Opposition Brief — Barry C. Garcia, Petitioner v. North Dakota

No. 19-399

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In The

Supreme Court of the United States

-----------------------------------------------------------------BARRY CAESAR GARCIA,

Petitioner,

v.

STATE OF NORTH DAKOTA,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Supreme Court Of North Dakota

-----------------------------------------------------------------BRIEF IN OPPOSITION

-----------------------------------------------------------------BIRCH P. BURDICK

Cass County State’s Attorney

Counsel of Record

211 9th Street S.

Fargo, ND 58103

(701) 241-5850

burdickb@casscountynd.gov

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether a juvenile sentenced to life without the

possibility of parole prior to Miller v. Alabama, 567

U.S. 460 (2012), as a discretionary sentence, must be

afforded the opportunity for a new sentencing hearing

if his sentence is otherwise constitutional.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

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

iii

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

1

REASONS FOR DENYING THE PETITION .......

2

I.

Jurisdiction – Petition is Untimely .............

2

II.

The North Dakota Supreme Court’s analysis in Garcia II was rooted in the constitutionality of the sentence, not in finding

Miller and Montgomery applied only to

Mandatory Sentencing Schemes .................

4

CONCLUSION .......................................................

9

iii

TABLE OF AUTHORITIES

Page

CASES

Bowles v. Russell,

551 U.S. 205 (2007) ...................................................4

Commonwealth v. Batts,

163 A.3d 410 (Pa. 2017) ............................................8

Garcia v. State,

903 N.W.2d 503 (N.D. 2017) ...................... 2, 3, 4, 5, 7

Garcia v. State,

925 N.W.2d 442 (N.D. 2019) .......................... 2, 3, 4, 8

Graham v. Florida,

560 U.S. 48 (2010) .....................................................3

Landrum v. State,

192 So.3d 459 (Fla. 2016) ..........................................8

Luna v. State,

387 P.3d 956 (Okla.Crim.App. 2016) ........................8

Miller v. Alabama,

567 U.S. 460 (2012) ......................................... passim

Montgomery v. Louisiana,

136 S.Ct. 718 (2016) ........................................ passim

People v. Gutierrez,

324 P.3d 245 (Cal. 2014)............................................8

Roper v. Simmons,

543 U.S. 551 (2005) ............................................... 1, 3

State v. James,

786 S.E.2d 73 (N.C.Ct.App. 2016) .............................8

State v. Shipton,

931 N.W.2d 220 (N.D. 2019) ......................................4

iv

TABLE OF AUTHORITIES – Continued

Page

STATUTES

28 U.S.C. §2101 .............................................................3

N.D.C.C. §12.1-32-01 .....................................................1

N.D.C.C. §12.1-32-13.1 ..................................................3

RULES

U.S. Supreme Court Rule 13 .................................... 3, 4

1

STATEMENT OF THE CASE

The State concurs with Petitioner’s Statement of

the Case, with the following clarifications, corrections,

and additions:

•

The time difference between Petitioner’s sentence in 1996 and this Court’s ruling in Roper

v. Simmons, 543 U.S. 551 (2005) was nine

years, not sixteen. Pet. 2.

•

Petitioner states neither party offered documentary evidence at sentencing. Pet. 3. While

perhaps not inaccurate, the sentencing court

reviewed several documents prior to sentencing including a presentence investigation report, the charging document, police reports,

Petitioner’s statement shortly after his arrest,

a report from the State Hospital, and victim

impact statements. Pet. App. 33a-34a.

•

Petitioner quotes the North Dakota Supreme

Court as describing the holding in Miller v. Alabama, 567 U.S. 460 (2012), being limited to

mandatory sentences of life in prison without

the possibility of parole. Pet. 6-7. As more fully

addressed below, Petitioner uses that single

sentence in isolation, and thereby misconstrues

the North Dakota Supreme Court’s fulsome

analysis, which applied the law from Miller to

Petitioner’s situation.

•

North Dakota law at the time of Petitioner’s

sentence provided that the maximum possible

sentence for murder was life in prison without

parole. It was a discretionary sentence. It remains so today. N.D.C.C. §12.1-32-01(1).

2

•

In its 2017 opinion, the North Dakota Supreme Court affirmed the district court’s denial of post-conviction relief for Petitioner.

Garcia v. State, 2017 ND 263, ¶33, 903 N.W.2d

503 (referred to here as “Garcia I”). Pet. App.

15a-44a. It did not remand anything to the

district court. Pet. App. 43a. In its 2019 opinion, the North Dakota Supreme Court noted

its 2017 decision did not remand anything to

the district court. Garcia v. State, 2019 ND

103, ¶4, 925 N.W.2d 442 (referred to here as

“Garcia II”). Pet. 4a.

------------------------------------------------------------------

REASONS FOR DENYING THE PETITION

I.

Jurisdiction – Petition is Untimely

The Petitioner’s section entitled “Opinions Below”

refers to Garcia I and Garcia II. Pet. 1. The Petition describes Garcia I as “the initial denial of post-conviction

relief.” Pet. 1. The North Dakota Supreme Court entered judgment in Garcia I on November 16, 2017 and

denied a petition for rehearing on December 7, 2017.

The Petitioner’s section entitled “Jurisdiction” does not

refer to Garcia I, but rather Garcia II. The North Dakota Supreme Court entered judgment on Garcia II on

April 11, 2019, denied a petition for rehearing on May

16, 2019, and entered a corrected opinion on May 24,

2019. Pet. 1. Although Petitioner claims timely jurisdiction through Garcia II, Respondent asserts the Petition is not based upon Garcia II, but rather Garcia I.

3

The opinion in Garcia I includes an extended analysis of Roper, Graham v. Florida, 560 U.S. 48 (2010),

Miller, and Montgomery v. Louisiana, 136 S.Ct. 718

(2016). The Petitioner’s entire argument is centered on

the analysis and opinion rendered in Garcia I. The

North Dakota Supreme Court affirmed the lower

court’s ruling denying post-conviction relief. Pet. App.

43a. It did not remand anything to the lower court. Pet.

App. 41a-43a. The opinion in Garcia II confirmed that

Garcia I did not remand anything to the lower court.

Pet. App. 4a.

The opinion in Garcia II dealt with the applicability to Petitioner of a recently enacted statute, N.D.C.C.

§12.1-32-13.1. The statute established a protocol for

considering the factors set forth in Miller and Montgomery to juvenile offenders. Garcia II was not an

analysis of Petitioner’s crime, personal circumstances,

and sentencing considerations relative to the guidance

provided in Miller and Montgomery. Instead, Garcia II

was limited to interpreting the retroactivity of the statutory language under North Dakota law. Pet. App. 1a11a. The opinion affirmed the lower court’s denial of

the statute to Petitioner’s circumstances. The Petition’s only reference to the statute is contained within

the Statement of the Case. Pet. 6. Petitioner makes no

reference to it within his argument in support of his

Petition.

The time limit for seeking certiorari on civil cases

is established by statute, although also referred to in

rule, and on criminal cases is established by rule. 28

U.S.C. §§2101(c) and (d); U.S. Supreme Court Rule 13(1).

4

In North Dakota, petitions for post-conviction relief

are considered civil in nature. State v. Shipton, 2019

ND 188, ¶4, 931 N.W.2d 220. Whether a case for postconviction relief is considered criminal or civil in nature, the related petition for writ of certiorari from a

state case shall be taken within ninety days of entry of

judgment. Petitioner’s claim that his Petition relates to

Garcia II is not accurate. The Petition relates solely to

Garcia I. The judgment in Garcia I was entered on November 16, 2017. The ninety-day window for filing a

petition for a writ of certiorari on Garcia I expired on

or about February 14, 2018. The Petition in this matter

was not filed until mid-2019. It appears the Petition

is jurisdictionally untimely. Bowles v. Russell, 551 U.S.

205, 212-13 (2007) (statute-based filing period for

civil cases is jurisdictional); Supreme Court Rule 13(2)

(“The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time.”).

II.

The North Dakota Supreme Court’s analysis in Garcia II was rooted in the constitutionality of the sentence, not in finding

Miller and Montgomery applied only to

Mandatory Sentencing Schemes.

The Petition alleges two questions: whether Miller’s holding is limited to mandatory sentences, and

whether the state, for a juvenile sentenced to life without the possibility of parole prior to Miller, must determine if the juvenile’s sentence was constitutional or

otherwise provide an opportunity for parole consideration. The State asserts those two questions may be

5

simplified to deciding whether that juvenile must always be provided a new sentencing hearing or alternatively granted an opportunity for parole. This issue

does not warrant this Court’s review.

Petitioner’s primary argument is that courts are

divided on whether Miller applies to discretionary sentencing schemes. Pet. 8. He further argues North Dakota joined the minority of jurisdictions applying

Miller’s and Montgomery’s holdings solely to mandatory sentencing schemes. That claim is not an accurate

summary of Garcia I. It is true Garcia I mentions that

Miller is limited to mandatory sentencing schemes.

Pet. App. 30a. It is similarly true that this Court, in

multiple references within Montgomery, describes Miller’s holding as relating to mandatory life without parole sentences. Montgomery, 136 S.Ct. at 726, 732, 733.

The error arises in presuming such language, taken in

isolation, is the end of the inquiry as to the meaning of

Miller and Montgomery. That is not the broader holding in those cases, nor is it the broader analysis reflected in Garcia I. The dichotomy between mandatory

and discretionary sentencing schemes was neither the

focus of Garcia I nor the basis for denying Petitioner

post-conviction relief.

Immediately following the reference to the mandatory nature of the sentence addressed in Miller,

the North Dakota Supreme Court wrote: “The Court’s

broader rationale applies to all cases where juvenile

offenders are sentenced to life without the possibility

of parole. . . .” Pet. App. 30a. Quoting from Montgomery

the court wrote: “Even if a court considers a child’s age

6

before sentencing him or her to a lifetime in prison,

that sentence still violates the Eighth Amendment for

a child whose crime reflects ‘unfortunate yet transient

immaturity.’ ” Pet. App. 30a. The court further wrote:

“we understand the touchstone for Eighth Amendment

proportionality analysis is that consideration of whether

a juvenile’s crimes reflect ‘transient immaturity’ rather

than ‘irreparable corruption’ is required even when a

sentence of life without parole is imposed as a matter

of the sentencing court’s discretion.” Pet. App. 31a. After noting Petitioner received an individualized sentencing hearing, the court wrote:

“[Petitioner] was sentenced before Miller and

Montgomery were decided, and the district

court lacked the specific articulation that it

was to distinguish between those whose crimes

reflect ‘permanent incorrigibility’ or ‘irreparable corruption’ as opposed to ‘transient immaturity.’ We read these not as magic words

without which a sentence cannot pass muster

under the Eighth Amendment, but, instead,

we review the district court’s sentencing hearing to determine whether it met the substantive requirements of Miller and Montgomery

in its consideration of youth and its attendant

circumstances. Without that substantive compliance, Garcia’s sentence of life imprisonment

without parole would have been imposed in

violation of the Eighth Amendment.” Pet. App.

31a-32a.

The court then reviewed Petitioner’s sentencing hearing. Pet. App. 32a-39a. It found, among other

7

things, the district court considered Petitioner’s age,

the circumstances of his offense, his prior criminal history, recognized that children are different than adults

and more capable of rehabilitation, stated that young

people are never beyond redemption and are capable

of changing and reforming their lives. The district

court also considered the violent circumstances of the

murder, absence of justification for his conduct, his

criminal history showing a pattern of increasing violence and probation violations. Upon doing so it concluded: “Without using the precise words the Supreme

Court used in Miller, the court found Garcia to be the

rare juvenile offender whose crime reflected irreparable corruption and not transient immaturity.” Pet. App.

39a.

In contrast to Petitioner’s claims, all that can

rightly be said about Garcia I is the North Dakota Supreme Court found that a proper individualized analysis

in a discretionary sentencing scheme met the constitutionally-based requirements of Miller and Montgomery. If a sentence meets those requirements, it is not

necessary to provide a new hearing for a juvenile sentenced to life imprisonment without parole. It is not

necessary to grant Petitioner a new sentencing hearing

or the opportunity for parole.

Petitioner argues there is a “deep divide” among

the states about mandating a resentencing hearing

in every pre-Miller case, yet he refers to only a handful

of states in footnote 3. Pet. 13. In reviewing several

of those citations it appears they do not stand for

the proposition for which Petitioner offers them. For

8

example, Luna v. State, 387 P.3d 956, ¶¶20-21

(Okla.Crim.App. 2016) (held juvenile should be resentenced because the jury failed to properly consider the

requirements of Miller and Montgomery); People v.

Gutierrez, 324 P.3d 245, 249-50 (Cal. 2014) (juvenile

must be resentenced because prior to Miller the sentencing statute was construed to create a presumption

of life without parole as the appropriate penalty); Commonwealth v. Batts, 163 A.3d 410, 435-39 (Pa. 2017)

(sentence did not meet the Miller and Montgomery requirements); Landrum v. State, 192 So.3d 459, 469-70

(Fla. 2016) (juvenile was not given the individualized

consideration of her youth and other requirements of

Miller and Montgomery); State v. James, 786 S.E.2d 73,

83-84 (N.C.Ct.App. 2016) (court made insufficient findings). The Respondent asserts this does not warrant

this Court’s review.

As discussed above, the Petition makes no arguments about the new statute addressed in Garcia II.

------------------------------------------------------------------

9

CONCLUSION

For the foregoing reasons, the Petition for a Writ

of Certiorari should be denied.

Respectfully submitted,

BIRCH P. BURDICK

Cass County State’s Attorney

Counsel of Record

211 9th Street S.

Fargo, ND 58103

(701) 241-5850

burdickb@casscountynd.gov

Counsel for Respondent

January 2020