Ronnie Vera v. Charles Ryan ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 4 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE ROY VERA, No. 17-17559
Petitioner-Appellee, D.C. No.
4:15-cv-00613-FRZ-DTF
v.
CHARLES L. RYAN, Warden, Director, MEMORANDUM*
Arizona Department of Corrections, et al.,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Argued and Submitted May 15, 2018
San Francisco, California
Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and ZILLY,**
District Judge.
The State of Arizona appeals the conditional grant of Ronnie Vera’s habeas
corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas S. Zilly, United States District Judge for the
Western District of Washington, sitting by designation.
Because the parties are familiar with the history of this case, we need not recount it
here.
I
The Arizona Court of Appeals vacated an Arizona superior court order,
which granted post-conviction relief, reasoning that Arizona Revised Statutes
(“A.R.S.”) “§ 13–716 provides an adequate remedy for Vera’s Miller claim.” State
v. Vera, 334 P.3d 754, 759 (Ariz. Ct. App. 2014) (citing Miller v. Alabama, 567
U.S. 460 (2012)). We can grant relief only if this decision is “contrary to, or
involved an unreasonable application of, clearly established Federal law.” 28
U.S.C. § 2254(d)(1).
The decision is not “contrary to” clearly established federal law because the
Arizona Court of Appeals applied the holding in Miller, as well as the relevant
precedent, and the existence of § 13–716 factually distinguishes this case from
Miller. Vera, 334 P.3d at 757–59; see also Van Lynn v. Farmon, 347 F.3d 735,
738 (9th Cir. 2003) (explaining “contrary to” standard). Nor is the decision an
“unreasonable application of” Miller. See Van Lynn, 347 F.3d at 738 (explaining
“unreasonable application” standard). Miller held that “the Eighth Amendment
forbids a sentencing scheme that mandates life in prison without [the] possibility of
parole for juvenile offenders,” and instead requires “individualized consideration”
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before imposing such a sentence on a juvenile. 567 U.S. at 479–80. Section
13–716 resentences Vera to life in prison with the possibility of parole after
twenty-five years. Miller therefore does not require any consideration of Vera’s
status as a juvenile offender before imposing this sentence. See Montgomery v.
Louisiana, 577 U.S. __, 136 S. Ct. 718, 736 (2016) (indicating that a state can
remedy a Miller problem by passing a statute that provides juveniles sentenced to
life in prison a possibility of parole).
II
The Arizona statute did not violate the Ex Post Facto Clause. An ex post
facto sentencing law imposes a harsher sentence than the “law annexed to the
crime, when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798). When a
sentence available at the time of the crime is subsequently rendered
unconstitutional, “[t]he actual existence of [the invalidated sentencing] statute,
prior to such a determination, is [still] an operative fact and may have
consequences which cannot justly be ignored.” Dobbert v. Florida, 432 U.S. 282,
298 (1977) (quoting Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S.
371, 374 (1940)). One such consequence is providing “fair warning as to the
degree of culpability which the State ascribed” to a particular crime. Id. at 297.
Accordingly, for ex post facto purposes, we compare a challenged sentence to the
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sentences available at the time of the crime, regardless of their present
constitutionality, to determine whether a subsequent law imposes a harsher
sentence. Id. at 297–98; see also Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir.
1989) (“The key ex post facto inquiry is the actual state of the law at the time the
defendant perpetrated the offense . . . [and] whether he had fair notice of the
consequences of his actions.” (second emphasis added)).
At the time of the murder in 1995, the sentencing options for juveniles who
committed first degree murder in Arizona were death or life in prison without the
possibility of parole, which at that time were constitutional sentences. A.R.S.
§ 13–703 (1995) (current version at A.R.S. § 13–751); A.R.S. § 41–1604.09(I)
(1995) (eliminating parole for felony offenses committed on or after January 1,
1994) (current version at A.R.S. § 41–1604.09(I)); see also Miller, 567 U.S. at 479(holding in 2012 that mandatory life in prison without the possibility of parole
sentences for juveniles are unconstitutional); Roper v. Simmons, 543 U.S. 551(2005) (holding that death sentences for juveniles are unconstitutional). Of these
options, Vera received a sentence of life in prison without the possibility of parole.
In 2014, § 13–716 resentenced Vera to life in prison with the possibility of parole
after twenty-five years. See Vera, 334 P.3d at 757–59. Because this sentence is
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not harsher than the original sentence Vera received, § 13–716 is not an ex post
facto law as applied to Vera.
III
In his amended habeas petition, Vera asserted as a ground for relief that
Arizona continues to have no process through which he can seek parole. The
district court did not address this issue because its favorable ruling on Vera’s
ex post facto argument rendered the subject moot. On appeal, we requested
supplemental briefing on the question of whether § 13-716, as implemented by the
Arizona Department of Corrections, actually provides an opportunity for Vera to
obtain parole within the meaning of Miller and Montgomery. Based on the
supplemental submissions, we are not persuaded that it does; however, further
factual development is required, and we remand for the district court’s
consideration in the first instance, with the district court directed to allow
amendment of the petition as necessary.1
REVERSED AND REMANDED.2
1
We also leave it to the district court to consider in the first instance whether
this issue is ripe.
2
We deny Vera’s motion for bail pending appeal, without prejudice to
renewal of the motion before the district court. We also deny as moot Vera's
motion to refer this appeal to mediation. We grant the State’s motion to withdraw
its motion for a stay of this appeal.
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