Michael Jessup v. David Shinn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL PAUL JESSUP, No. 18-16820
Petitioner-Appellee,
D.C. No.
v. 2:15-cv-01196-
NVW
DAVID SHINN, Director; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA, OPINION
Respondents-Appellants.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted February 9, 2022
Phoenix, Arizona
Filed April 21, 2022
Before: Mary H. Murguia, Chief Judge, Susan P. Graber,
Circuit Judge, and Sidney A. Fitzwater, * District Judge.
Opinion by Judge Graber
*
The Honorable Sidney A. Fitzwater, United States District Judge
for the Northern District of Texas, sitting by designation.
2 JESSUP V. SHINN
SUMMARY **
Habeas Corpus
The panel reversed the district court’s judgment granting
habeas corpus relief to Petitioner Michael Paul Jessup, who
challenged his sentence of life without the possibility of any
form of release, which an Arizona state court imposed for
the first-degree murder Petitioner committed when he was
17 years old.
The district judge held that the Arizona courts’ denial of
post-conviction relief was contrary to and an unreasonable
application of Miller v. Alabama, 567 U.S. 460 (2012), in
which the Supreme Court held that, before a sentencer may
impose a sentence of life without parole on a defendant who
committed a crime as a juvenile, the Eighth Amendment
requires that the defendant receive an individualized
sentencing hearing during which the sentencer considers the
defendant’s youth and its attendant circumstances.
The state post-conviction court had rejected Petitioner’s
Miller claim on the ground that, unlike the individuals
sentenced under the mandatory sentencing schemes at issue
in Miller, Petitioner in fact received an individualized
sentencing hearing during which the sentencing judge, after
considering Petitioner’s youth and its attendant
circumstances, found Petitioner unsuitable for any form of
release.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
JESSUP V. SHINN 3
The panel held that the state court’s application of Miller
was a reasonable one because the sentencing judge
thoughtfully considered whether Petitioner warranted a
sentence of life with the possibility of any form of release,
took into account Petitioner’s youth and the characteristics
of young people, and concluded that Petitioner warranted a
sentence of life without the possibility of release.
Petitioner asserted that under the Arizona statutory
scheme in effect at time of the murder and at the time of the
sentencing, there was no practical difference between a
sentence of natural life and a sentence of life with the
possibility of release. The panel held that the state court
reasonably concluded that, despite this practical result,
Miller does not mandate resentencing. Given Miller’s focus
on the required procedure, and given the sentencing judge’s
extensive deliberation here as to whether Petitioner
warranted a possibility of release, the panel wrote that the
state post-conviction court reasonably distinguished Miller,
which addressed situations in which the sentencing authority
imposed a sentence of life without parole automatically.
The panel remanded for entry of judgment in favor of the
State.
4 JESSUP V. SHINN
COUNSEL
Eliza C. Ybarra (argued), Assistant Attorney General,
Criminal Appeals Section; J.D. Nielsen, Habeas Unit Chief;
Mark Brnovich, Attorney General; Office of the Attorney
General, Phoenix, Arizona; for Respondents-Appellants.
Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Petitioner-Appellee.
OPINION
GRABER, Circuit Judge:
Petitioner Michael Paul Jessup was 17 years old when he
kidnapped, robbed, and murdered a man in Arizona in 1998.
The next year, he pleaded guilty to first-degree murder in
Arizona state court. The sentencing judge held an
individualized sentencing hearing. The judge exercised his
discretion to impose a sentence of life imprisonment without
the possibility of any form of release. Although the judge
weighed among the mitigating factors Petitioner’s youth and
a psychological report that addressed the characteristics of
youth, the judge found Petitioner unsuitable for the more
lenient sentence of life imprisonment with the possibility of
release.
In Miller v. Alabama, 567 U.S. 460 (2012), the Supreme
Court held that, for a defendant who committed a crime as a
juvenile, the Eighth Amendment permits a sentence of life
without parole. But before a sentencer may impose that
harsh sentence on a juvenile offender, the juvenile defendant
JESSUP V. SHINN 5
must receive an individualized sentencing hearing during
which the sentencer considers the defendant’s youth and its
attendant circumstances. Id. at 483. Petitioner sought post-
conviction relief in Arizona state court on the ground that his
sentence violated Miller. The state post-conviction court
rejected Petitioner’s Miller claim on the ground that, unlike
the individuals sentenced under the mandatory sentencing
schemes at issue in Miller, Petitioner in fact received an
individualized sentencing hearing during which the
sentencing judge, after considering Petitioner’s youth and its
attendant circumstances, found Petitioner unsuitable for any
form of release. Because the state court’s application of
Miller was a reasonable one, we reverse the district court’s
grant of habeas relief, and we remand for entry of judgment
in favor of Respondents, who are state officials (“the State”).
FACTUAL AND PROCEDURAL HISTORY
In 1998, when Petitioner was 17 years old, he and a
companion kidnapped 79-year-old Frank Watkins. They
forced Watkins into his pickup truck, took his personal
property, and drove to a remote location. Along the way,
they stopped to pick up another companion. Once the group
arrived at a remote area, Petitioner forced Watkins to walk
to a drainage ditch and then shot him several times in the
head and face, killing him. Police officers arrested Petitioner
about ten days later.
A grand jury indicted Petitioner on five counts, including
one count of first-degree murder. At the time, Arizona
Revised Statutes section 13-703(A) listed three potential
penalties for first-degree murder: (1) death; (2) “natural
life,” Arizona’s term for life without the possibility of
release; and (3) life with the possibility of release (in some
form, such as parole or commutation) after 25 years of
imprisonment, or after 35 years of imprisonment if the
6 JESSUP V. SHINN
victim was less than 15 years old. Ariz. Rev. Stat. § 13-
703(A) (1998). Petitioner and the prosecutor entered into a
plea agreement. Petitioner agreed to plead guilty to first-
degree murder and armed robbery. In exchange, the
prosecutor agreed not to seek the death penalty and to drop
the other three charges.
At the sentencing hearing, the parties debated whether
Petitioner warranted a sentence of life without the possibility
of parole or a sentence of life with the possibility of parole
after 25 years. Petitioner’s lawyer presented testimony by a
psychologist who emphasized Petitioner’s age and age-
related characteristics, including Petitioner’s emotional age
of 12 or 13. Petitioner’s age was not a cursory or tangential
issue. The psychologist has examined numerous young
people, and his 24-page, single-spaced report contextualized
his findings in comparison to other youthful offenders. The
report described Petitioner as “immature” with “regard to
impulse control.” The psychologist explained why
Petitioner was slow to mature and why he had “a functional
social level of about 2/3 [his] chronological age.” It also was
noted that, in general, “[t]he incidence of violence is highest
in the age group 15–24” and that Petitioner “can be no
younger than 43 at [the] time of release.” Addressing
specifically the prospect for a young person’s maturation,
the report concluded:
Having little foresight and even less capacity
for reflection, [Petitioner] has [lived] and is
likely to continue to live in moments as
opposed to epochs. A broadening of
temporal awareness tends to accompany
advancement into adulthood, and for this
reason, I believe that [Petitioner’s] risk of
violent offense will gradually diminish with
JESSUP V. SHINN 7
maturation – particularly after age 25.
Eligibility for, application to, and
granting/denial of parole in any case will
attend to his psychological condition at the
point of that decision many years hence. I
regard the minimum sentence available to the
court of 25 years to life as sufficient, in the
case of Michael Jessup, to offer protection to
the general public.
Petitioner’s lawyer, too, stressed Petitioner’s youth and his
ability to reform.
After much deliberation and weighing of mitigating and
aggravating factors as to the murder count, the judge
sentenced Petitioner to natural life:
So when my choice is between a chance that
you will be paroled and certainty of knowing
that you will be in prison for the rest of your
life, the choice becomes clear to me. I really
do believe that you forfeited your right to
walk as a free member of society, again,
because of the heinousness of the crimes and
cruelty that you imposed on Mr. Watkins.
In 2013, Petitioner filed, in state court, a notice of post-
conviction relief, arguing that his sentence of life without the
possibility of parole violated Miller. The state trial court
assumed that Miller applied retroactively, but the court
denied relief on the ground that the sentencing judge had
considered Petitioner’s age and age-related characteristics.
On appeal, the Arizona Court of Appeals also denied relief,
reasoning in full:
8 JESSUP V. SHINN
Assuming arguendo that Miller applies
retroactively, Jessup has not shown an
entitlement to relief. Miller prohibits
mandatory life sentences without the
possibility of parole for juvenile offenders.
[132 S. Ct.] at 2460. Jessup’s sentence to
natural life was not mandatory. The superior
court noted at sentencing that it had the
option to sentence Jessup either to natural life
or life with a possibility of release after
25 years’ imprisonment. See Ariz. Rev. Stat.
§ 13-703(A) (1999). In considering the
appropriate sentence, the superior court
found Jessup’s age to be one of several
mitigating factors. The court also heard from
a psychologist regarding his presentence
evaluation of Jessup as a juvenile offender.
Among other opinions, the psychologist did
not believe Jessup’s aggressive activity
would extend into adulthood and his
appreciation of the wrongfulness of his acts
would increase with age. The psychologist
further noted that adolescents do not have the
same kind of judgment as adults. In short, the
superior court considered “how children are
different” and Jessup’s sentence to natural
life complied with Miller.
The Arizona Supreme Court summarily denied relief
without comment.
In 2015, Petitioner filed this action, asserting that his life
sentence violates Miller. A magistrate judge recommended
that the district judge deny the petition. The district judge
disagreed and granted habeas relief. The district judge held
JESSUP V. SHINN 9
that the Arizona courts’ denial of relief was contrary to and
an unreasonable application of Miller. The State timely
appeals.
STANDARDS OF REVIEW
We review de novo the district court’s grant of habeas
relief. Jones v. Davis, 8 F.4th 1027, 1035 (9th Cir. 2021).
We review the state court’s decision through the lens of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).
Habeas relief is available only if the state court’s decision
was contrary to, or an unreasonable application of, Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). We consider the
last reasoned decision by the state courts, Demetrulias v.
Davis, 14 F.4th 898, 905 (9th Cir. 2021), here, the Arizona
Court of Appeals’ decision quoted above. Finally, in
conducting our review, we consider only Supreme Court
“precedents as of the time the state court renders its
decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011)
(emphasis and internal quotation marks omitted). The state
court denied relief to Petitioner in 2015, several years after
the Supreme Court decided Miller, 567 U.S. 460.
DISCUSSION
In Miller, the Supreme Court considered state statutes
that required the sentencing judge to impose a mandatory
sentence of life without parole. Id. at 465–69. Because
sentencing judges lacked discretion to choose anything other
than a mandatory sentence of life without parole, the
challenged state statutes prohibited a sentencing judge from
considering any of the defendant’s individual characteristics,
including the defendant’s youth and its attendant
circumstances. Id. at 466, 469 (citing Ark. Code Ann. § 5-
4-104(b) (1997) & Ala. Code §§ 13A-5-40(a)(9), 13A-6-
2(c) (1982)). The Court held that such statutes, when applied
10 JESSUP V. SHINN
to defendants who were juveniles at the time of their crimes,
violate the Eighth Amendment’s prohibition on cruel and
unusual punishment. Id. at 465.
The Court’s reasoning rested on the confluence of two
lines of cases. Id. at 470. The first set of cases, Roper v.
Simmons, 543 U.S. 551 (2005), and Graham v. Florida,
560 U.S. 48 (2010), “establish that children are
constitutionally different from adults for purposes of
sentencing.” Miller, 567 U.S. at 471. “[Y]outh matters in
determining the appropriateness of a lifetime of
incarceration without the possibility of parole.” Id. at 473.
The “characteristics of youth . . . weaken rationales for
punishment [and] can render a life-without-parole sentence
disproportionate.” Id. (emphasis added). State statutes that
impose mandatory life sentences without any possibility of
parole “prohibit a sentencing authority from assessing
whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender.” Id. at 474.
The second line of cases, beginning with Woodson v. North
Carolina, 428 U.S. 280 (1976), “demand[s] individualized
sentencing when imposing the death penalty.” Miller,
567 U.S. at 475. The challenged state statutes’ “mandatory
penalties, by their nature, preclude a sentencer from taking
account of an offender’s age and the wealth of characteristics
and circumstances attendant to it.” Id. at 476. Together, the
two lines of cases “teach that in imposing a State’s harshest
penalties, a sentencer misses too much if he treats every
child as an adult.” Id. at 477.
The Court did not ban sentences of life without parole
for juveniles. But the Court held that, before imposing a
sentence of life without parole, the sentencer must consider
the defendant’s individual characteristics, including his or
her youth. The sentencer must “take into account how
JESSUP V. SHINN 11
children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime of prison.”
Id. at 480. The Court’s decision “mandates only that a
sentencer follow a certain process—considering an
offender’s youth and attendant characteristics—before
imposing [life without parole].” Id. at 483.
Four years later, the Supreme Court held that Miller
applies retroactively. Montgomery v. Louisiana, 577 U.S.
190, 206 (2016). And the Court recently held that Miller
does not mandate any particular factual finding; it requires
only that the sentencer take into account youth and the
mitigating qualities of youth. Jones v. Mississippi, 141 S.
Ct. 1307, 1311 (2021); see also United States v. Briones,
18 F.4th 1170, 1175–76 (9th Cir. 2021) (holding, on remand
from the Supreme Court, that the sentencing court complied
with Miller even though it did not make a factual finding of
permanent incorrigibility). But because those decisions
came after the state court denied relief to Petitioner, we do
not consider them as part of our AEDPA review. Greene,
565 U.S. at 38. Instead, we consider whether the state
court’s denial of post-conviction relief was contrary to, or an
unreasonable application of, Miller at the time of the state
court’s decision.
Miller requires, for a juvenile offender, an individualized
sentencing hearing during which the sentencing judge
assesses whether the juvenile defendant warrants a sentence
of life with the possibility of parole. Here, the sentencing
judge thoughtfully considered whether Petitioner warranted
a sentence of life with the possibility of any form of release,
took into account Petitioner’s youth and the characteristics
of young people, and concluded that Petitioner warranted a
sentence of life without the possibility of release. The state
court did not apply Supreme Court precedent unreasonably
12 JESSUP V. SHINN
when it concluded that the sentencing hearing complied with
Miller.
Petitioner’s argument to the contrary rests entirely on an
analysis of the state’s statutory scheme in 1998, the year of
the murder. As described above, Arizona Revised Statutes
section 13-703(A) listed, in 1998, two potential penalties for
Petitioner’s conviction of first-degree murder once the plea
agreement took the death penalty off the table: (1) life
without the possibility of any form of release; and (2) life
with the possibility of release, including parole, after
25 years of imprisonment. Petitioner points out that, at the
time of the murder in 1998 and at the time of the sentencing
in 1999, persons serving life sentences for crimes committed
in 1994 or later were ineligible for parole. In 1993, the
Arizona legislature had eliminated parole for crimes
committed in 1994 or later, and the legislature had replaced
parole with a credit system for early release. 1993 Ariz.
Sess. Laws, ch. 255, §§ 86, 88; see State v. Vera, 334 P.3d
754, 758–59 (Ariz. Ct. App. 2014) (describing the change).
Moreover, the early-release credits were unavailable for
persons serving a life sentence, even if that sentence
nominally included a possibility of parole. Vera, 334 P.3d
at 760 & n.8.
Petitioner asserts that, applying the 1994 legal change to
Petitioner’s 1999 sentencing, there was no practical
difference to Petitioner between a sentence of natural life
and a sentence of life with the possibility of release. A
sentence of natural life would permit no form of release, and
a sentence of life with the possibility of release would allow
commutation, but not parole. In Petitioner’s view, then, both
sentences would result, as a practical matter, in a sentence of
life without parole. Indeed, the Supreme Court listed
Arizona as among the jurisdictions that require sentences of
JESSUP V. SHINN 13
life without parole. Miller, 567 U.S. at 486 n.13. Petitioner
urges us to conclude that his sentencing hearing thus violated
Miller.
We hold that the state court reasonably concluded that,
despite this practical result, Miller does not mandate a
resentencing in the circumstances of this case. Miller
addressed situations in which the sentencing authority
imposed a sentence of life without parole automatically,
with no individualized sentencing considerations
whatsoever. See, e.g., id. at 466 (Arkansas sentencing
judge’s statement “that ‘in view of the verdict, there’s only
one possible punishment’” (brackets omitted)); id. at 469
(citing Miller v. State, 63 So. 3d 676, 691 (Ala. Crim. App.
2010)); Miller, 63 So. 3d at 691 (Alabama sentencing court’s
imposition of life without parole without “individualized
sentencing or consideration of [evidence in] mitigation”).
Miller’s focus was on requiring the sentencing judge, before
sentencing a juvenile to a lifetime of imprisonment, “to take
into account how children are different, and how those
differences counsel against irrevocably sentencing them to a
lifetime in prison.” Miller, 567 U.S. at 480. That precise
procedure was followed here, albeit with respect to the
possibility of any form of release, not just the possibility of
parole (a single form of release). Given Miller’s focus on
the required procedure, and given the sentencing judge’s
extensive deliberation here as to whether Petitioner
warranted a possibility of release, the state post-conviction
court reasonably distinguished Miller.
The sentencing judge here, after fully considering
Petitioner’s age and other relevant considerations, concluded
that Petitioner did not warrant any form of release.
Necessarily, then, the sentencing judge concluded that
Petitioner did not warrant a possibility of parole, which is
14 JESSUP V. SHINN
one form of release. Nothing in the record suggests that the
precise form of potential release at issue had any effect on
the sentencing judge’s exercise of discretion. Much to the
contrary, the record makes clear that the sentencing judge
(and everyone else involved) genuinely, if mistakenly,
thought that he was considering a sentence of life with the
possibility of parole. 1 The state post-conviction court
reasonably applied Miller in concluding that no resentencing
was warranted here.
Petitioner nevertheless contends that the state court’s
rejection of his Miller claim was unreasonable because, had
the court nominally imposed a sentence of life with the
possibility of release generally or the possibility of parole
specifically, Arizona’s laws would have prevented him from
ever being eligible for parole. Petitioner’s assertion about
the application of state law is questionable at best. Arizona’s
more recent statutory changes and caselaw make it nearly
certain that, had the sentencing judge allowed release or
parole after 25 years, Petitioner would, in fact, be eligible for
parole. See, e.g., Ariz. Rev. Stat. § 13-716 (enacted in 2014)
(“Notwithstanding any other law, a person who is sentenced
to life imprisonment with the possibility of release after
serving a minimum number of calendar years for an offense
that was committed before the person attained eighteen years
1
The misunderstanding by the sentencing judge and everyone else
involved in Petitioner’s case was apparently common. The Arizona
reporter is full of cases in which the sentencing judge mistakenly thought
that he or she had discretion to allow parole. E.g., Chaparro v. Shinn,
459 P.3d 50, 52 (Ariz. 2020); Vera, 334 P.3d at 755. A district court
recently noted that, “[d]espite the elimination of parole, prosecutors
continued to offer parole in plea agreements, and judges continued to
accept such agreements and impose sentences of life with the possibility
of parole.” Viramontes v. Att’y Gen., No. CV-16-00151-TUC-RM, 2021
WL 977170, at *1 (D. Ariz. Mar. 16, 2021).
JESSUP V. SHINN 15
of age is eligible for parole on completion of service of the
minimum sentence, regardless of whether the offense was
committed on or after January 1, 1994.”); Vera, 334 P.3d at
756–61 (describing the application of section 13-716); see
also Chaparro, 459 P.3d at 52–55 (holding that a defendant
who received a sentence of life with the possibility of parole
in 1995 was parole-eligible, notwithstanding the
legislature’s elimination of parole); Ariz. Rev. Stat. § 13-
718(A) (enacted in 2018) (providing that a defendant whose
post-1993 plea agreement stipulated to parole eligibility is
parole-eligible, notwithstanding the legislature’s elimination
of parole).
But even assuming that Petitioner’s doubtful assertion
about state law is correct, Petitioner has shown only that a
hypothetical defendant who received a lenient sentence
would have a strong Miller claim. That is, if a sentencing
judge determined that a hypothetical defendant warranted
the possibility of release or parole, but the state courts
nevertheless refused to permit parole, then that hypothetical
defendant would have a strong Miller claim. But the reason
why such a Miller claim would be viable proves why this
hypothetical does not help Petitioner: that Miller claim
would have merit because the sentencing judge concluded
that the defendant warranted a possibility of release or
parole. Here, by contrast, the sentencing judge
determined—considering Petitioner’s age and the
characteristics of youth—that Petitioner warranted a
sentence without any possibility of any form of release.
Accordingly, in Petitioner’s circumstances, it was
reasonable for the state court to distinguish Miller.
REVERSED AND REMANDED.