Petition for Writ of Certiorari — Alvin Perry Jordan, Petitioner v. Michigan

NO.

IN THE SUPREME COURT OF THE UNITED STATES

ALVIN PERRY JORDAN,

Petitioner,

V.

PEOPLE OF THE STATE OF MICHIGAN,

Respondent.

On Petition for Writ of Certiorari to the

State of Michigan Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Alvin Perry Jordan #961277

Petitioner, Pro Se

St. Louis Correctional Facility

8585 N. Croswell Road

St. Louis, Michigan 48880

*NOTICE: This document was prepared with the assistance of a non-attorney prisoner

assigned to the Legal Writer Program with the Michigan Department of

Corrections.

QUESTION PRESENTED

1. DID THE STATE OF MICHIGAN COURT OF APPEALS ERRONEOUSLY

FIND THAT MR. JORDAN'S MANDATORY SENTENCE OF LIFE

WITHOUT THE POSSIBILITY OF PAROLE DOES NOT REPRESENT A

DENIAL OF DUE PROCESS OR VIOLATE CONSTITUTIONAL

PROHIBITIONS ON CRUEL AND UNUSUAL PUNISHMENT?

TABLE OF CONTENTS

QUESTIONSPRESENTED ............................................................................................................

TABLE OF CONTENTS ................................................................................................................ ii

TABLEOF AUTHORITIES .......................................................................................................iiiii

ORDERSBELOW...........................................................................................................................1

STATEMENTOF JURISDICTION................................................................................................2

STATUTORY PROVISIONS INVOLVED....................................................................................3

STATEMENTOF THE CASE........................................................................................................4

REASONSFOR GRANTING THE WRIT.....................................................................................5

I.

THE STATE OF MICHIGAN COURT OF APPEALS ERRONEOUSLY

FOUND THAT MR. JORDAN'S MANDATORY SENTENCE OF LIFE

WITHOUT THE POSSIBILITY OF PAROLE DOES NOT REPRESENT A

DENIAL OF DUE PROCESS OR VIOLATE CONSTITUTIONAL

PROHIBITIONS ON CRUEL AND UNUSUAL PUNISHMENT . ............................. 5

CONCLUSION................................................................................. ................................................ 8

APPENDIX, VOL. I:

APPENDIX A: Michigan Court of Appeals Opinion Affirming State Court Judgment of

Conviction and Sentence

APPENDIX B: Steinberg, Risk Taking in Adolescence, Association for Psychological

Science, 2007, Vol 16, No. 2, p 56.

APPENDIX C: Michigan Supreme Court Order Denying Leave to Appeal on Direct Appeal

of State Court Judgment

ii

TABLE OF AUTHORITIES

Cases

Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)..........................7

Miller v. Alabama,

U.S.

132 S. Ct. 2464, 183 L. Ed. 2d 407 (2012) ...................... passim.

-,

People v Skinner, 312 Mich App 15, 23-27; 877 NW2d 482 (2015).............................................. 6

People v. Jordan,

Mich. _; 901 N.W.2d 109; 2017 Mich. LEXIS 1785 (2008) ..................1

People v. Jordan, 2017 Mich. App. LEXIS 367 (Mich. Ct. App., Mar. 7, 2017) ...........................1

Roper v. Simmons,543 U.S. 551, 570. 125 S. Ct. 1183, 161L. Ed. 2d 1(2005) ...........................7

United States v. Webster,820 F.3d 944 (2016); cert. den. 2016 U.S. LEXIS 5040

(U.S., Oct. 3, 2016) ......................................................................................................................... 7

Constitutions, Statutes and Court Rule

28 U.S.C. § 1257(a) .................................................................................................................... 2, 3

Const 1963, art 1, §§ 16, 17............................................................................................................ 6

Mich. Comp. Laws § 750.227b.1.................................................................................................... 4

Mich. Comp. Laws § 750.529......................................................................................................... 4

Mich. Comp. Laws § 750.82........................................................................................................... 4

Mich. Comp. Laws §750.316(1)(a) ................................................................................................. 4

Mich. Comp. Laws §750.316(1)(b) ................................................................................................4

USConst, Ams VIII, XIV............................................................................................................... 6

Other Authorities

C. Antoinette Clarke, The Baby and the Bathwater, 53 U. Kan. L. Rev. 659, 710 (2005)............. 7

Melinda Beck, Delayed Development: 20-Somethings Blame the Brain,

WallSt. J., Aug. 23, 2012................................................................................................................ 7

Rebels With a Cause, New Sci., Jan. 22, 2000, at 22 ....................................................................7

Steinberg, Risk Taking in Adolescence, Association for Psychological Science, 2007,

Vol16, No. 2, p 56 .......................................................................................................................... 6

111

ORDERS BELOW

The State of Michigan Court of Appeals affirmed Mr. Jordan's convictions and sentences

in an appeal of right from his state court judgment in an unpublished Opinion dated March 7,

2017. This Opinion is reproduced in the appendix to this petition as Appendix A and is cited at

People v. Jordan, 2017 Mich. App. LEXIS 367 (Mich. Ct. App., Mar. 7, 2017).

The Michigan Supreme Court denied Mr. Jordan leave to appeal on direct appeal of his

state court judgment in an Order dated September 12, 2017. This Order is reproduced in the

appendix to this petition as Appendix C and is cited at People v. Jordan,

N.W.2d 109; 2017 Mich. LEXIS 1785 (2008).

1

Mich.

; 901

STATEMENT OF JURISDICTION

The opinion affirming Mr. Jordan's convictions and sentences in an appeal of right from

his state court judgment in this case was entered by the State of Michigan Court of Appeals on

March 7, 2017. The State of Michigan Court of Appeals Opinion is reproduced in the appendix

to this petition as Appendix A. Mr. Jordan timely sought discretionary review with the State of

Michigan Supreme Court of the March 7, 2017 State of Michigan Court of Appeals Opinion. On

September 12, 2017 the Michigan Supreme Court entered a final judgment denying Mr. Jordan's

application for leave to appeal. The State of Michigan Supreme Court Order is reproduced in the

appendix to this petition as Appendix C.

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257(a).

2

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1257(a):

Final judgments or decrees rendered by the highest court of a state in which a

decision could be had, may be reviewed by the Supreme Court by writ of

certiorari where the validity of a treaty or statute of the United States is drawn in

question on the ground of its being repugnant to the Constitution treaties, or laws

of the United States, or where any title, right, privilege, or immunity is specially

set up or claimed under the Constitution or treaties or statutes of, or any

commission held or authority exercised under, the United States.

3

STATEMENT OF THE CASE

Petitioner, Alvin Perry Jordan, was arrested and charged in connection with a shooting

that occurred in Ecorse, Michigan on December 29, 2014. At the time of the offense Petitioner

was the age of 18 years-7 months-4 weeks-iday. Following a jury trial in the Wayne County

Circuit Court, Petitioner was acquitted of felonious assault, Mich. Comp. Laws § 750.82; but

convicted of first-degree premeditated murder, Mich. Comp. Laws §750.316(1)(a); first-degree

felony murder, Mich. Comp. Laws §750.316(1)(b); armed robbery, Mich. Comp. Laws §

750.529; and felony-firearm, Mich. Comp. Laws § 750.227b.l. The trial court sentenced

Petitioner to concurrent prison terms of life without the possibility of parole for each count of

-

murder and 15 years to life for robbery, all consecutive to the mandatory two-year term for

felony-firearm. [Appendix A.]

The State of Michigan Court of Appeals affirmed Petitioner's convictions, but remanded

to the trial court for resentencing on his armed robbery conviction, and for correction of the

judgment of sentence to specify one conviction for first-degree murder, supported by two

different theories. [Appendix A.]

The State of Michigan Supreme Court denied discretionary review. [Appendix C.]

4

REASONS FOR GRANTING THE WRIT

1.

THE STATE OF MICHIGAN COURT OF APPEALS ERRONEOUSLY

FOUND THAT MR. JORDAN'S MANDATORY SENTENCE OF LIFE

WITHOUT THE POSSIBILITY OF PAROLE DOES NOT REPRESENT A

DENIAL OF DUE PROCESS OR VIOLATE CONSTITUTIONAL

PROHIBITIONS ON CRUEL AND UNUSUAL PUNISHMENT.

In Miller v Alabama, the United States Supreme Court held that state laws mandating a

juvenile die in prison run "afoul" of its jurisprudence requiring "individualized sentencing for

defendants facing the most serious penalties." Miller v Alabama,

US _; 132 S Ct 2455, 2460

-

(2012). Thus, statutory schemes mandating a sentence of life without the possibility of parole for

defendants under the age of 18 at the time of their crimes "violate[] the Eighth Amendment's

prohibition on 'cruel and unusual punishments." Id.

The Miller decision was based upon two strands of United States Supreme Court

precedent: (1) those cases categorically barring sentences where there is a mismatch between the

culpability of a class of offenders and the severity of a penalty; and (2) those cases requiring

individualized sentencing for the harshest sentences available under the law. Id. at 2463-2464

(citations omitted).

Much of the Miller Court's analysis was related to its conclusion that children are

constitutionally different from adults for the purposes of sentencing. Id. at 2464. This diminished

culpability and greater prospect for reform is based upon judicial recognition of a growing body

of brain science, psychology, and social science. Id. at 2464-2465. In short, there are

fundamental differences between juvenile and adult minds in the part of the brain that controls

impulsive behavior. Id. This leads juveniles to engage in impulsive, risky behaviors without a

full appreciation for consequences or delayed gratification. Id. Further, this very same science

shows that juveniles do not magically age out of this mental state when they turn 18, but rather

continue to mature well into their mid-20s. See, e.g. Steinberg, Risk Taking in Adolescence,

Association for Psychological Science, 2007, Vol 16, No. 2, p 56, attached as Appendix B.

Thus, the very rationale that compelled our Supreme Court to prohibit any sentencing

scheme that makes the state's harshest penalty automatic for juvenile offenders is equally

applicable to Mr. Jordan, who was only 18 years old at the time of the instant offense. The legal

distinction between a 17-year-old "juvenile" and an 18-year-old "adult" is not only incompatible

with the science underlying the Miller decision, but an arbitrary and unsupportable legal fiction.

To allow Mr. Jordan to be sentenced without the sort of individualized sentencing required under

Miller is a violation of his rights to due process and to be free from cruel and unusual

punishment. US Const, Ams VIII, X1V; Const 1963, art 1, § § 16, 17.

In its decision the State of Michigan Court of Appeals offers:

"On appeal, defendant urges this Court to extend the holding in

Miller to 18-year-old offenders. As discussed by this Court in

People v Skinner, 312 Mich App 15, 23-27; 877 NW2d 482

(2015), the Miller decision represents a culmination of several

decisions by the United States Supreme Court over the last 30

years that have gradually eased the automatic imposition of harsh

sentencing for young offenders. As noted in Skinner, these

decisions are based on the perceived differences between juvenile

offenders and those who have reached the age of majority. Id. at

23-27. In contrast, defendant points only to a study noting that

young adult brains share common risk-taking or impulse control

features with those of juveniles. Defendant's study does support a

position that, globally, mandatory life sentences for young

offenders who have not reached full brain development is

somehow unfair, or that the distinction between a 17-year-old and

an 18-year-old is somehow "pure legal fiction." Any philosophical

merit to defendant's position aside, defendant points to no legal

authority to support his position. Accordingly, we decline

defendant's invitation to extend Miller to 18-year old offenders.

The trial court did not violate the constitutional prohibition on

cruel and unusual punishment by adhering to the demarcation

between those who have attained the age of 18 years and those

under 18 years of age, and by thereby imposing the mandatory

sentence of life imprisonment without parole for defendant's

conviction of first-degree murder." [Appendix A]

The State of Michigan Court of Appeals erroneously finds that Petitioner did not provide

legal authority and points only to a study noting that young adult brains share common risktaking or impulse control features with those of juveniles. Clearly, that court did not rely upon a

close reading of Miller.

In United States v. Webster, 820 F.3d 944 (2016); cert. den. 2016 U.S. LEXIS 5040

(U.S., Oct. 3, 2016); 8' Circuit Court of Appeals Judge Bright's dissent relies upon Miller, in a

non-capital sentencing departure-upward variance from the Guidelines range of 70 to 87 months

to statutory maximum of 120 months.

"Further, Webster was 20-years-old at the time of the offense.

Since 2005, the Supreme Court, has consistently held young

people are most likely to change during a period of incarceration.

132 S. Ct. 2464, 183 L.

U.S.

See, e.g., Miller v. Alabama,

Ed. 2d 407 (2012) (concluding "a child's character is not as 'well

formed' as an adult's; his traits are 'less fixed' and his actions are

less likely to be 'evidence of irretrievabl[e] deprav[ity]"'

(alteration in original) (quoting Roper v. Simmons, 543 U.S. 551,

570. 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)). In fact,

psychological research indicates the human brain does not reach its

ultimate stage of development until adolescents reach their midtwenties. See e.g., C. Antoinette Clarke, The Baby and the

Bathwater, 53 U. Kan. L. Rev. 659, 710 (2005) (citing John

McCrone, Rebels With a Cause, New Sci., Jan. 22, 2000, at 22);

Melinda Beck, Delayed Development: 20-Somethings Blame the

Brain, Wall St. J., Aug. 23, 2012. Thus, young people like Webster

are the most likely to reform while in prison. Cf. Miller, 132 S. Ct.

2464, 183 L. Ed. 2d 407 (noting that Roper, and Graham,

established that juveniles have "greater prospects for reform" and,

therefore, "are less deserving of the most severe punishments"

(quoting Graham v. Florida, 560 U.S. 48, 68, 130 S. Ct. 2011, 176

L. Ed. 2d 825 (2010))).

,

7

Accordingly, I dissent and would vacate Webster's sentence,

remanding this case to the district court for resentencing."

(Webster, at 7.)

Petitioner submits that the constitutionality of Miller's age of majority demarcation in

context of scientific authorities will continue to be brought to question. As of now the state cases

are too numerous to cite here. Petitioner urges this Court to address this question in the

constitutional context of evolving standards of decency relied upon in Miller.

CONCLUSION

WHEREFORE, for the foregoing reasons, Petitioner Jordan respectfully asks this

Honorable Court to grant certiorari in this case vacating Petitioner's sentence and remand this

matter to the sentencing court for individualized sentencing consistent with his constitutional

rights.

Respectfully Submitted,

Date:_

s/Alvin Perry Jordan #961277

Petitioner, Pro Se

St. Louis Correctional Facility

8585 N. Croswell Road

St. Louis, Michigan 48880

8