Opinion
CV-15-01316-PHX-SRB (ESW)
05-09-2022
Bobby Purcell, Petitioner, v. Charles L Ryan, et al., Respondents.
TO THE HONORABLE SUSAN R. BOLTON, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
On January 27, 2022, the Court adopted the undersigned's recommendation that this federal habeas action be reopened under Federal Rule of Civil Procedure 60(b). (Doc. 42). On March 7, 2022, Respondents filed a Limited Answer (Doc. 43) to the Petition for Writ of Habeas Corpus (Doc. 1). In their Limited Answer, Respondents assert that the Court “has two options: (1) stay and abey Purcell's fully unexhausted habeas petition, or (2) dismiss Purcell's habeas petition without prejudice.” (Doc. 43 at 13). Petitioner filed a Reply (Doc. 44) on April 5, 2022 asserting that the Court should direct Respondents to brief the merits of Petitioner's habeas claim. As explained below, Petitioner's habeas claim is the subject of ongoing state court proceedings. The undersigned recommends that the Court stay this matter pending resolution of Petitioner's state court proceedings.
I. BACKGROUND
On July 14, 2015, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. 1). As detailed in the Court's Screening Order:
Petitioner was convicted in Maricopa County Superior Court, case #CR1998-008705, of two counts of first-degree murder, nine counts of attempted first-degree murder, and one count each of aggravated assault and misconduct involving weapons. He was sentenced to multiple terms of imprisonment, including two terms of natural life imprisonment.(Doc. 7 at 2). In his single ground for relief, Petitioner asserts that his life sentences were unconstitutional pursuant to Miller v. Alabama, 567 U.S. 460 (2012) because they were imposed for crimes he committed when he was sixteen years old. (Doc. 1 at 7). In Miller v. Alabama, 132 S.Ct. 2455 (2012), the Supreme Court established procedural requirements that must be followed before a court may impose such a sentence on a juvenile homicide offender.
In Montgomery v. Louisiana, 136 S.Ct. 718, 725 (2016), the Supreme Court explained that Miller “held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile's special circumstances in light of the principles and purposes of juvenile sentencing.” The Supreme Court determined that Miller announced a new substantive rule of constitutional law that is to be retroactively applied. Id. at 736. The Supreme Court also clarified that Miller's holding has a procedural component. Id. at 734. That is, “Miller requires a sentencer to consider a juvenile offender's youth and attendant characteristics before determining that life without parole is a proportionate sentence.” Id. “A hearing where ‘youth and its attendant characteristics' are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not.” Id. at 735. That hearing “gives effect to Miller's substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Id. The Court reiterated the statement in Miller “that a lifetime in prison is a disproportionate sentence for all but the rarest of children, those whose crimes reflect ‘irreparable corruption.'” Id. at 726. Lack of “a formal factfinding requirement does not leave States free to sentence a child whose crime reflects transient immaturity to life without parole.” Id. at 735.
On October 16, 2015, the Court granted Petitioner's Motion (Doc. 4) requesting that the Court stay the habeas proceeding pending resolution of his state court appeal concerning the dismissal of his petition for post-conviction relief. (Doc. 13).
After the Arizona Supreme Court denied Petitioner's Petition for Review, Petitioner sought certiorari review in the United States Supreme Court. (Id. at 2). On October 31, 2016, the United States Supreme Court granted the petition for certiorari, vacated the Arizona Court of Appeals' decision affirming the trial court's denial of post-conviction relief, and remanded the matter to the Arizona Court of Appeals for further consideration in light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016). (Doc. 22-1).
The Arizona Court of Appeals issued an Order directing the parties to file supplemental briefs regarding the issues to be decided on remand. Instead of filing a supplemental brief, the State stipulated that in light of Montgomery, the Arizona Court of Appeals should grant post-conviction relief and remand the case to the trial court for resentencing. (Doc. 33-4). On February 16, 2018, the Arizona Court of Appeals accepted the State's stipulation and remanded the case to the trial court for resentencing. (Doc. 302).
On March 1, 2018, as it appeared that the state courts granted his requested relief, Petitioner moved to voluntarily dismiss his Petition for Writ of Habeas Corpus as moot. (Doc. 30). On March 6, 2018, the Court lifted the stay and dismissed the case as moot. (Doc. 31).
On April 22, 2021, the United States Supreme Court issued its opinion in Jones v. Mississippi, 141 S.Ct. 1307 (2021). The Supreme Court clarified that Miller did not require that a sentencing court make any specific finding of permanent incorrigibility or any on-the-record explanation with an implicit finding of permanent incorrigibility. Id. at 1314-15, 1319-21. Rather, it is sufficient that a sentencing court has the discretion to consider “an offender's youth and attendant characteristics” and the discretion to sentence the offender to a term less than life without parole in order to satisfy Miller. Id. at 131618.
On June 18, 2021, the State filed a motion in the trial court requesting that, in light of Jones, the State be permitted to withdraw from its stipulation to resentencing. (Doc. 335). In its Motion to Withdraw, the State asserted that:
The pending resentencing should be vacated because after Jones it is clear that Purcell's discretionary natural life sentences, where the court could have imposed a lesser sentence and considered Purcell's youth and attendant characteristics, are constitutional under Miller, 567 U.S. at 477-78, and no resentencing is required. Although the State stipulated to resentencing in the Arizona Court of Appeals, the stipulation was made in light of Montgomery after remand from the Supreme Court based on the Courts' incorrect broadened interpretation of Montgomery .... After Jones, the basis for the stipulation to resentencing- “in light of Montgomery”-no longer exists.(Id. at 15) (emphasis in original). The State further asserted that “the State should be permitted to withdraw from the stipulation to resentencing because the state of the law upon which the stipulation was based-in light of Montgomery-has changed.... Jones's clarification of what Miller held, and what Montgomery did not hold, provides good cause for this Court to relieve the State of its stipulation to resentencing and vacate the resentencing proceedings.” (Id. at 17) (emphasis in original).
In a minute entry filed on November 16, 2021, the trial court concluded that Jones constitutes a change in the state of the law and that the trial court may thus “deviate from the mandate and relieve the State of the stipulation it made in the Court of Appeals.” (Doc. 33-8 at 3). The trial court stated that “[t]o find otherwise would be to engage in a resentencing that is not constitutionally required under the law as it currently stands.” (Id.). In explaining why it was vacating the resentencing hearing and dismissing Petitioner's petition for post-conviction relief, the trial court stated:
First, the Court finds that Purcell's sentencing complied with the requirement that the sentencer have the discretion to
sentence him to a sentence less than natural life. Under A.R.S. § 13-703, the sentencing options available to the trial court were natural life or life with the possibility of release after 25 years. Thus, Purcell's natural life sentences were not mandatory.
Second, even if Miller applies, the trial court thoroughly considered Purcell's youth and attendant characteristics, and thus satisfied Miller. In Jones, the Supreme Court found that Miller held that a sentencer need not make a finding of permanent incorrigibility to impose a sentence of life without parole, but must only consider the offender's “youth and attendant characteristics.” Jones at 1311, quoting Miller at 483.
Here, the trial court considered the fact that Purcell was 16 years of age at the time of the homicides, as well as his lack of family support, including “parental rejection, abandonment and abuse.” (Special Verdict.) The Court considered that no adult in Purcell's life was willing or able to make Purcell a priority, and that at the age of sixteen, he could not cope with his tremendous problems on his own. (Id.) Thus, the trial court satisfied Miller's requirements.(Id. at 2).
Following the trial court's ruling, Petitioner filed a notice of appeal in the Arizona Court of Appeals. (Doc. 43-2 at 60-61). On December 7, 2021, the Arizona Court of Appeals dismissed the appeal, explaining that a defendant convicted at trial who seeks appellate review of a trial court's final decision in a post-conviction proceeding must file a petition for review. (Id. at 63). Petitioner moved for reconsideration, which the Arizona Court of Appeals denied. (Id. at 94). On December 22, 2021, Petitioner petitioned the Arizona Supreme Court for review of Arizona Court of Appeals' order dismissing Petitioner's appeal. (Id. at 96-112). On April 5, 2022, the Arizona Supreme Court granted the Petition for Review. (Doc. 45 at 4).
The Arizona Supreme Court granted review only of the following issue: “Did the Court of Appeals err by concluding that it did not have appellate jurisdiction over the dismissal of the re-sentencing proceedings?” (Doc. 45 at 4; Doc. 43-2 at 98).
The Arizona Supreme Court has not yet issued its decision on Petitioner's Petition for Review. The undersigned concurs with Respondents that the District Court should stay this matter pending resolution of Petitioner's state court proceedings. See, e.g., Darr v. Burford, 339 U.S. 200, 204 (1950) (explaining that “it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation”); Reed v. Ross, 468 U.S. 1, 11 (1984) (“[W]e have long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.”) (citations and internal quotation marks omitted).
II. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court stay this matter pending resolution of Petitioner's state court proceedings.
IT IS FURTHER RECOMMENDED that the Court direct the Clerk of Court to indicate on the docket that this case is stayed.
IT IS FURTHER RECOMMENDED that the Court direct Respondents to file a notice every ninety days advising the Court of the status of Petitioner's state court proceedings.
IT IS FURTHER RECOMMENDED that the Court direct Petitioner to file a motion to lift the stay within thirty days from the date Petitioner's state court proceedings have concluded.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.