. See
United States v. Mendoza, 468 F.3d 1256, 1260 (10th Cir. 2006) (reply
brief too late to present an argument for reversal); United States v. Hunter,
739 F.3d 492, 495 (10th Cir. 2013) (declining to consider an inadequately
developed argument).
17