Petition for Writ of Certiorari — Joseph A. Clark, Petitioner v. Eileen Ramey, Superintendent, Jefferson City Correctional Center

Case No. _____________

__________________________________________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________

JOSEPH A. CLARK,

Petitioner,

vs.

EILEEN RAMEY, SUPERINTENDENT

JEFFERSON CITY CORRECTIONAL CENTER,

Respondent.

__________________________________________________

On Petition For A Writ Of Certiorari

From The Supreme Court of Missouri

__________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________________________

KENT E. GIPSON

Law Office of Kent Gipson, LLC

121 East Gregory Boulevard

Kansas City, Missouri 64114

816-363-4400

816-363-4300 Fax

kent.gipson@kentgipsonlaw.com

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED

Petitioner is a Missouri prisoner who is serving a mandatory sentence of life

without parole for a murder, committed when he was sixteen years old, that was

declared unconstitutional in Miller v. Alabama, 132 S. Ct. 2455 (2012). After the

Miller decision issued, petitioner filed a petition for a writ of habeas corpus in the

Missouri Supreme Court seeking a new individualized sentencing proceeding as

required by the Eighth Amendment under Miller.

After the decision issued in Montgomery v. Louisiana, 136 S. Ct. 718

(2016), the Missouri Supreme Court issued an order and judgment granting the

petition, in part, holding that Montgomery did not require a resentencing

proceeding and that the Eighth Amendment violation under Miller could be

rectified if either the Missouri legislature or the Governor allowed petitioner and

other similarly situated Missouri prisoners to petition for parole after serving

twenty-five years. Shortly thereafter, the Missouri legislature passed S.B. 590,

which modified Missouri’s first degree murder statute and its parole laws to allow

juveniles who received mandatory sentences of life without parole to petition the

parole board to hold a hearing after they have served twenty-five years of their

sentences. After the Governor signed this legislation, the Missouri Supreme Court

withdrew its previous order and summarily denied petitioner’s habeas corpus

petition, citing the enactment of S.B. 590.

Petitioner then filed another original habeas corpus petition in the Missouri

Supreme Court asserting that S.B. 590 was constitutionally insufficient to remedy

his Eighth Amendment rights to an adversarial resentencing proceeding and a

meaningful opportunity for release. The Missouri Supreme Court summarily

denied petitioner’s habeas petition.

Based upon the foregoing events, this case presents the following questions

regarding whether the Missouri Supreme Court’s ruling that this legislation, that

allows juveniles the possibility of obtaining parole after twenty-five years without

the necessity of a resentencing proceeding, violates the Sixth, Eighth, and

Fourteenth Amendments.

1.

Does the Eighth Amendment, as interpreted in Miller and

Montgomery, require juvenile defendants, who had previously been illegally

sentenced to mandatory terms of life imprisonment without parole for murder,

receive adversarial resentencing proceedings.

2.

Do Missouri’s parole laws and procedures, as modified by S.B. 590 to

permit juveniles serving mandatory life sentences without the possibility of parole

to request a parole hearing after serving twenty-five years, violate the Eighth and

Fourteenth Amendments by failing to provide juvenile offenders a meaningful and

realistic opportunity for release.

3.

Do the Sixth and Fourteenth Amendments require that a jury must

find beyond a reasonable doubt that a juvenile’s crimes reflect “irreparable

corruption” and were not the result of “transient immaturity” before a sentence of

life without parole may be imposed.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................. iii

PETITION FOR A WRIT OF CERTIORARI ......................................................... 1

OPINIONS AND ORDERS BELOW ...................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............... 1

STATEMENT OF THE CASE ................................................................................. 2

REASONS FOR GRANTING THE WRIT............................................................... 7

I.

CERTIORARI SHOULD BE GRANTED TO DETERMINE

WHETHER JUVENILE DEFENDANTS WHO RECEIVED A

SENTENCE OF LIFE WITHOUT PAROLE FOR MURDER MUST

RECEIVE ADVERSARIAL RESENTENCING PROCEEDINGS TO

COMPLY WITH THE EIGHTH AMENDMENT REQUIREMENTS

MANDATED BY MILLER AND MONTGOMERY........................................ 7

II.

CERTIORARI SHOULD BE GRANTED TO DETERMINE

WHETHER MISSOURI’S CURRENT PAROLE LAWS VIOLATE

THE EIGHTH AMENDMENT BY FAILING TO PROVIDE

JUVENILES CONVICTED OF MURDER AND SENTENCED TO

LIFE WITHOUT PAROLE A MEANINGFUL AND REALISTIC

OPPORTUNITY FOR RELEASE ................................................................. 15

III.

CERTIORARI SHOULD BE GRANTED TO ADDRESS

WHETHER THE SIXTH AMENDMENT REQUIRES THAT A

JURY DETERMINE WHETHER THE CRIMES COMMITTED

INVOLVED IRREPARABLE CORRUPTION AND WHETHER

THE CRIMES REFLECTED TRANSIENT IMMATURITY

BEFORE A SENTENCE OF LIFE WITHOUT PAROLE CAN BE

CONSTITUTIONALLY IMPOSED UPON A JUVENILE

CONVICTED OF MURDER………………………………………............. 27

i

CONCLUSION ....................................................................................................... 30

CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES

Cases

Adams v. Alabama, 136 S. Ct. 1796 (2016) ………………………………………10

Alleyne v. United States, 570 U.S. 99 (2013)………………………………….….28

Brown v. Precythe, 2017 WL 4980872 (W.D. Mo. Oct. 01, 2017)……………….22

Cabana v. Bullock, 474 U.S. 376 (1986) ……………………………………...29, 30

Diatchenko v. District Attorney, 27 N.E.3d 349, 357-359 (Mass. 2015) …………26

Enmund v. Florida, 458 U.S. 782 (1982)…………………………………… ........29

Garnett v. Wetzel, No. 13-3439, 2016 WL 4379244 (E.D. Pa. Aug. 17, 2016) ......13

Graham v. Florida, 560 U.S. 48 (2010)……………………… . 7, 15, 16, 25, 26, 27

Greiman v. Hodges, 79 F.Supp.3d 933 (S.D. Iowa 2015)…………….16, 17, 25, 26

Hayden v. Keller, 134 F.Supp.3d 1000 (E.D. N.C. 2015)………………….....16, 17

Lute v. Mo. Board of Probation and Parole, 218 S.W.3d 431 (Mo. banc 2007)… 19

Malvo v. Mathena, 893 F.3d 265 (4th Cir. 2018)…………………………....7, 8, 14

Maryland Restorative Justice Initiative v. Hogan, No. ELH-16-1021, 2017 WL

467731 (D. Md. Feb. 03, 2017)……………………………………………16, 17

Matthews v. Eldridge, 424 U.S. 319 (1976) ………………………………………26

Miller v. Alabama, 132 S. Ct. 2455 (2012)...................................................... passim

Montgomery v. Louisiana, 136 S. Ct. 718 (2016) ........................................... passim

Ring v. Arizona, 536 U.S. 584 (2002) ...... …………………………………….28, 29

Sen v. State, 301 P.3d 106 (Wyo. 2014) …………………………………………..12

iii

Songster v. Beard, 201 F.Supp.3d 639 (E.D. Pa. 2016) …………………………..13

State v. Clark, 913 S.W.2d 399 (Mo. App. W.D. 1996)……………………………3

State ex rel. Cavallaro v. Groose, 908 S.W.2d 133 (Mo. banc 1995)…………….18

State ex rel. Clark v. Cassady, No. SC96792………………………………………1

State v. Hart, 404 S.W.3d 232 (Mo. banc 2013) …………………………………...4

State v. Nathan, 404 S.W.3d 253 (Mo. banc 2013) ………………………………...4

Tatum v. Arizona, 137 S. Ct. 11 (2016)……………………………………..….....11

Veal v. State, 784 S.E.2d 403 (Ga. 2016) . ……………………………………12, 13

Wershe v. Combs, No. 12-1375, 2016 WL 1253036 (W.D. Mich. Mar. 31,

2016)……………………………………………………………………………16

Williams v. Florida, 242 So.3d 280 (Fla. 2018)…………………………………..28

Other Authorities

U.S. Const. Amend. VI……………………………………………………….passim

U.S. Const. Amend. XIII……………………………………………………..passim

U.S. Const. Amend. XIV…………………………………………………………...2

28 U.S.C. § 1257(a) ………………………………………………………………...1

28 U.S.C. § 2101(c)………………………………………………………………... 1

Sup. Ct. R. 13.1……………………………………………………………………..1

§ 217.690.1 RSMo Cum. Supp. (2016) ……………………………………..…2, 18

§ 565.020 RSMo (1986) .... …………………………………………......……….2, 3

§ 569.170 RSMo (1986)………………………………………………………..…..3

iv

§ 571.015 RSMo (1986)……………………………………………………...….2, 3

S.B. 590………………………………………………………………………passim

Mo. S. Ct. R. 29.15……………………..…………………………………………..3

Mo. S. Ct. R. 91………...………………………………………………………..3, 5

14 CSR 80-2.010(5)……….…………………………………………………..19, 20

American Civil Liberties Union, False Hope: How Parole Systems Fail Youth

Serving Extreme Sentences (Nov. 2016)…………………………………..........20

The Marshall Project, Life Without Parole (July 10, 2015)…………………..20, 21

Sarah French Russell, Jury Sentencing and Juveniles: Eighth Amendment Limits

and Sixth Amendment Rights, 56 B.C.L. Rev. 553 (2015)…………………28, 29

v

PETITION FOR A WRIT OF CERTIORARI

Petitioner Joseph Clark respectfully requests that a writ of certiorari issue to

review the judgment and decision of the Missouri Supreme Court that denied his

petition for a writ of habeas corpus challenging his mandatory sentence of life

without parole (“LWOP”) that was imposed upon him for a murder that occurred

in 1993 when petitioner was sixteen years of age.

OPINIONS AND ORDERS BELOW

The July 03, 2018, order of the Missouri Supreme Court in State ex rel.

Clark v. Cassady, No. SC96792, denying the original petition for a writ of habeas

corpus, is unpublished and is published in the appendix at A-1.

JURISDICTIONAL STATEMENT

The Missouri Supreme Court issued its final judgment on July 03, 2018.

Under 28 U.S.C. § 2101(c) and Rule 13.1, the present petition for a writ of

certiorari was required to be filed by petitioner within ninety days.

The

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the Sixth Amendment to the United States Constitution

that states, in pertinent part: “In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial by an impartial jury…and to have the

Assistance of Counsel for his defense.”

1

This case also involves the Eighth Amendment to the United States

Constitution that states: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

This case also involves the Fourteenth Amendment to the United States

Constitution that states, in pertinent part: “[N]o state shall…deprive any person of

life, liberty, or property, without due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

This case also involves § 217.690.1 RSMo Cum. Supp. (2016) that states:

“When in its opinion there is reasonable probability that an offender of a

correctional center can be released without detriment to the community or to

himself, the board may in its discretion release or parole such person except as

otherwise prohibited by law. All paroles shall issue upon order of the board, duly

adopted.”

STATEMENT OF THE CASE

A.

Procedural History

Petitioner is currently serving a sentence of life without parole, after being

found guilty of a murder which occurred on May 05, 1993 when petitioner was

sixteen years old. (A-108). Petitioner was indicted by a Jackson County grand

jury on September 24, 1993 for one count of first degree murder in violation of §

565.020 RSMo (1986), one count of armed criminal action in violation of §

2

571.015 RSMo (1986), and one count of second degree burglary in violation of §

569.170 RSMo (1986). (A-109). Under Missouri’s first degree murder statute, the

only possible penalties that the jury could impose on an offender, including a

juvenile offender, convicted of first degree murder was the death penalty or life

imprisonment without the possibility of parole. See § 565.020.2 RSMo (1986).

The case proceeded to jury trial in the Circuit Court of Jackson County,

where petitioner was found guilty as charged on February 25, 1994. (A-108). He

was sentenced as a prior offender to consecutive sentences of life without parole

for the first degree murder charge, fifty years for the armed criminal action charge,

and seven years for the second degree burglary charge by Judge David Shinn on

April 15, 1994. (Id.).

Petitioner, thereafter, filed a timely notice of appeal and a timely motion for

post-conviction relief pursuant to Rule 29.15 under the consolidated review system

that existed in Missouri until 1996. The motion court denied relief without an

evidentiary hearing. The Court of Appeals affirmed petitioner’s convictions and

denied post-conviction relief on January 16, 1996. State v. Clark, 913 S.W.2d 399

(Mo. App. W.D. 1996).

After this Court issued its opinion in Miller v. Alabama, 132 S. Ct. 2455

(2012), petitioner filed a petition for a writ of habeas corpus, pursuant to Mo. S. Ct.

R. 91, in the Missouri Supreme Court on November 27, 2012. Petitioner’s state

3

habeas corpus petition primarily raised the claim that his mandatory sentence of

LWOP under Missouri law imposing his first degree murder conviction violated

the Eighth Amendment under Miller and thus required that he receive a new

sentencing hearing

In 2013, while petitioner’s state habeas corpus case was pending, the

Missouri Supreme Court issued opinions in State v. Hart, 404 S.W.3d 232 (Mo.

banc 2013) and State v. Nathan, 404 S.W.3d 253 (Mo. banc 2013), both involving

juveniles who were sentenced to mandatory sentences of LWOP and both

advancing Miller violations in their direct appeals. The Missouri Supreme Court

ordered that both men be resentenced and provided a procedural framework for

trial courts to follow in light of the fact that the Missouri legislature had not acted

to amend Missouri’s first degree murder statute to comport with Miller’s

requirement of individualized sentencing.

Petitioner’s state habeas corpus petition and similar petitions filed by

approximately eighty other Missouri juvenile prisoners who had unconstitutional

LWOP sentences languished before the Missouri Supreme Court for three more

years until this Court issued its decision in Montgomery v. Louisiana, 136 S. Ct.

718 (2016), that held that its decision in Miller is retroactive. On March 15, 2016,

the Missouri Supreme Court issued blanket orders in this case and in the eighty

other pending cases involving juveniles who received LWOP for first degree

4

murder, granting habeas relief in part. Relying on a passage from the majority

opinion in Montgomery, the Missouri Supreme Court held that a resentencing

proceeding was not constitutionally required and that the proper remedy that

Missouri prisoners could seek under Miller would be to petition for parole after

serving twenty-five years unless either the Governor of Missouri or the legislature

took action to bring Missouri law in conformity with Miller and Montgomery.

Shortly thereafter, the Missouri General Assembly, on the last day of its

2016 session on May 13, 2016, passed S.B. 590. (A-97-107). This legislation

adopted the same remedy judicially crafted by the Missouri Supreme Court in its

March 15, 2016 order in this case, that allowed juveniles who previously received

LWOP for first degree murder to petition the parole board for a parole hearing

after serving twenty-five years of their sentence. (Id.). This legislation was signed

into law by Governor Jay Nixon on July 13, 2016, and immediately went into

effect due to an emergency clause contained within the law.

On July 19, 2016, the Missouri Supreme Court issued a superseding order

vacating its previous order of March 15, 2016. This order denied petitioner’s

rehearing motion as moot and summarily denied the habeas petition, citing S.B.

590.

On November 16, 2017, petitioner again filed a petition for writ of habeas

corpus, pursuant to Mo. S. Ct. Rule 91, in the Missouri Supreme Court. (A-2-37).

5

Petitioner asserted in his petition that S.B. 590 was constitutionally insufficient to

remedy his right to an adversarial resentencing proceeding and a meaningful

opportunity for release. (Id.). The Missouri Supreme Court summarily denied the

habeas petition on July 03, 2018. (A-1). The present petition for a writ of certiorari

is now before this Court for discretionary review.

6

REASONS FOR GRANTING THE WRIT

I.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER

JUVENILE DEFENDANTS WHO RECEIVED A SENTENCE OF LIFE

WITHOUT PAROLE FOR MURDER MUST RECEIVE ADVERSARIAL

RESENTENCING PROCEEDINGS TO COMPLY WITH THE EIGHTH

AMENDMENT REQUIREMENTS MANDATED BY MILLER AND

MONTGOMERY.

This Court, in a series of recent decisions, has forbidden as unconstitutional

sentences of LWOP for all juveniles except the rare juvenile whose crime reflects

irreparable corruption. Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016)

(quoting Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012)); see also Graham v.

Florida, 560 U.S. 48, 82 (2010). This Court has further held that this substantive

Eighth Amendment rule is retroactive. Id. In these decisions, this Court found that

youthful defendants are constitutionally different from adults for purposes of

sentencing due to three distinctive attributes of youth that mitigate their culpability:

transient immaturity; vulnerability to external forces; and character traits that are

still being formed. Montgomery, 136 S. Ct. at 734.

For these reasons, “not only must ‘a judge or jury…have the opportunity to

consider mitigating circumstances before imposing the harshest penalty for

juveniles,’ but also the sentencer must actually ‘take into account how children are

different, and how those differences counsel against irrevocably sentencing them to

7

a lifetime in prison.’” Malvo v. Mathena, 893 F.3d 265, 271 (4th Cir. 2018)

(quoting Miller v. Alabama, 132 S. Ct. at 476).

The Montgomery decision also held that the “penological justifications for

life without parole collapse in light of the distinctive attributes of youth, rendering

life without parole an unconstitutionally disproportionate punishment as to all but

the rarest of juvenile offenders, whose crimes reflect permanent incorrigibility.”

Id. at 734-735. This Court has also categorically forbidden, under the Eighth

Amendment, LWOP sentences for youth who have committed non-homicide

offenses and LWOP sentences for any youth whose homicide crime reflects

“unfortunate yet transient immaturity.” Id. at 734 (quoting Miller, 132 S. Ct. at

2465).

These cases establish that only in a “rare case” of “irreparable corruption”

will a LWOP sentence be constitutionally permissible for a juvenile. This series of

Eighth Amendment cases defines LWOP as a sentence of life imprisonment that

denies a juvenile a meaningful and realistic opportunity for release based upon

demonstrated maturity and rehabilitation. Miller, 132 S. Ct. at 2469.

These

decisions establish that the Eighth Amendment forbids a statutory scheme that

imposes life sentences upon minors without appropriate consideration of their

distinctive attributes based upon their youth and further fails to provide them a

meaningful and realistic opportunity for release. Missouri law, as modified by S.B.

8

590 in response to the Miller decision, which was explicitly and implicitly

endorsed as a constitutionally adequate remedy by all the previous decisions of

Missouri Supreme Court below, in this case, fails this constitutional test in both

respects.

The decision in Miller made it clear that the Eighth Amendment requires

resentencings to follow a certain process, considering an offender’s youth and

attendant characteristics, in assessing the appropriate penalty. In Montgomery, this

Court clarified the substantive factors that Miller would require before a sentence

of LWOP could be constitutionally imposed upon a juvenile convicted of murder.

Montgomery made it clear that the Eighth Amendment precludes LWOP for

juvenile offenders whose crimes reflect the transient immaturity of youth.

Montgomery, 136 S. Ct. at 734. In addition, the court in Montgomery also clarified

the fact that a LWOP sentence would be unconstitutional except in a very rare case

where the circumstances of the crime indicate “irreparable corruption.” Id. at 734735.

Both Miller and Montgomery clearly require that all juveniles in this country

who are currently serving mandatory sentences of LWOP, like petitioner and the

approximately eighty other men and women serving such sentences in the State of

Missouri, receive an adversarial resentencing procedure with the assistance of

counsel and the attendant constitutional rights that a trial requires, so that the

9

sentencer can impose a constitutional sentence that provides the juvenile with a

meaningful opportunity for future release in all but the most extraordinary and

aggravated homicide cases. Miller, 132 S. Ct. at 2469-2470, 2475.

This interpretation of Miller’s and Montgomery’s substantive Eighth

Amendment requirements is further bolstered by this Court’s per curium opinion in

Adams v. Alabama, 136 S. Ct. 1796 (2016). After remanding the case for a new

sentencing hearing for an Alabama juvenile sentenced to LWOP, two separate

concurring opinions were issued in Adams that clarifies the scope of the

substantive constitutional requirements of Miller and Montgomery. Id.

Justice Alito, joined by Justice Thomas, noted that:

“As a result of

Montgomery and Miller, states must now ensure that prisoners serving sentences of

life without parole for offenses committed before the age of eighteen have the

benefit of an individualized sentencing procedure that considers their youth and

immaturity at the time of the offense.” Id. at 1797 (Alito, J., concurring). Justice

Sotomayor’s opinion, joined by Justice Ginsburg, noted that Miller, in addition to

imposing an individualized sentencing requirement, also imposed a substantive

rule that LWOP is only appropriate in the rare case where the juvenile defendant’s

crime reflects irreparable corruption. Justice Sotomayor also noted that such a

sentence would violate the Eighth Amendment for a minor whose crime reflects

“unfortunate yet transient immaturity.” Id. at 1799-1800. As a result, Justice

10

Sotomayor noted that Miller and Montgomery require sentencers to determine

whether the petitioner’s crimes reflected transient immaturity or irreparable

corruption. Id. at 1800.

This interpretation of Miller and Montgomery is further supported by this

Court’s decision in Tatum v. Arizona, 137 S. Ct. 11 (2016). In Tatum, this Court

granted, vacated, and remanded a handful of Arizona juvenile LWOP cases for

resentencing in light of Montgomery. Id. This Court took this course of action

despite the fact that, in the aftermath of the Miller decision, resentencing

proceedings were conducted in each of these cases in which the sentencing courts

considered the juvenile’s age and other attributes as mitigating factors. Id. at 12.

Despite this fact, Justice Sotomayor reiterated that resentencing was

necessary because Montgomery and Miller require sentencing courts to consider

whether the juvenile in question is a rare offender whose crimes reflect “permanent

incorrigibility” or “irretrievable depravity” such that rehabilitation is impossible

and LWOP is justified. Id. (Sotomayor, J., concurring). As a result, this Court

held that the Eighth Amendment requires that a sentencer determine whether “the

juvenile offender before it is a child whose crimes reflect transient immaturity or is

one of those rare children whose crimes reflect irreparable corruption for whom a

life without parole sentence may be appropriate.” Id. at 13. Missouri’s judicial

11

and legislative response to Miller and Montgomery does not come close to

fulfilling this constitutional requirement.

In initially crafting and later ratifying the same legislative remedy embodied

in S.B. 590 in response to Miller, the Missouri Supreme Court improperly took a

single passage of dicta from Montgomery out of context and also clearly

misinterpreted the State of Wyoming’s statutory response to Miller to support its

view that a resentencing proceeding is not constitutionally required by Miller. The

Wyoming statute, cited by this Court in Montgomery, unlike the current Missouri

law, did not eliminate resentencing of juveniles in that state. After this statutory

amendment passed, the Wyoming Supreme Court held that remands for

individualized resentencing proceedings were still constitutionally required by

Miller. Sen v. State, 301 P.3d 106, 125-127 & n.4 (Wyo. 2014).

It appears that Missouri is the only state that does not require its juveniles,

who previously received and continue to serve unconstitutional mandatory LWOP

sentences, receive resentencing hearings before the trial court. Thus, the fact that

petitioner’s mandatory sentence of LWOP obviously remains undisturbed

establishes that he is still serving an unconstitutional sentence. In the aftermath of

Miller and Montgomery, other jurisdictions have recognized that the Eighth

Amendment requires a resentencing proceeding be held at which the sentencer is

precluded from imposing an LWOP sentence unless a finding is made that the

12

juvenile defendant is irreparably corrupt or permanently incorrigible. Veal v. State,

784 S.E.2d 403, 411-412 (Ga. 2016).

In addressing a similar issue regarding Pennsylvania’s sentencing and parole

laws involving juveniles who had received sentences of LWOP, a federal district

court in Pennsylvania, in two decisions issued on the same day, held that

Pennsylvania’s refusal to order individualized resentencing proceedings by

“passing the buck” to the parole board does not comport with the Miller and

Montgomery decisions. Garnett v. Wetzel, No. 13-3439, 2016 WL 4379244 (E.D.

Pa. Aug. 17, 2016); Songster v. Beard, 201 F.Supp.3d 639 (E.D. Pa. 2016). The

following passage from Judge Savage’s opinion in Songster aptly describes the

similar situation confronting this Court in this case:

A sentencing practice that results in every juvenile’s sentence with a

maximum term of life…does not reflect individualized sentencing.

Placing the decision with the parole board, with its limited resources

and lack of sentencing expertise, is not a substitute for a judicially

imposed sentence. Passing off the ultimate decision to the parole

board in every case reflects an abdication of judicial responsibility and

ignores the Miller mandate…Fixing the maximum sentence at life

permits the parole board to deny parole, effectively working to

imprison the defendant for the duration of his life. As long as the

parole board has the authority to refuse to grant parole, life without

parole remains a possibility regardless of the individual’s peculiar

situation.

Id. at *7.

The Fourth Circuit reached a similar conclusion regarding juveniles

sentenced to mandatory terms of LWOP without the benefit of individualized

13

sentencing. The court vacated four LWOP sentences of one of the well-known

“D.C. Snipers” holding that resentencing was required to determine “(1) whether

[the offender] qualifies as one of the rare juvenile offenders who may, consistent

with the Eight Amendment, be sentenced to life without the possibility of parole

because of his ‘crimes reflect permanent incorrigibility’ or (2) whether those

crimes instead ‘reflect the transient immaturity of youth,’ in which case he must

receive a sentence short of life imprisonment without the possibility of parole.”

Malvo v. Mathena, 893 F.3d 265, 267 (4th Cir. 2018). The court further held that

under Miller a prerequisite to imposing a LWOP sentence for a juvenile offender

was a finding by the trier of fact of irreparable corruption or permanent

incorrigibility and consideration of youth and attendant circumstances. Id. at 275.

The court found that the failure to do so resulted in a failure to satisfy the

requirements of the Eighth Amendment and mandated that the offender be

resentenced. Id.

Based on the foregoing requirements of Miller and Montgomery, the

Missouri Supreme Court’s ruling that the procedures and provisions of S.B. 590,

which give Missouri juvenile offenders the chance to petition for parole from their

mandatory life without parole sentences only after twenty-five years, does not

comport with Eighth Amendment standards which require individualized

resentencing procedures. Although S.B. 590 requires the Board of Probation and

14

Parole to consider youth and the circumstances of the crime in considering whether

juveniles serving life without parole sentences can be paroled, it does not impose

any substantive requirements that these offenders must receive a path to freedom if

the crime was based upon transient immaturity or where the defendant is not

irreparably incorrigible.

II.

CERTIORARI SHOULD BE GRANTED TO DETERMINE WHETHER

MISSOURI’S CURRENT PAROLE LAWS VIOLATE THE EIGHTH

AMENDMENT BY FAILING TO PROVIDE JUVENILES CONVICTED OF

MURDER AND SENTENCED TO LIFE WITHOUT PAROLE A

MEANINGFUL AND REALISTIC OPPORTUNITY FOR RELEASE.

Apart from guaranteeing individualized sentencing and resentencing

procedures for juveniles, the Miller line of cases also hold that the Eighth

Amendment requires that juveniles convicted of crimes must be afforded a

meaningful opportunity to obtain release. Miller, 132 S. Ct. at 2475. This Court

did not fully provide a definition of “meaningful opportunity” in this context and

instead left it to the states to comply with this constitutional requirement. Graham,

560 U.S. at 75. However, this Court has made it clear that, for a juvenile to receive

a meaningful opportunity for release, this opportunity must also be realistic. Id. at

82.

The requirement that juvenile offenders be given a meaningful opportunity

for release based upon a demonstration of maturity and rehabilitation has been

15

recognized by numerous courts around the country. See Greiman v. Hodges, 79

F.Supp.3d 933, 943-44 (S.D. Iowa 2015) (denying motion to dismiss claim that

parole review procedures were not compliant with Graham where plaintiff alleged

that the parole board “failed to take account of plaintiff’s youth and demonstrated

maturity and rehabilitation” and relied solely on the “seriousness of the offense in

denying parole”); Maryland Restorative Justice Initiative v. Hogan, No. ELH-161021, 2017 WL 467731, at *27 (D. Md. Feb. 03, 2017) (denying motion to dismiss

because plaintiffs sufficiently alleged that Maryland’s parole system provided only

“remote,” rather than “meaningful” and “realistic,” opportunities for release,

including by “den[ying] parole due to the nature of their offense or their status as

lifers”); Hayden v. Keller, 134 F.Supp.3d 1000, 1009 (E.D. N.C. 2015) (denying

defendants’ motion for summary judgment and granting plaintiff’s motion for

summary judgment in part after finding that the North Carolina parole system

failed to provide a meaningful opportunity for parole because the commissioners

and case analysts did not “distinguish parole reviews for juvenile offenders from

adult offenders, and thus fail[ed] to consider ‘children’s diminished culpability and

heightened capacity for change’”) (citing Miller, 567 U.S. 479); Wershe v. Combs,

No. 12-1375, 2016 WL 1253036, at **3-4 (W.D. Mich. Mar. 31, 2016) (finding

the reasoning in Greiman, Maryland Restorative Justice, and Hayden “persuasive,”

and noting that the Supreme “Court’s discussion of a meaningful opportunity to

16

obtain release…suggests that the decision imposes some requirements after

sentencing as well,” but concluding that the evidence in that case indicated that the

parole board did not consider the plaintiff’s maturity and rehabilitation.).

In Missouri, S.B. 590 requires the parole board to consider the following

factors in determining whether a juvenile offender should be released: “(1) the

nature and circumstances of the offense committed by the defendant; (2) the degree

of the defendant’s culpability in light of his or her age and role in the offense; (3)

the defendant’s age, maturity, intellectual capacity, and mental and emotional

health and development at the time of the offense; (4) the defendant’s background,

including his or her family, home, and community environment; (5) the likelihood

for rehabilitation of the defendant; (6) the extent of the defendant’s participation in

the offense; (7) the effect of familial pressure or peer pressure on the defendant’s

actions; (8) the nature and extent of the defendant’s prior criminal history,

including whether the offense was committed by a person with a prior record of

conviction for murder in the first degree, or one or more serious assaultive criminal

convictions; (9) the effect of characteristics attributable to defendant’s youth on the

defendant’s judgment; and (10) a statement by the victim or the victim’s family

member…” S.B. 590, codified at § 563.033.2. In addition to these youth-related

mitigating factors, the parole board must consider other factors that relate not to

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the person’s youth at the time of the offense, but have to do with circumstances

during the person’s incarceration.

Although S.B. 590 modified Missouri law to require the parole board to

consider several factors mentioned by this Court in the Miller line of cases in

considering juveniles sentenced to LWOP for release, it is clear that Missouri’s

current parole laws, regulations, and procedures do not provide petitioner and those

similarly-situated with any meaningful or realistic opportunity to be released from

prison.

Further, S.B. 590 did not amend or alter any of the other Missouri parole

laws under which the parole board is never required to grant any prisoner parole

regardless of the circumstances, which makes a Missouri prisoner’s parole

entitlement, like the commutation procedure, purely an act of grace. (A-97). The

current Missouri parole statutes and guidelines gives the board unlimited discretion

whether or not to grant an offender parole. See § 217.690.1 RSMo (2010). Based

on the language of this statute, Missouri courts have repeatedly held that because it

creates no justifiable expectation of release, a prisoner has no constitutional right

or protected liberty interest in parole release. See, e.g., State ex rel. Cavallaro v.

Groose, 908 S.W.2d 133, 135 (Mo. banc 1995).

Section 217.690.1.2 does not comport with Miller because parole decisions

are ultimately based solely upon “whether an offender can be released without

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detriment to the community or himself…and if release is in the best interest of

society.” Even the additional factors set forth in S.B. 590 do not require the board

to grant parole even in cases where the circumstances of the crime are not

particularly aggravating and the defendant’s rehabilitative efforts both weigh

heavily in favor of release. (A-97). Because the parole board has unlimited

discretion to deny release to juveniles sentenced to LWOP and there is no

meaningful judicial review permitted of such decisions, resentencing is the only

mechanism to provide petitioner with a meaningful opportunity for release. Lute v.

Mo. Board of Probation and Parole, 218 S.W.3d 431 (Mo. banc 2007).

S.B. 590 also did not alter any of Missouri’s parole regulations concerning

the manner in which parole hearings are conducted. Under Missouri’s current

parole regulations, there is nothing to suggest that the current practice, of giving a

prisoner a short hearing of approximately fifteen minutes in duration before a

single member of the board and two hearing officers, will be changed in any

manner in the foreseeable future. See 14 CSR 80-2.010(5)(A)(1). Petitioner has

no right to counsel at his parole hearing or any ability to call or present witnesses

on his behalf. Id. Instead, Missouri’s parole regulations only allow a prisoner to

have one representative at the parole hearing who can give a statement on his

behalf. Id.

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Parole hearings, although recorded, are considered closed records and

prisoners are denied access to any record of the proceedings, thus preventing them

from seeking any meaningful judicial review of the constitutional adequacy of a

parole hearing in this context. See 14 CSR 80-2.010(5)(F).

In addition, the decisions of the parole board are often arbitrary. A report by

the American Civil Liberties Union found that “one parole board staff member in

Missouri explained to a reporter that some members never read the files at all and

instead based their decision on how the reviewing board member before them

voted.” False Hope: How Parole Systems Fail Youth Serving Extreme Sentences,

American Civil Liberties Union (Nov. 2016). Since parole hearings are not before

all seven board members, but rather one board member and two corrections staff

members, the individual responsible for deciding whether a prisoner will receive

parole may not even be present at the parole hearing.

In denying parole to offenders, adult and juvenile alike, the board almost

always cites to the “circumstances surrounding the offense.” In this way, the

parole determinations for juvenile offenders do not differ from the board’s standard

procedures and customs. In fact, it appears that every single parole denial under

S.B. 590 has focused on the circumstances of the present offense as a reason for

denial. (A-90). Further, Janet Barton, who worked as an operations manager for

the Missouri Board of Probation and Parole for thirty years, has admitted that:

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Their forms would always say the same thing: ‘Release at this time

would depreciate the seriousness of the present offense.’ But that was

‘not always the truth. Sometimes I’d make that crap up. The real

reason [was] we don’t believe in parole for people like you.’

Life Without Parole, THE MARSHALL PROJECT (July 10, 2015).

Yet the circumstances of the offense are not to foreclose a juvenile

offender’s entitlement to release from prison. See Montgomery, 136 S. Ct. at 736

(“The opportunity for release [on parole] will be afforded to those who

demonstrate the truth of Miller’s central intuition – that children who commit even

heinous crimes are capable of change.”).

As indicated above, a petitioner being reviewed by the Missouri Board of

Probation and Parole is only able to have one representative present at the meeting

and there is no record of the proceeding available for review. As a result, the

review process is shrouded in secrecy and review is nearly impossible.

The

problem with this approach is evident in the recent investigation of the conduct of

a board member and a parole analyst. An investigation by the Roderick & Solange

MacArthur Justice Center, and subsequently by the Missouri Department of

Corrections, uncovered several witnesses who recounted incidents of misconduct

by board members, including board members having contests to name song titles

during parole hearings and contests to earn points by saying unusual words and

getting the prisoner to say the word. In response to the investigation, as well as

the advocacy of Mae Quinn of the MacArthur Justice Center, Board Member

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Donald Ruzicka resigned from the board. The other individual implicated in the

misconduct remains employed as a parole analyst.

Upon a review of case precedent in juvenile LWOP cases as well as

concerns regarding the Missouri parole board similar to those described above, the

United States District Court for the Western District of Missouri, in a pending §

1983 action against the parole board, found that the plaintiffs raised colorable

claims of due process and Eighth Amendment violations and denied the

defendants’ motion to dismiss. Brown v. Precythe, 2017 WL 4980872 (W.D. Mo.

10-31-2017). Further, in light of the “serious constitutional issues at stake,” the

court ordered the defendants to produce “(1) recordings of Plaintiffs’ parole

hearings, (2) Plaintiffs’ parole files, including notes and memoranda created by the

Board or parole staff; and (3) information regarding who participated in Plaintiffs’

parole hearings and parole-related decisions, and in what capacity.” Id. at *15. In

doing so, the court held that “[i]nformation concerning the parole hearings, parole

files, and board members involved in parole hearings and decisions for each of the

named plaintiffs is relevant to the question of whether the plaintiffs were afforded

a meaningful opportunity to secure release upon demonstrated maturity and

rehabilitation.” Id. at *14.

While this misconduct is troubling for all prisoners facing the board, it has

even more dire consequences for juvenile offenders who were first denied their

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right to have a jury determination of irreparable incorrigibility and then denied

their right to any opportunity for release for twenty-five years. The conduct of the

board provides further evidence that even after serving twenty-five years parole

hearings fail to provide juvenile offenders with a meaningful opportunity for

release.

Petitioner completed his mandatory twenty-five years of incarceration this

year and, under S.B. 590, became eligible for parole consideration. In preparation

for his parole hearing, petitioner submitted a parole packet with substantial

evidence demonstrating that he had met the Miller factors, in addition to those set

forth by S.B. 590. Petitioner successfully completed his GED on September 10,

1997. He also completed numerous optional mental health, substance abuse, and

positive decision making classes while incarcerated. Petitioner has received no

major conduct violations in over twenty years. Further, petitioner provided the

parole board with a reentry plan, including job prospects, family supports, and a

detailed living plan.

Petitioner’s parole hearing was held on September 07, 2018.

When

petitioner and his mother were escorted to the hearing, the victim’s family had

already had the opportunity to speak with the parole board. Petitioner was not

informed what information was discussed and Missouri does not provide any

procedure by which inmates can obtain a copy of the transcript of the proceedings.

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The prosecutor first spoke for approximately twenty minutes. Petitioner was then

asked to describe the circumstances of his offense to the board. The board then

chronicled petitioner’s prison record, despite petitioner not having any major

conduct violations in over two decades. Petitioner’s mother was only allowed to

speak on petitioner’s behalf for two to three minutes at the end of the hearing. The

hearing lasted approximately an hour to an hour and a half.

At the conclusion of the hearing, petitioner was told that he would receive a

decision in six to eight weeks. On September 18, 2018, eleven days after the

parole hearing, petitioner’s request for parole was denied and petitioner received a

five-year setback. The reason for the denial was that “release at this time would

depreciate the seriousness of the present offense” and “the circumstances

surrounding the offense.”

While S.B. 590 indeed requires the parole board to consider the “nature and

circumstances of the offense committed,” it is clear that the parole board lacked

insight into the reason that the requirement was added in the first place. This

requirement was added in an attempt to comply with Miller’s constitutional

guarantee that juveniles would not be sentenced to LWOP unless the offense

involved “permanent incorrigibility” and was not an offense which reflected

“unfortunate yet transient immaturity.”

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The offense for which petitioner was convicted is not one which

demonstrates the kind of “permanent incorrigibility” envisioned by this Court in

Miller. The facts of this case indicate that petitioner entered the home of the

victim with the purpose of committing a burglary. Petitioner heard the victim enter

the home and petitioner attempted to escape out of a window. When the sixteenyear old petitioner was confronted by the victim, petitioner shot him. It is clear

that the offense for which petitioner is convicted is one which reflects the kind of

transient immaturity of youth considered by this Court in Miller.

The circumstances of petitioner’s parole hearing and the ultimate denial of

his parole is common for juvenile offenders in Missouri. In the last two years, the

board has conducted approximately twenty parole hearings under S.B. 590. (A90). However, at this time, there have been no juvenile offenders released on

parole under S.B. 590.

(Id.)

Only a few of the offenders sentenced to a

mandatory term of life without parole as a juvenile have received parole dates in

the future. For example, Bradley Houston received a parole date in 2020, Edward

Ramsey received a parole date in 2021, and Michael McRoberts received a parole

date in 2022. (Id.) In almost every other case, the board denied parole and gave

the inmate a four or five-year setback. (Id.)

A state’s parole process, like Missouri’s, that does no more than give a

juvenile offender serving a LWOP sentence the possibility of parole or a hope for

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parole violates due process because this Court’s decisions in Graham, Miller, and

Montgomery created a liberty interest in a meaningful and realistic opportunity for

release. See Greiman v. Hodges, 79 F.Supp.3d 933, 944-945 (S.D. Iowa 2015).

When viewed in conjunction with the fact that petitioner and those similarly

situated have also been denied an individualized and adversarial resentencing

procedure before the trial court, Missouri’s current parole system does not comport

with the fundamental requirement of due process, the right to be heard at a

meaningful time and in a meaningful manner. See Matthews v. Eldridge, 424 U.S.

319, 333 (1976).

In addressing a similar problem, the Massachusetts Supreme Court ruled that

Massachusetts’ parole system for considering juvenile defendants for parole was

inadequate to give them a meaningful opportunity for release because the prisoners

had no access to counsel, funds for counsel or expert witnesses, or the opportunity

for judicial review of the parole board’s ruling on their applications for parole.

Diatchenko v. District Attorney, 27 N.E.3d 349, 357-359 (Mass. 2015). The court

held that these additional procedural protections were required to ensure that a

juvenile receives his procedural due process right to a meaningful opportunity to

obtain release required by Graham. Id.

S.B. 590’s revisions to Missouri’s parole laws, because this law was so

hastily and poorly written, are also not clear as to whether a juvenile can petition

26

for release a second time or whether he will ever be considered for parole again if

he is initially denied parole after serving twenty-five years of imprisonment. (A97). S.B. 590, however, makes it clear that juveniles receiving LWOP in the future

would not be eligible to petition for parole a second time, if parole is denied after

twenty-five years have been served, until the juvenile has served thirty-five years.

(Id.). Although a challenge to this aspect of S.B. 590 is not before the Court in this

case, this provision adds further support to petitioner’s argument that this

legislation is inadequate to provide Missouri prisoners a meaningful and realistic

opportunity for release that the Eighth Amendment requires.

The facts of this case and the lack of procedural and substantive safeguards

inherent in Missouri’s current parole system provide this Court with an ideal

opportunity to interpret the constitutional contours of what is required by the

commands of Graham and Miller to provide a juvenile a meaningful and realistic

opportunity for release. This has been a recurring problem in several states that

have spawned and will spawn future litigation on this important constitutional

question. This Court’s discretionary intervention is necessary to provide an answer

to this question and provide uniform guidance to the states on this important issue.

III.

CERTIORARI SHOULD BE GRANTED TO ADDRESS WHETHER THE

SIXTH AMENDMENT REQUIRES THAT A JURY DETERMINE

WHETHER THE CRIMES COMMITTED INVOLVED IRREPARABLE

CORRUPTION AND WHETHER THE CRIMES REFLECTED

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TRANSIENT IMMATURITY BEFORE A SENTENCE OF LIFE WITHOUT

PAROLE CAN BE CONSTITUTIONALLY IMPOSED UPON A JUVENILE

CONVICTED OF MURDER.

As noted above, the Montgomery and Miller decisions set an Eighth

Amendment ceiling on the punishment that may be imposed in the vast majority of

juvenile murder cases. Absent a finding by the sentencer of irreparable corruption,

a juvenile convicted of murder may not be exposed to an LWOP sentence. Miller

and Montgomery also preclude a juvenile from receiving an LWOP sentence unless

the sentencer finds that the murder was not the result of transient immaturity.

Unless both of these threshold findings are made adversely to the youthful

offender, the maximum possible sentence that a juvenile could receive would be a

parole eligible sentence that provides him with a meaningful opportunity for

release based on demonstrated maturity and rehabilitation.

Under the Supreme Court’s Sixth Amendment cases, a judge may not make

a factual finding, such as the “irreparable incorrigibility” finding required by

Montgomery to enhance a juvenile defendant’s sentence to LWOP. See, e.g., Ring

v. Arizona, 536 U.S. 584, 605 (2002); Alleyne v. United States, 570 U.S. 99 (2013);

Williams v. Florida, 242 So.3d 280 (Fla. 2018). Thus, a juvenile sentenced to

LWOP has a Sixth Amendment right to have a jury determine the irreparable

corrigibility factor required by Montgomery to justify the imposition of a LWOP

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sentence.

See Sarah French Russell, Jury Sentencing and Juveniles: Eighth

Amendment Limits and Sixth Amendment Rights, 56 B.C.L. Rev. 553 (2015).

At first blush, petitioner’s argument, that the Sixth Amendment requires jury

findings to support a sentence of LWOP, appears at odds with this Court’s decision

issued thirty years ago in Cabana v. Bullock, 474 U.S. 376 (1986). Cabana

rejected the prisoner’s argument that a jury must make a culpability finding

regarding whether a capital defendant convicted as an accomplice is eligible for a

death sentence under this Court’s prior decision in Enmund v. Florida, 458 U.S.

782 (1982). In reaching this result in Cabana, this Court concluded that Eighth

Amendment limits differ from statutory provisions for Sixth Amendment purposes

and that the Enmund requirements establish no new elements of the crime of

murder that must be found by a jury.

474 U.S at 384-386.

Instead of an

enhancement provision, this Court characterized the Enmund rule as a substantive

limitation on sentencing that need not be found by the jury. Id. at 386.

However, the decision in Cabana did not survive this Court’s recent Sixth

Amendment jurisprudence. Cabana’s holding has been supplanted by the holding

in Ring that whether a fact finding is labeled as a sentencing factor rather than an

element of the offense is irrelevant for Sixth Amendment purposes. Ring, 536 U.S.

at 605.

Instead, the relevant Sixth Amendment inquiry requires the court to

determine whether the law makes a fact essential to allow the imposition of an

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enhanced punishment. In light of the Ring line of cases, it is no longer accurate to

say that a substantive limitation on sentencing need not be found by a jury because

Miller and Montgomery make factual findings of irreparable corruption and the

absence of transient immaturity essential elements to imposition of LWOP upon a

juvenile defendant.

Ring and this Court’s other Sixth Amendment decisions would trigger the

right to jury findings on these issues. This case presents the court with an ideal

opportunity to decide whether Ring has overruled Cabana, thus entitling juvenile

defendants the right to a jury determination on the eligibility factors that would, in

a rare case, permit a sentence of LWOP to be constitutionally imposed under

Miller and Montgomery.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

/s/ Kent E. Gipson

KENT E. GIPSON, Mo. Bar #34524

Law Office of Kent Gipson, LLC

121 East Gregory Blvd.

Kansas City, Missouri 64114

816-363-4400 ● Fax 816-363-4300

kent.gipson@kentgipsonlaw.com

COUNSEL FOR PETITIONER

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