Petition for Writ of Certiorari — Austin Myers, Petitioner v. Ohio

Supreme Court briefNov 10, 2021

Ask Donna

What actually matters in this document.

Text

CASE NO. _________________

IN THE SUPREME COURT OF THE UNITED STATES

___________________________________________

AUSTIN MYERS, Petitioner,

vs.

STATE OF OHIO, Respondent.

___________________________________________

On Petition for a Writ of Certiorari

to the Supreme Court of Ohio

___________________________________________

PETITION FOR A WRIT OF CERTIORARI

(CAPITAL CASE: NO EXECUTION DATE SET)

Timothy F. Sweeney (OH 0040027)*

MEMBER OF THE BAR OF THIS COURT

LAW OFFICE OF TIMOTHY FARRELL SWEENEY

The 820 Building, Suite 430

820 West Superior Ave.

Cleveland, Ohio 44113-1800

Phone: (216) 241-5003

Email: tim@timsweeneylaw.com

John P. Parker (OH 0041243)

MEMBER OF THE BAR OF THIS COURT

Attorney at Law

988 East 185th Street

Cleveland, Ohio 44119

Phone: (216) 881-0900

Email: advocateparker@gmail.com

*COUNSEL OF RECORD

Counsel for Petitioner Austin Myers

QUESTIONS PRESENTED

CAPITAL CASE: NO CURRENT EXECUTION DATE

Do the Ohio state courts deny a death-sentenced postconviction petitioner’s rights to due

process, access to the Ohio courts, and an adequate corrective process when those courts enforce

an unreasonable and improperly-restrictive definition of “good cause” and fail to allow petitioner

to conduct necessary discovery on the vast majority of his grounds for relief––including on all

grounds challenging the deficient performance of his trial counsel in the guilt-innocence phase of

his capital trial––before summarily dismissing those grounds without a hearing?

II.

Is the infliction of the death penalty on a person who was nineteen years old at the time of

the offense, and was not the actual killer of the single victim of the subject crime, cruel and unusual

punishment, and thus barred by the Eighth and Fourteenth Amendments?

DIRECTLY RELATED CASES

State v. Myers, Case No. 2021-0390 (Supreme Court of Ohio), order of denial of

discretionary appeal entered on August 17, 2021

State v. Myers, Case No. CA2019-07-074 (Ohio Court of Appeals, 12th App. Dist.),

judgment and opinion affirming in part and reversing in part denial of petition for

postconviction relief entered March 8, 2021

Myers v. Ohio, Case No. 18-6532 (U.S. Supreme Court), certiorari denied on

January 7, 2019, in direct appeal

State v. Myers, No. 2014-1862 (Supreme Court of Ohio), judgment and opinion

affirming, on direct appeal, conviction and death sentence entered May 17, 2018

State v. Myers, Case No. 14-CR-29826 (Court of Common Pleas, Warren County, Ohio),

judgment of death sentence & sentencing opinion, and sentences to other counts, entered

October 16-17, 2014, and judgment of denial of post-conviction petition entered June 27,

2019

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................i

DIRECTLY RELATED CASES .................................................................................................... ii

TABLE OF CONTENTS .............................................................................................................. iii

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

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

OPINIONS BELOW ....................................................................................................................... 1

JURISDICTION .............................................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................... 2

STATEMENT OF THE CASE ....................................................................................................... 3

A. Trial court proceedings in postconviction. ............................................................................. 3

B. Appellate court proceedings in postconviction. ...................................................................... 4

C. Proceedings in the Supreme Court of Ohio in postconviction. ............................................... 6

STATEMENT OF THE FACTS ..................................................................................................... 7

REASONS FOR GRANTING THE WRIT .................................................................................. 10

I. The lower Ohio courts deny a death-sentenced postconviction petitioner’s rights to due

process, access to the Ohio courts, and an adequate corrective process when the courts

enforce an unreasonable and improperly-restrictive definition of “good cause” and fail to

allow petitioner to conduct necessary discovery on the vast majority of his grounds for

relief before summarily dismissing those grounds without a hearing. U.S. Const. Amends.

V, VIII, XIV. ............................................................................................................................. 10

II. Certiorari should be granted because the execution of an offender who committed

his offense while still a teenager constitutes cruel and unusual punishment, and

especially when the teenager was not the actual killer of the victim of the subject

homicide offense........................................................................................................................ 14

A. Youth is a Condition Defined by Specific Characteristics. .............................................. 15

B. Age 18 is “a Conservative Estimate of the Dividing Line Between

Adolescence and Adulthood.” ............................................................................................... 17

iii

C. There is a Consensus that Persons Under 21 at the Time of Their Offense

Do Not Possess the Requisite Level of Culpability Necessary for the Government

to Impose a Death Sentence Upon Them. ............................................................................. 20

D. There are increasing objective indications––in dramatically reduced use of the death

penalty, in other sentencing practices, and in evolving case law––which reflect today’s

societal consensus that 18-20 year olds are undeserving of the criminal law’s harshest

punishments because the hallmark characteristics of youth make them less morally

culpable than mature adults. .................................................................................................. 22

1. Sentencing practices and data. ....................................................................................... 23

2. Many states have abolished the death penalty altogether or have not used

it in a decade or more. ....................................................................................................... 25

3. Court decisions are increasingly recognizing the diminished moral culpability of

youthful offenders extends to those 18, 19 and 20. ........................................................... 26

E. There is an Unacceptable Risk That the Brutal Nature of a Capital Crime Will Render

the Sentencer Unable to Afford Mitigating Arguments Based on Youth Their Proper

Weight. .................................................................................................................................. 32

F. There are Insufficient Penological Justifications for the Execution of Youthful

Offenders. .............................................................................................................................. 33

G. Drawing the Line at Age 18 Arbitrarily Excludes Those Who Possess All the

Characteristics Deemed Worthy of Protection Under the Categorical Ban. ......................... 34

H. The Line Drawn by Roper is Now Ripe for Reevaluation. .............................................. 36

CONCLUSION ............................................................................................................................. 38

APPENDIX CONTENTS

APPENDIX A

State v. Myers, Case No. 2021-0390, 2021-Ohio-2742, 164 Ohio St. 3d 1403,

172 N.E.3d 167 (2021) ....................................................................................... Appx-0001

APPENDIX B

State v. Myers, Case No. CA2019-07-074, 2021-Ohio-631,

2021 Ohio App. LEXIS 652 (Twelfth Dist. Ohio App. 2021) ........................... Appx-0002

APPENDIX C

Myers v. Ohio, Case No. 18-6532, 139 S. Ct. 822,

202 L. Ed. 2d 599 (U.S. 2019)............................................................................ Appx-0056

APPENDIX D

State v. Myers, Case No. 2014-1862, 2018-Ohio-1903, 154 Ohio St. 3d 405,

114 N.E.3d 1138 (Ohio 2018) ............................................................................ Appx-0057

APPENDIX E

State v. Myers, Case No. 14-CR-29826 (Court of Common Pleas, Warren County,

Ohio), judgment of death sentence & sentencing opinion, and sentences to other

counts, entered October 16-17, 2014 .................................................................. Appx-0117

APPENDIX F

State v. Myers, Case No. 14-CR-29826 (Court of Common Pleas, Warren County,

Ohio), judgment of denial of post-conviction petition entered

June 27, 2019 ...................................................................................................... Appx-0126

APPENDIX G

State v. Myers, Case No. 14-CR-29826 (Court of Common Pleas, Warren County,

Ohio), order denying discovery entered July 3, 2018......................................... Appx-0144

TABLE OF AUTHORITIES

Cases

Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................................ 14, 22, 33

Bracy v. Gramley, 520 U.S. 899 (1997) ........................................................................................ 12

Commonwealth v. Bredhold, 599 S.W.3d 409 (Ky. 2020) ............................................................ 27

Commonwealth v. Bredhold, No. 14-CR-161 (Fayette Co. Aug. 1, 2017).................................... 27

Cruz v. United States, 2017 U.S. Dist. LEXIS 143842 (D. Conn. Apr. 3, 2017),

reconsideration denied (D. Conn. July 12, 2017) ...................................................................... 29

Cruz v. United States, 2018 U.S. Dist. LEXIS 52924 (D. Conn. Mar. 29, 2018) ............. 18, 28, 29

Cruz v. United States, 826 Fed. Appx. 49 (2d Cir. 2020).............................................................. 29

Eddings v. Oklahoma, 455 U.S. 104 (1982) ............................................................................ 15, 34

Enmund v. Florida, 458 U.S. 782 (1982) ...................................................................................... 22

Furman v. Georgia, 408 U.S. 238 (1972) ..................................................................................... 14

Glossip v. Gross, 576 U.S. 863 (2015) .......................................................................................... 26

Goldberg v. Kelly, 397 U.S. 254 (1970) ........................................................................................ 13

Graham v. Florida, 560 U.S. 48 (2010) ............................................................ 5, 14, 15, 17, 22, 25

Gregg v. Georgia, 428 U.S. 153 (1976) .................................................................................. 33, 36

Hairston v. State, 472 P.3d 44 (Idaho Sep. 3, 2020) ..................................................................... 31

Hall v. Florida, 572 U.S. 701 (2014) ................................................................................ 25, 34, 37

Hill v. Anderson, 2010 U.S. Dist. LEXIS 132468 (N.D. Ohio Dec. 14, 2010) ............................. 13

In re Lambert, 2018 U.S. App. LEXIS 25332 (6th Cir. Sep. 5, 2018) .......................................... 30

In re Pers. Restraint of Monschke, 197 Wash. 2d 305, 482 P.3d 276 (2021) ......................... 27, 35

In re Phillips, 2017 U.S. App. LEXIS 17766 (6th Cir. July 20, 2017) ......................................... 31

In re Stanford, 537 U.S. 968, 971 (2002) ................................................................................ 17, 37

Johnson v. Bobby, 2010 U.S. Dist. LEXIS 103351 (S.D. Ohio Sep. 30, 2010) ............................ 13

Johnson v. Texas, 509 U.S. 350 (1993) ......................................................................................... 16

Kennedy v. Louisiana, 554 U.S. 407 (2008) ...................................................................... 14, 22, 23

Miller v. Alabama, 567 U.S. 460 (2012) ................................................... 17, 19, 20, 22, 27, 28, 29

Monroe v. Warden, 2012 U.S. Dist. LEXIS 135535 (S.D. Ohio Sep. 21, 2012) .......................... 13

Montgomery v. Louisiana, 577 U.S. 190 (2016) ........................................................................... 33

Myers v. Ohio, 139 S. Ct. 822, 202 L. Ed. 2d 599 (U.S. 2019) ....................................................... 1

Nelson v. State, 947 N.W.2d 31 (Minn. 2020) ........................................................................ 22, 31

Obergefell v. Hodges, 576 U.S. 644 (2015) .................................................................................. 32

Penry v. Lynaugh, 492 U.S. 302 (1989) ........................................................................................ 36

People v. House, 2019 436 Ill. Dec. 355, 142 N.E.3d 756 (Ill. App. 2019) .................................. 28

People v. House, 72 N.E.3d 357 (Ill. App. Dec. 24, 2015) ........................................................... 18

People v. Rodriguez, 2021 IL App (1st) 190983-U, 2021 Ill. App. Unpub. LEXIS 199

(Feb. 10, 2021)........................................................................................................................... 28

Pike v. Gross, 936 F.3d 372 (6th Cir. Aug. 22, 2019) ................................................................... 31

Roper v. Simmons, 543 U.S. 551 (2005) ............................................................................5, passim

Stanford v. Kentucky, 492 U.S. 361 (1989) ................................................................................... 36

State v. Graham, 2020-Ohio-6700 (Dec. 17, 2020) .................................................................... 3, 5

State v. Gregory, 192 Wash. 2d 1, 427 P.3d 621 (2018) ............................................................... 26

State v. Kapper, 5 Ohio St. 3d 36 (1983) ...................................................................................... 13

State v. Myers, 154 Ohio St. 3d 405, 2018-Ohio-1903 (May 17, 2018) ....................................... 33

State v. Myers, 2018-Ohio-1903, 154 Ohio St. 3d 405 (2018) .................................................... 1, 3

State v. Myers, 2021-Ohio-2742, 164 Ohio St. 3d 1403 (2021) .................................................. 1, 6

State v. Myers, 2021-Ohio-631 (Twelfth App. Dist. March 8, 2021) ................................... 1, 5, 10

vii

State v. Myers, Case No. 14-CR-29826 (Court of Common Pleas,

Warren County, Ohio June 27, 2019) .......................................................................................... 1

State v. O’Dell, 358 P.3d 359 (Wash. 2015) (en banc) ................................................................. 18

Strickland v. Washington, 466 U.S. 668 (1984) ...................................................................... 11, 13

Thompson v. Oklahoma, 487 U.S. 815, 837 (1988) ...................................................................... 36

Trop v. Dulles, 356 U.S. 86 (1958) ............................................................................................... 14

United State v. Cruz, Case No. 3:94-cr-00112-JCH-16, Docket No. 2118

(D. Conn. March 18, 2019)........................................................................................................ 29

United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. May 16, 2011), vacated and

remanded sub nom. United States v. Reingold, 731 F.3d 204 (2d Cir. 2013). .............. 18, 35

United States v. Cruz, 2021 U.S. Dist. LEXIS 68857 (D. Conn. Apr. 9, 2021) ............................ 30

United States v. Diaz, 176 F.3d 52 (2d Cir. 1999) ........................................................................ 28

United States v. Roof, 2021 U.S. App. LEXIS 25525 (4th Cir. Aug. 25, 2021) ........................... 31

United States v. Sherrill, 972 F.3d 752 (6th Cir. 2020) ................................................................. 31

United States v. Sierra, 933 F.3d 95 (2d Cir. 2019) ...................................................................... 29

United States v. Tsarnaev, 968 F.3d 24 (1st Cir. 2020) ................................................................ 31

Weems v. United States, 217 U.S. 349 (1910) ............................................................................... 14

Constitutional Provisions, Rules, and Statutes

U.S. Constitution, Fifth Amendment ......................................................................................... 2, 14

U.S. Constitution, Sixth Amendment .............................................................................................. 2

U.S. Constitution, Eighth Amendment ............................................................................................ 2

U.S. Constitution, Fourteenth Amendment ............................................................................... 2, 13

Other Authorities

John H. Blume, Hannah L. Freedman, Lindsey S. Vann, and Amelia C. Hritz, Death by

Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban Against

Executing Juveniles from Eighteen to Twenty-One,

98 TEXAS L. REV. 921 (2020) .......................................................... 16, 17, 19, 20, 22, 24, 25, 34

viii

Alexandra O. Cohen, et al., When Does a Juvenile Become an Adult? Implications for

Law and Policy, 88 TEMPLE L. REV. 769 (2016) ....................................................................... 19

Death Penalty Information Center (DPIC), Death Sentences in the United States From 1977,

By State and By Year ................................................................................................................ 23

Death Penalty Information Center, States With and Without the Death Penalty .......................... 26

Death Penalty Information Center, States With No Recent Executions........................................ 26

Brian Eschels, Data & the Death Penalty: Exploring the Question of National Consensus

Against Executing Emerging Adults in Conversation with Andrew Michaels’s A Decent

Proposal: Exempting Eighteen-to Twenty-Year-Olds from the Death Penalty,

40 N.Y.U. REV. L. & SOC. CHANGE HARBINGER 147 (2016) .................................................... 24

Kanako Ishida, Young Adults in Conflict with the Law: Opportunities for Diversion, Juvenile

Justice Initiative (Feb. 2015) ..................................................................................................... 18

Andrew Michaels, A Decent Proposal: Exempting Eighteen-to Twenty-Year-Olds from the Death

Penalty, 40 N.Y.U. REV. L. & SOC. CHANGE 139 (2016) .................................................... 24, 25

Seth Miller and Robert Weiner, Report to the House of Delegates, Resolution 111, American

Bar Association Death Penalty Due Process Review Project and Section of Civil Rights

and Social Justice, February 2018 ............................................................................................. 31

Kathryn Monahan et al., Juvenile Justice Policy and Practice: A Developmental Perspective,

44 CRIME & JUST. 577 (2015) .................................................................................................... 19

Note, The Roper Extension: A California Perspective, 71 HASTINGS L.J. 197 (Dec. 2019)......... 24

Ohio Attorney General, Capital Crimes Annual Report for 2015 (April 2016) ............................ 24

Ohio Attorney General, Capital Crimes Annual Report for 2020 (April 1, 2021) ........................ 23

Michael L. Perlin and Alison J. Lynch, Therapeutic Jurisprudence and Family Law: “Some

Mother’s Child Has Gone Astray”: Neuroscientific Approaches to a Therapeutic

Jurisprudence Model of Juvenile Sentencing, 59 FAM. CT. REV. 478 (2021) ........................... 22

Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen to Twenty-Year-Olds Should

Be Exempt from Life Without Parole, 52 U. RICH. L. REV. ONLINE 83 (2018) ......................... 19

Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg, Young Adulthood as a

Transitional Legal Category: Science, Social Change, and Justice Policy,

85 FORDHAM L. REV. 641 (2016) .............................................................................................. 19

Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity,

Diminished Responsibility, and the Juvenile Death Penalty,

58 AM. PSYCHOLOGIST 1009 (2003) .......................................................................................... 16

Twentieth Century Fund Task Force on Sentencing Policy Toward Young Offenders,

Confronting Youth Crime (1978) .............................................................................................. 34

PETITION FOR A WRIT OF CERTIORARI

Petitioner Austin Myers (“Petitioner”) respectfully petitions for a writ of certiorari to

review the judgment of the Supreme Court of Ohio, dated August 17, 2021, in State v. Myers,

2021-Ohio-2742, 164 Ohio St. 3d 1403, 172 N.E.3d 167 (2021).

OPINIONS BELOW

The order of the Supreme Court of Ohio for which Petitioner seeks a writ of certiorari is

reported at State v. Myers, 2021-Ohio-2742, 164 Ohio St. 3d 1403, 172 N.E.3d 167 (2021). (Appx0001.)

The opinion and order of the Ohio Court of Appeals, Twelfth Appellate District, which

affirmed in part and reversed in part the trial court’s dismissal of Petitioner’s petition for

postconviction relief, is reported at State v. Myers, Case No. CA2019-07-074, 2021-Ohio-631,

2021 Ohio App. LEXIS 652 (Twelfth Dist. Ohio App. 2021). (Appx-0002.)

The opinion and order of the state trial court, which dismissed on June 27, 2019, the

Petitioner’s petition for postconviction relief in State v. Myers, Case No. 14-CR-29826 (Court of

Common Pleas, Warren County, Ohio June 27, 2019), is unreported. (Appx-0126.)

This Court’s denial of certiorari of January 7, 2019, as to review of the Supreme Court of

Ohio’s May 17, 2018, decision on direct appeal is reported at Myers v. Ohio, 139 S. Ct. 822, 202

L. Ed. 2d 599 (U.S. 2019). (Appx-0056.)

The Supreme Court of Ohio’s opinion and judgment on direct appeal, issued on May 17,

2018, is reported at State v. Myers, Case No. 2014-1862, 2018-Ohio-1903, 154 Ohio St. 3d 405,

114 N.E.3d 1138 (Ohio 2018). (Appx-0057.)

The trial court’s sentencing opinion of October 16, 2014, and related judgment of October

17, 2014, in which that court sentenced Petitioner to death, are unreported. (Appx-0117.)

JURISDICTION

The Supreme Court of Ohio issued its judgment denying review of the lower Ohio courts’

dismissal of Petitioner’s petition for postconviction relief on August 17, 2021. (Appx-0001.) This

Court has jurisdiction under 28 U.S.C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment, which provides in part:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a grand jury . . . .; nor shall any person

be subject for the same offense to be twice put in jeopardy of life or limb; nor

shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law[.]

The Sixth Amendment, which provides in part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury . . . .; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

The Eighth Amendment, which provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment, which provides in part:

Section 1. All persons born or naturalized in the United States, and subject to

the jurisdiction thereof, are citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor shall any state

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.

STATEMENT OF THE CASE

On October 1, 2014, Petitioner Austin Myers was found guilty by a jury in Warren County,

Ohio of the January 28, 2014, aggravated murder of Justin Back with capital specifications, and

other offenses. (Transcript Trial Phase (“TT”) at 1766-77.) After a very brief mitigation phase on

October 6, 2014 (Transcript Mitigation Phase (“TM”)), the jury recommended a death sentence

(TM at 162-65), and, on October 16, 2014, the trial court imposed that sentence. (Transcript

Sentencing (“TS”) at 20-22.)

At the time of the crime, Petitioner was 19 years and 23 days old. His co-defendant, Tim

Mosley, was also 19-years old. Mosley was the principal offender and actual killer who inflicted

the fatal injuries on the victim; Mosley received a sentence of LWOP. As a result of Petitioner’s

death sentence, he became the youngest person at that time awaiting execution on Ohio’s death

row. (He still is the youngest person because, on December 17, 2020, the Supreme Court of Ohio

vacated the death sentence of Damantae Graham who was, at the time of his 2016 crime, 19 years

and 20 days old. State v. Graham, 2020-Ohio-6700 (Dec. 17, 2020).)

On May 17, 2018, the Supreme Court of Ohio in direct appeal affirmed Petitioner’s

conviction and death sentence. State v. Myers, 2018-Ohio-1903, 154 Ohio St. 3d 405 (2018).

(Appx-0057.) This Court denied certiorari on January 7, 2019. Myers v. Ohio, 139 S. Ct. 822, 202

L. Ed. 2d 599 (2019). (Appx-0056.) Petitioner did not raise in his direct appeal his current claim

that the Eighth and Fourteenth Amendment prohibit the execution of a teenager.

A. Trial court proceedings in postconviction.

Petitioner filed his timely postconviction petition under R.C. 2953.21 (“Petition”) in the

trial court on November 10, 2016. His Petition raised 60 Grounds for Relief and was supported

with five volumes of Exhibits, which included some 32 affidavits and 7 expert reports/affidavits,

plus substantial additional documentary support. (Trial docket no. (“T.d.”) 366, PCR Petition and

T.d. 368-372, PCR Appendix.) In his PCR Petition and in subsequent state-court proceedings in

litigating that petition, Petitioner raised the issues on which he now seeks certiorari in this Court:

(1) his rights to due process, access to the Ohio courts, and to an adequate corrective process bar

the Ohio courts’ summary dismissal, without affording him any discovery or a hearing, of the

constitutional claims which challenge the constitutionally-deficient performance of his trial

counsel in the guilt-innocence phase of his capital case, and (2) the Eighth and Fourteenth

Amendments bar capital punishment against a person who was nineteen years old at the time of

the offense, and especially so when that teenager was not the actual killer of the victim of the

subject homicide offense.

Petitioner sought discovery in the trial court and an evidentiary hearing on many of his

Grounds for Relief in the PCR Petition. (T.d. 401, Supp. Motion for Discovery.) The State opposed

discovery. (T.d. 402, State’s Opp.)

On July 3, 2018, the trial court issued an 11-page order denying Petitioner’s motion for

discovery. (T.d. 408, Order Denying Discovery (Appx-0144).) The trial court denied all discovery;

it did so in relevant part because, in the court’s view, Petitioner had not met the requirement for

“good cause” as the trial court construed that requirement of Ohio’s postconviction statute. (Id. at

5-10 (Appx-0148 to -0153).)

Then, on June 27, 2019, and without having granted a hearing or any discovery, the trial

court issued an order “summarily dismissing” Petitioner’s PCR Petition in its entirety. (T.d. 423,

Dismissal Order of 6/27/19 at 2 (Appx-0126 to -0143).)

B. Appellate court proceedings in postconviction.

Petitioner took a timely appeal to the intermediate Ohio appellate court, in this case the

Twelfth Appellate District. (T.d. 426, Notice of Appeal.) Among the errors Petitioner raised is his

appeal, as relevant here, are:

(1)

The trial court committed reversible error in finding barred by res judicata

and/or otherwise meritless Petitioner’s claims challenging the constitutionality,

propriety, and/or proportionality of a death sentence, under the Ohio and U.S.

Constitutions, for an offender, like Petitioner, who was still a teenager at the

time of his offense.

(2)

The trial court committed reversible error in failing to allow discovery on any

of the 60 Grounds raised in Petitioner’s Petition, including his claims of

ineffective assistance of trial counsel in the guilt-innocence phase.

(3)

The trial court committed reversible error in dismissing all 60 of Petitioner’s

Grounds for Relief without allowing discovery or an evidentiary hearing on any

of them.

The Twelfth Appellate District, on March 8, 2021, affirmed in part, reversed in part, and

remanded. State v. Myers, 2021-Ohio-631, ¶¶ 153-54 (Twelfth App. Dist. March 8, 2021) (Appx0002 to -0055).

The appellate court affirmed the trial court’s dismissal of Petitioner’s categorical

constitutional challenge to the death penalty for teenaged offenders as either barred by res judicata

and/or because, citing Roper v. Simmons, 543 U.S. 551 (2005), this Court has set the age line at

under 18. (Myers, 2021-Ohio-631 at ¶¶ 54-59 (Appx-0020 to -0022); T.d. 423, Dismissal Order of

6/27/19 at 13 (Appx-0138).) The appellate court also cited the Supreme Court of Ohio’s recent

decision in State v. Graham, 2020-Ohio-6700, ¶ 182 (Dec. 17, 2020), where that court rejected a

categorical challenge by a 19-year-old offender under the Eighth Amendment and where the court

said, in reviewing the issue under a plain-error standard: “[B]ecause the United States Supreme

Court has drawn the line at 18 for Eighth Amendment purposes, state courts are not free to invoke

the Eighth Amendment as authority for drawing it at a higher age. . . . Roper is controlling, and

we must follow it.” Graham at ¶ 182 (cited in Myers, 2021-Ohio-631 at ¶ 58 (Appx-0022)).

The appellate court allowed discovery on only three of the 60 Grounds––all pertaining to

the penalty phase––and remanded for such discovery and an evidentiary hearing on only those

three Grounds. Those three Grounds (Grounds 21, 44, and 45) pertain to Petitioner’s claims of

ineffective assistance of trial counsel for failing to present expert testimony at the penalty phase

on the issue of adolescent brain development in conjunction with Petitioner’s young age and

mental health issues.

With the exception of those three Grounds, the appellate court affirmed the trial court’s

dismissal, and denial of discovery and an evidentiary hearing, on all other 57 Grounds in the PCR

Petition.

C. Proceedings in the Supreme Court of Ohio in postconviction.

Petitioner pursued discretionary review in the Supreme Court of Ohio, by filing a

memorandum in support of jurisdiction on April 21, 2021. Among other issues, he raised those

which are pertinent here:

1. The lower Ohio courts deny a death-sentenced postconviction petitioner’s

rights to due process, access to the Ohio courts, and an adequate corrective

process, and violate R.C. § 2953.21(A)(1) and its 2017 discovery

amendments, when the courts enforce an unreasonable and improperlyrestrictive definition of “good cause” and fail to allow petitioner to conduct

necessary discovery on the vast majority of his grounds for relief before

summarily dismissing those grounds without a hearing. U.S. Const.

Amends. V, VIII, XIV; Ohio Const. Art. I, §§ 2, 16; R.C. 2953.21(A)(1);

Ohio R. Civ. P. 56.

2. The prohibition against the infliction of cruel and unusual punishments,

in the Eighth Amendment to the U.S. Constitution, as applied in light of

prevailing standards of decency and modern scientific knowledge, does not

permit a death sentence for an offender who was only 19 years old at the

time of his offense. Such a death sentence violates the U.S. Constitution

and must be set aside. U.S. Const. Amends. V, VI, VIII, XIV.

On August 17, 2021, the Supreme Court of Ohio denied discretionary review. State v.

Myers, 2021-Ohio-2742, 164 Ohio St. 3d 1403 (2021). (Appx-0001.)

STATEMENT OF THE FACTS

Petitioner’s trial counsel did not use a fact investigator even though funds were authorized

by the trial court. See T.d. 372, PCR Appendix Exh. 92. Trial counsel’s statement that he did not

want to “waste county funds” on an investigator is a shocking abandonment of his duty to

Petitioner to fully investigate all facts and circumstances before making whatever strategic

decisions he deemed appropriate.

The prejudice to Petitioner was evident in the exhibits to his postconviction petition (“PCR

Petition”) and was not rebutted by any affidavits or exhibits by the State. In particular, a fact

investigator would have found, if used by trial counsel, the information and facts described below

and in paragraphs 90-91 of the PCR Petition and the exhibits cited. All of this information is

outside the record and none of it was available to show prejudice on direct appeal; the State’s

argument that there is no evidence that counsel themselves did not investigate is specious. The

lack of presentation of this evidence and counsel’s clear statements that no investigator was needed

belies such a strained interpretation of the evidence in the PCR Petition.

Tim Mosley, the testifying co-defendant, provided much damaging testimony against

Petitioner. However, Mosley’s credibility could and should have been impeached by a competent

investigation of his background.

For example, Mosley’s depression and rage leading up to the day in question, his severe

drug addiction and depression, his violent tendencies, his cell phone records which contradict his

testimony, the lack of history/habit of note taking that a good friend (Logan Zennie) could have

testified about, all lead one to understand that Mosley’s credibility was not meaningfully tested by

adequate cross examination or presentation of witnesses. (See T.d. 366, PCR Petition at ¶¶ 90-91

& Exhs. 22, 23A-B, 24, 25, 26, 27, 42, 46, 49, 52, 55, and 90.)

How did this happen? Simply put, there was no adequate investigation by the defense even

though funds were allocated by the trial court for that very purpose.

Instead of diligently investigating the case, Petitioner’s lead trial counsel seemed more

concerned with not “wasting county resources.” What about defending Petitioner? And now more

resources have been and will be spent by the State in attempting to defend a completely inept

defense predicated on no independent fact investigation.

The facts as may be relevant to guilt/innocence, were not investigated by the trial team and

no reasonable strategic decision exists to not investigate them, understand them, and present them

to the jury and trial court. The State has not rebutted the facts contained in these exhibits including

the facts contained in Exhibit 90 (the affidavit of co-defendant Tim Mosley).

What is more, Petitioner is the youngest persons awaiting execution on Ohio’s death row.

He was born on January 4, 1995. Tim Mosley, Petitioner’s co-defendant, was born on October 11,

1994. Therefore, on January 27, 2014, when the charged criminal acts at issue were conceived by

the defendants—resulting, the jury found, in the murder of Justin Back on January 28, 2014—

Petitioner was 19 years and 23 days old, and Mosley was 19 years and 108 days old.

The jury knew virtually nothing about the issue of Petitioner’s youth and

neurodevelopment status, other than the mere fact that he was 19 years old. Petitioner’s trial

counsel presented no expert witnesses, or any evidence, to educate the jury about the modern

scientific studies and professional consensus which hold that a person who is a few weeks passed

his 19th birthday, like Petitioner was at the time of this crime, possesses all the exact same

characteristic deficiencies of youth which caused this Court in 2005 to bar capital punishment for

those under 18.

Those deficiencies are: (1) a lack of maturity, (2) an increased susceptibility to negative

influences and outside pressures including peer pressure, and (3) an unformed or underdeveloped

character. And, because youthful offenders—even those who are 19 and 20 years old—possess all

these inherent and scientifically-recognized deficits, such offenders are not as morally culpable for

serious criminal conduct as are fully-developed adult offenders who are not so burdened.

At the time of the crime and sentence in 2014, Petitioner was “still in the commonly

accepted developmental stage of late adolescence.” (T.d. 371, PCR Appx. Exh. 37, Davis

Aff./Report at pp. 10.) Petitioner was “unfinished” from “a neurodevelopmental standpoint.” (Id.)

He was, because of his young age and development status, “less likely than a fully developed adult

to understand and appreciate fully the long-term consequences of his actions, a finding commonly

seen in the research literature,” he “was more influenced by peers than he would have been if he

were older,” and he was “less able to make fully intelligent and informed decisions about

participating or not in criminal behavior.” (Id. at pp. 31-32.) He was also “much less able to selfregulate or conform his behavior than would be older adults and much less able to resist social and

emotional impulses.” (Id. at pp. 33.)

Nonetheless, and due in part to his trial counsel’s ineffective performance and ignorance

about the current science about the developing adolescent brain, the prosecutor was able to make

false statements to the jury—never corrected—that youth only impacts criminal behavior to the

extent characterized by immaturity, irresponsibility, or recklessness, but is irrelevant to crimes like

aggravated murder which require thought or planning. Those statements are false.

Indeed, the recognition of a categorical ban against capital punishment for youthful

offenders under the age of 18 was made by this Court in a case involving a murder that was as

brutal, pre-meditated, and planned as could be imagined. Roper, 543 U.S. at 556-57. Youthful

offenders are protected from capital punishment not because they are incapable of murders which

require thought and planning, but because, even when they commit such awful crimes, they are

less morally culpable because of the inherent deficits they possess due to their still-developing

teenaged brains. These are the exact deficits Petitioner possessed during all relevant times in

January 2014.

Based on what is known today about neurodevelopmental status in mid- and lateadolescence, compelling a teenager to pay for his crime with his life is too great a toll for a just

and moral society to exact. No matter how horrible the crime, no matter how heartbreaking the

loss.

REASONS FOR GRANTING THE WRIT

I. The lower Ohio courts deny a death-sentenced postconviction petitioner’s

rights to due process, access to the Ohio courts, and an adequate corrective

process when the courts enforce an unreasonable and improperly-restrictive

definition of “good cause” and fail to allow petitioner to conduct necessary

discovery on the vast majority of his grounds for relief before summarily

dismissing those grounds without a hearing. U.S. Const. Amends. V, VIII,

XIV.

This issue addresses the constitutional errors of the lower Ohio courts in failing to allow

Petitioner to conduct necessary discovery on his grounds for relief in his postconviction petition,

concerning the guilt-innocence phase of his capital case, before the courts granted or affirmed

summary dismissal of 57 of those grounds without a hearing.

The intermediate Ohio appellate court, reversing the trial court’s failure to allow any

discovery, has at least allowed Petitioner to obtain discovery, on remand, for three of his Grounds

(Nos. 21, 44, and 45). State v. Myers, 2021-Ohio-631, ¶¶ 153-54 (Appx-0055). The three Grounds

are Grounds 21, 44, and 45 of the Petition; these Grounds pertain to Petitioner’s claims of

ineffective assistance of trial counsel for failing to present expert testimony at the penalty phase

on the issue of adolescent brain development in conjunction with Petitioner’s young age and

mental health issues. But the intermediate appellate court affirmed the trial court’s dismissal, and

denial of discovery and an evidentiary hearing, on all other Grounds in the Petition including on

all guilt phase issues.

Petitioner’s well-supported PCR Petition identified many ways in which he was denied the

effective assistance of trial counsel during the guilt-innocence phase of his capital trial. Strickland

v. Washington, 466 U.S. 668 (1984). Buttressed by numerous supporting affidavits and documents,

Petitioner’s PCR Petition described an extensive list of acts and omissions of his trial counsel

which constitute ineffective assistance under applicable constitutional standards:

Ground No. 6: Failure to pursue a first phase youth-based defense theory

in anticipation of mitigation. (See T.d. 366, PCR Petition at ¶¶ 49-58 &

Exhs. 22, 27, 28, 37, 49, 50, and 67.)

Ground No. 10: Failure to consult with or retain a fact investigator. (See

T.d. 366, PCR Petition at ¶¶ 86-92; T.d. 369, PCR Appx. Exhs. 21, 22 and

22A; T.d. 372, PCR Appx. Exhs. 86, 90, 92.)

Ground No. 11: Failure to conduct a proper and full cross-examination of

Tim Mosley. (See T.d. 366, PCR Petition at ¶¶ 93-101; T.d. 369, PCR Appx.

Exhs. 22, 23A-B, 24, 25, 26; T.d. 371, PCR Appx. Exhs. 42, 46, 48, 49, 52,

55; T.d. 372, PCR Appx. Exh. 90.)

Ground No. 12: Failure to conduct an effective cross-examination of the

State’s witnesses Detective Wyatt and Sergeant Garrison, both at the

suppression hearing held on August 15, 2014, and at trial. (See T.d. 366,

PCR Petition at ¶¶ 102-07; T.d. 369, PCR Appx. Exh. 27.)

Ground No. 13: Failure to investigate and present a crime scene/police

procedures expert to challenge the State’s case, and especially Tim

Mosley’s journal. (See T.d. 366, PCR Petition at ¶¶ 108-16; T.d. 369, PCR

Appx. Exh. 27; T.d. 372, PCR Appx. Exh. 92.)

Ground No. 14: Failure to investigate and present a police procedures

expert to challenge Miranda issues. (See T.d. 366, PCR Petition at ¶¶ 11725; T.d. 369, PCR Appx. Exh. 27; T.d. 371, PCR Appx. Exhs. 65, 66; T.d.

372, PCR Appx. Exh. 92.)

Ground No. 15: Failure to investigate and present an expert to evaluate

Petitioner’s understanding of his Miranda rights. (See T.d. 366, PCR

Petition at ¶¶ 126-35; T.d. 369, PCR Appx. Exh. 28; T.d. 372, PCR Appx.

Exh. 92.)

Ground No. 16: Failure to achieve a change of venue for Petitioner’s

capital trial and/or to competently present and preserve that issue. (See T.d.

366, PCR Petition ¶¶ 136-45; T.d. 370, PCR Appx. Exh. 29, 30; T.d. 371,

PCR Appx. Exhs. 62, 63, 64.)

Ground No. 17: Failure to fully challenge the chain of custody of Tim

Mosley’s journal. (See T.d. 366, PCR Petition at ¶¶ 146-56; T.d. 369, PCR

Appx. Exh. 27; T.d. 372, PCR Appx. Exh. 86.)

With such allegations and supporting evidence, Petitioner satisfied any reasonable

definition of “good cause” so as to be allowed to conduct discovery on these claims, and

specifically at least the depositions of, and document productions from, Petitioner’s trial counsel

about these issues concerning their performance in the guilt-innocence phase of the trial.

Petitioner made specific allegations in his PCR Petition, supported by affidavits and other

items of evidence, including expert affidavits (T.d. 369, PCR Appx. Exhs. 27 (Gary A. Rini), Exh.

28 (Drew H. Barzman, M.D.)), such that there is “reason to believe that the petitioner may, if the

facts are more fully developed, be able to demonstrate that he is … entitled to relief….’” Bracy v.

Gramley, 520 U.S. 899, 909 (1997).

Petitioner’s allegations of ineffective assistance of trial counsel were neither patently

frivolous nor palpably incredible, and, indeed, were supported with at least some evidence. The

discovery he requested was specific, limited, and reasonably calculated to lead to evidence in

support of those claims of ineffective assistance of trial counsel. See, e.g., Monroe v. Warden, 2012

U.S. Dist. LEXIS 135535, at *27 (S.D. Ohio Sep. 21, 2012) (“The deposition discovery of the trial

attorneys is clearly relevant to the claims that they were ineffective.”); Johnson v. Bobby, 2010

U.S. Dist. LEXIS 103351, at *20-21 (S.D. Ohio Sep. 30, 2010) (“depositions of Petitioner’s trial

attorneys are the best, if not the only, source of information about counsel’s

investigation, impressions, preparation, and strategic decisions”); Hill v. Anderson, 2010 U.S.

Dist. LEXIS 132468, at *24-25 (N.D. Ohio Dec. 14, 2010) (depositions and discovery of

documents).

The requested discovery would have enabled Petitioner to more fully establish that his trial

counsel were deficient, in the above respects, under the relevant performance standards, including

because their investigation was insufficient and incomplete. Discovery would also have enabled

Petitioner to establish that trial counsel’s deficiencies were not the result of “trial strategy” or

“tactics,” and that Petitioner was “prejudiced” by the deficient performance in that, but for

counsel’s unprofessional errors, the result of the proceeding (as to guilt) would have been different.

Strickland.

When a state establishes a program or procedure, the state must operate that program or

procedure consistent with the due process clause of the Fourteenth Amendment. Goldberg v. Kelly,

397 U.S. 254, 262 (1970). In the State of Ohio, a petitioner in a postconviction proceeding has the

initial burden of submitting documentation de hors the record to demonstrate that an evidentiary

hearing is warranted. State v. Kapper, 5 Ohio St. 3d 36, 38 (1983). The State, consistent with the

due process clause, cannot place this initial evidentiary burden on a petitioner and deny him a

meaningful opportunity to meet that burden. “In almost every setting where important decisions

turn on questions of fact, due process requires an opportunity to confront and cross-examine

adverse witnesses.” Goldberg, 397 U.S. at 269.

The Ohio courts denied Petitioner a meaningful opportunity in violation of the Due Process

to establish that his trial counsel was ineffective in the guilt-innocence phase of his case when it

denied him all discovery and an evidentiary hearing on these critical issues.

II. Certiorari should be granted because the execution of an offender who

committed his offense while still a teenager constitutes cruel and unusual

punishment, and especially when the teenager was not the actual killer of the

victim of the subject homicide offense.

The Eighth Amendment guarantees individuals the right to be free from excessive

sanctions. Atkins v. Virginia, 536 U.S. 304, 311 (2002). An individual has the right to be free from

cruel and usual punishment. This fundamental right springs from one of the basic “precept[s] of

justice that punishment for crime should be graduated and proportioned to [the] offense.” Id.

(quoting Weems v. United States, 217 U.S. 349, 367 (1910)).

To determine which punishments are so disproportionate as to be cruel and unusual, the

Court has “established the propriety and affirmed the necessity of referring to ‘the evolving

standards of decency that mark the progress of a maturing society.’” Roper v. Simmons, 543 U.S.

551, 560-61 (2005) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion)). “This

is because ‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a

moral judgment. The standard itself remains the same, but its applicability must change as the

basic mores of society change.’” Kennedy v. Louisiana, 554 U.S. 407, 419 (2008) (quoting Furman

v. Georgia, 408 U.S. 238, 382 (1972) (Burger, C. J., dissenting)). “By protecting even those

convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to

respect the dignity of all persons.” Roper, 543 U.S. at 560.

As explained in Graham v. Florida, the Court has taken the following approach in cases

adopting categorical rules: First, it “considers objective indicia of society’s standards, as expressed

in legislative enactments and state practice, to determine whether there is a national consensus

against the sentencing practice at issue. Next, guided by the standards elaborated by controlling

precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s

text, history, meaning, and purpose, the Court must determine in the exercise of its own

independent judgment whether the punishment in question violates the Constitution.” Graham v.

Florida, 560 U.S. 48, 61 (2010) (internal citations and quotation marks omitted).

As discussed more fully below, and to give proper effect to the principles in Atkins, Roper,

and other controlling cases, the Eighth Amendment requires the categorical exemption for youthful

offenders to cover those who were under the age of 21 at the time of their offense, and it certainly

requires this exemption for a teenager who was not the actual killer of the victim of the subject

homicide offense.

A. Youth is a Condition Defined by Specific Characteristics.

“[Y]outh is more than a chronological fact. It is a time and condition of life when a person

may be most susceptible to influence and to psychological damage[.]” Roper, 543 U.S. at 569

(quoting Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)). See generally T.d. 371, PCR Appx.

Exh. 37 (Affidavit/Report of Daniel L. Davis, Ph.D., ABPP (hereinafter “Davis Report”) at pp.

29-36 & nn. 2-19); T.d. 371, PCR Appx. Exh. 67 (Affidavit of Bobbie Hopes, Ph.D. at ¶¶ 5-7);

T.d. 371, PCR Appx. Exh. 60 (Affidavit of Antoinette Kavanaugh at pp. 1-7); T.d. 415, Supp. PCR

Appx., Exh. 1 (Hearing Testimony of Laurence Steinberg on September 13, 2017 in Cruz v. United

States (hereinafter “Steinberg Testimony”) at pp. 3-71).

The governing case law from this Court recognizes three general differences between

children, as defined as those under 18, and adults, defined as those over 18. These hallmark

characteristics of youth are: (1) a lack of maturity, (2) an increased susceptibility to negative

influences and outside pressures, and (3) an unformed or underdeveloped character. Roper, 543

U.S. at 569-70. See also John H. Blume, Hannah L. Freedman, Lindsey S. Vann, and Amelia C.

Hritz, Death by Numbers: Why Evolving Standards Compel Extending Roper’s Categorical Ban

Against Executing Juveniles from Eighteen to Twenty-One, 98 TEXAS L. REV. 921, 927-28 (2020);

T.d. 371, PCR Appx. Exh. 37, Davis Report at pp. 29-36 & nn. 2-19; T.d. 415, Supp. PCR Appx.,

Exh. 1, Steinberg Testimony at pp. 3-71.

“First, as any parent knows and as the scientific and sociological studies . . . tend to confirm,

‘[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often

than in adults and are more understandable among the young. These qualities often result in

impetuous and ill-considered actions and decisions.’” Roper, 543 U.S. at 569-70 (quoting Johnson

v. Texas, 509 U.S. 350, 367 (1993)).

Second, the young are “more vulnerable or susceptible to negative influences and outside

pressures, including peer pressure” because, in part, they “have less control, or less experience

with control, over their own environment.” Id. at 569.

Finally, the character of someone under 18 “is not as well formed as that of an adult. The

personality traits of juveniles are more transitory, less fixed.” Id. “The reality that juveniles still

struggle to define their identity means it is less supportable to conclude that even a heinous crime

committed by a juvenile is evidence of irretrievably depraved character.” Id. at 570.

“For most teens, [risky or antisocial] behaviors are fleeting; they cease with maturity as

individual identity becomes settled. Only a relatively small proportion of adolescents who

experiment in risky or illegal activities develop entrenched patterns of problem behavior that

persist into adulthood[.]” Id. (quoting Steinberg & Scott, Less Guilty by Reason of Adolescence:

Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM.

PSYCHOLOGIST 1009, 1014 (2003)). See also T.d. 371, PCR Appx. Exh. 37, Davis Report at pp.

29-36 & nn. 2-19; T.d. 415, Supp. PCR Appx., Exh. 1, Steinberg Testimony at pp. 3-71.

These defining characteristics of youth make it difficult, even for experts, to differentiate

between youthful offenders “whose crime reflects unfortunate yet transient immaturity” and the

rare youthful offender “whose crime reflects irreparable corruption.” See Graham v. Florida, 560

U.S. 48, 68 (2010) (quoting Roper, 543 U.S. 573); see also Miller v. Alabama, 567 U.S. 460, 47172 (2012).

B. Age 18 is “a Conservative Estimate of the Dividing Line

Between Adolescence and Adulthood.”

“The qualities that distinguish juveniles from adults do not disappear when an individual

turns 18.” Roper, 543 U.S. at 574. As some members of this Court have already observed, “age

18…is in fact ‘a conservative estimate of the dividing line between adolescence and adulthood.

Many of the psychological and emotional changes that an adolescent experiences in maturing do

not actually occur until the early 20s.’” In re Stanford, 537 U.S. 968, 971 (2002) (Stevens, J.,

joined by Souter, Ginsburg, and Breyer, JJ., dissenting) (quoting Brief for American Society for

Adolescent Psychiatry et al. as Amici Curiae).

Today, there is a strong professional consensus about adolescent brain development based

on incontrovertible evidence. Neuroscientific evidence continues to demonstrate that “adolescent

brains are not fully developed, which often leads to erratic behaviors and thought processes in that

age group.” Id. at 968 (internal citations and quotation marks omitted). “[D]evelopments in

psychology and brain science continue to show fundamental differences between juvenile and

adult minds. For example, parts of the brain involved in behavior control continue to mature

through late adolescence.” Graham, 560 U.S. at 68 (citing Brief for American Medical Association

et al.; Brief for American Psychological Association). See also Blume et al., Death by Numbers,

98 TEXAS L. REV. at 930-35 (“In the fourteen years since Roper, the scientific, legal, and societal

understanding of youth’s significance has fundamentally changed. Neuroscience has revealed a

more nuanced view of the physiological markers of youth, how those markers affect behavior, and

ways in which young people’s brains continue developing into their mid-twenties. At the same

time, society’s understanding of what it means to be a young person has evolved, and capitalsentencing practices reflect that evolution by limiting the death penalty’s use against youths under

the age of twenty-one.”).

Based on “the studies underlying Miller, Roper, and Graham—studies that establish a clear

connection between youth and decreased moral culpability for criminal conduct[,]” and “the

benefit of those advances in the scientific literature”—the Washington Supreme Court in 2015

overturned an outdated 1997 opinion of that court which barred any exceptional downward

departure from a standard sentence on the basis of youth. State v. O’Dell, 358 P.3d 359, 366-68

(Wash. 2015) (en banc). The state supreme court found that the “reasoning” supporting its earlier

decision “has been thoroughly undermined by subsequent scientific developments[,]” id. at 368,

because “we now know that age may well mitigate a defendant’s culpability, even if that defendant

is over the age of 18.” Id. at 366.

“The young adult brain is still developing, and young adults are in transition from

adolescence to adulthood.” People v. House, 72 N.E.3d 357, 387 (Ill. App. Dec. 24, 2015) (quoting

Kanako Ishida, Young Adults in Conflict with the Law: Opportunities for Diversion, Juvenile

Justice Initiative, at 1 (Feb. 2015)). “Young adults are, neurologically and developmentally, closer

to adolescents than they are to adults.” Id. See also Cruz v. United States, 2018 U.S. Dist. LEXIS

52924 at **61-65 (D. Conn March 29, 2018).

“[T]he bright line cut-off of age eighteen does not accurately reflect the realities of

adolescent brain development[.]” United States v. C.R., 792 F. Supp. 2d 343, 502 (E.D.N.Y. May

16, 2011) (characterizing hearing testimony of Dr. Steinberg, the lead scientist who assisted the

American Psychological Association’s counsel in preparing its amicus brief in both Roper and

Graham), decision vacated and remanded sub nom. United States v. Reingold, 731 F.3d 204 (2d

Cir. 2013). As Dr. Steinberg explained during hearing testimony in C.R., “impulse control,

susceptibility to influence, thinking ahead, considering the future consequences of one’s actions,

those [psychosocial capacities] are all still immature at age 18.” Id. at 505. “On average” “a normal

19-year-old’s brain is not fully developed[.]” Id. at 503. See also Blume et al., Death by Numbers,

98 TEXAS L. REV. at 930-35; Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg, Young

Adulthood as a Transitional Legal Category: Science, Social Change, and Justice Policy, 85

FORDHAM L. REV. 641 (2016); Alexandra O. Cohen, et al., When Does a Juvenile Become an

Adult? Implications for Law and Policy, 88 TEMPLE L. REV. 769 (2016); Kathryn Monahan et al.,

Juvenile Justice Policy and Practice: A Developmental Perspective, 44 CRIME & JUST. 577, 582

(2015); Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen to Twenty-Year-Olds

Should Be Exempt from Life Without Parole, 52 U. RICH. L. REV. ONLINE 83 (2018).

While “the age of 18 is the point where society draws the line for many purposes between

childhood and adulthood[,]” Roper, 543 U.S. at 574 (emphasis added), science now accepts that

there is a period of adolescence that exists between the stages of “childhood” and “adulthood”

considered by the Court in drawing the line in Roper. During this period of adolescence, though

legally an “adult,” youths in this age category, on average, still possess all the relevant

psychosocial deficiencies deemed worthy of protection in Roper.

As noted by the Court in Miller, the decisions in Roper and Graham relied on significant

gaps between juveniles and adults including that juveniles possess a “‘lack of maturity and an

underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risktaking.’” Miller, 567 U.S. 471 (quoting Roper, 543 U.S. at 569). These gaps remain at ages 18, 19,

and 20, as the science confirms.

“In the years since Roper, developments in neuroscience have made clear that the line the

Court chose in Roper––eighteen years––is too low.” See Blume et al., Death by Numbers, 98

TEXAS L. REV. at 930.

C. There is a Consensus that Persons Under 21 at the Time of

Their Offense Do Not Possess the Requisite Level of Culpability

Necessary for the Government to Impose a Death Sentence

Upon Them.

In addition to the existing scientific consensus, there is also a societal consensus about

those under 21. Society agrees these young adults have neither attained a level of maturity, nor

an appreciation for the consequences of their actions, sufficient to participate in numerous

activities requiring those characteristics. As a result, “[s]ociety treats people under twenty-one

more like teenagers than adults, acknowledging––at least tacitly––the fact that brain development

is not complete by the age of eighteen.” Blume et al., Death by Numbers, 98 TEXAS L. REV. at

935.

When setting the cutoff at 18, the Court acknowledged that “[t]he qualities that distinguish

juveniles from adults do not disappear when an individual turns 18,” however “a line must be

drawn.” Roper, 543 U.S. at 574. That line was drawn at 18 because that is “the point where

society draws the line for many purposes between childhood and adulthood.” Id. Yet, society

draws the line higher, at age 21, for a significant number of activities.

As noted by the Court in Miller, the decisions in Roper and Graham relied on significant

gaps between juveniles and adults including that juveniles possess a “lack of maturity and an

underdeveloped sense of responsibility, leading to recklessness, impulsivity, and heedless risktaking.” Miller, 567 U.S. 471 ((quoting Roper, 543 U.S. at 569). These gaps remain at age 18,

and our society accepts, particularly as to risky behaviors such as drinking or gambling, that the

necessary faculties required to responsibly engage in these behaviors are only sufficiently

developed, at a minimum, at age 21. Thus, as a result, we, as a society, exclude those who are

over 18, but still under 21, from these types of activities.

Age 21—the line for entry into “full” adulthood—is also consistent with our societal

values, as reflected through countless legislative enactments. Age-based classifications found in

legislation across the U.S. reveal our implicit societal beliefs regarding levels of responsibility

among the young. These regulations are abundant and well-known.

Generally, laws using age 18 as a threshold age can be characterized broadly as involving

inherently personal decisions. These decisions include marriage, voting, entering the military,

purchasing tobacco, pursuing (or abstaining) from certain medical treatments, and entering

personal contracts. These decisions impact, either directly or primarily, the individual making the

decision, and the individual usually can take their time in making the decision or acting upon it in

the future.

On the other hand, laws using the age of 21 as a threshold generally govern activities or

decisions that require the exercise of good judgment, self-control, or involve the weighing of risk.

Such activities include purchasing and consuming alcohol, casino gambling, and recreational

marijuana use in states which permit it. These types of activities involve actions or decisions made

in the relative short-term, which have the potential to jeopardize the health, finances, or physical

safety of the person engaging in the activity or others.

The line was drawn at 18 in Roper because that is “the point where society draws the line

for many purposes between childhood and adulthood.” Id. However, the point where society draws

the line is not as suggested and/or it has changed since 2005 as society’s perceptions of youth have

evolved.

And when the social and scientific basis for an age line are no longer valid, the Court has

set a new line or (as in Roper) adopted the line set by a state supreme court applying the relevant

Eighth Amendment principles:

[W]e cannot impose an immutable line—a cutoff date based only on

chronological age—after which we refuse to consider an offender’s

individual and mitigating characteristics; even the Supreme Court’s “line”

has evolved in recent decades—notably, continually upward—as society’s

standards, mores, and understanding of the impact of immaturity on the

culpability of youthful offenders have evolved.

Nelson v. State, 947 N.W.2d 31, 43 (Minn. 2020) (Chutich, J., dissenting) (emphasis supplied and

some citations omitted). See also Blume et al., Death by Numbers, 98 TEXAS L. REV. at 929

(“[W]hen the Court has drawn bright lines that are later shown to lack social and scientific support,

it has redrawn them. In Roper, the Court revisited its prior decisions because the scientific and

societal bases upon which they were based could no longer support an age cutoff of sixteen.”);

Michael L. Perlin and Alison J. Lynch, Therapeutic Jurisprudence and Family Law: “Some

Mother’s Child Has Gone Astray”: Neuroscientific Approaches to a Therapeutic Jurisprudence

Model of Juvenile Sentencing, 59 FAM. CT. REV. 478, 479 (2021) (“While some significant legal

strides have been made in cases such as Miller v. Alabama, . . . there are still areas in which the

law needs -- badly -- to catch up to what current neuroscience can tell practitioners about the

immaturity of the juvenile brain.”).

D. There are increasing objective indications––in dramatically

reduced use of the death penalty, in other sentencing practices,

and in evolving case law––which reflect today’s societal

consensus that 18-20 year olds are undeserving of the criminal

law’s harshest punishments because the hallmark

characteristics of youth make them less morally culpable than

mature adults.

Because the legislature may fail to act to extend protections to an unpopular or disfavored

group, like criminal defendants, the Supreme Court aptly recognizes that in cases of this nature

“[t]here are measures of consensus other than legislation.” Graham, 560 U.S. at 62 (quoting

Kennedy, 554 U.S. 433). “Actual sentencing practices are an important part of the Court’s inquiry

into consensus.” Id. (citing Enmund v. Florida, 458 U.S. 782, 794-96 (1982)); see also Atkins, 536

U.S. at 316 (“[i]t is not so much the number of these States [that forbade execution of the

intellectually disabled] that is significant, but the consistency of the direction of change.”); Roper,

543 U.S. at 564-65; Kennedy, 554 U.S. at 412.

1. Sentencing practices and data.

In Ohio and throughout the country, there has been a marked decline in recent years in the

imposition of new death sentences, and especially on teenagers. See Death Penalty Information

Center (DPIC), Death Sentences in the United States From 1977 By State and By Year.1

In 2005, for example, the year Roper was decided, there were 140 death sentences

nationwide and 5 in Ohio; yet, in 2020, there were 18 nationwide and only 1 in Ohio (that of Joel

Drain). See Ohio Attorney General’s Capital Crimes Report for 2020 at pp. 37, 40 (April 1, 2021).2

As another measure, in Ohio, there were 167 death sentences in Ohio during the 15 full

years before and including the year of Roper’s decision in 2005 (thus, from 1991-2005). In the 15

full years since Roper’s decision (from 2006-2020), there have been 49. See OAG’s 2020 Capital

Crimes Report at pp. 40-42.

In addition to the reduction in the number of new death sentences imposed, there has also

been a precipitous drop in the number of executions actually carried out upon those who were

under 21 at the time of their crime. A careful study analyzing the relevant data, conducted in 2016,

Available at: https://deathpenaltyinfo.org/death-sentences-united-states-1977-present

(last visited November 8, 2021).

The Ohio Attorney General’s Capital Crimes Report for 2020 was issued on April 1,

2021. It will hereinafter be referred to as: “OAG’s 2020 Capital Crimes Report.” It is available

at: https://www.ohioattorneygeneral.gov/2020CapitalCrimesReport (last visited November 8,

2021).

concluded that executions of emerging adults—those who were 18, 19 or 20 at the time of their

offenses—“are rare and occur in just a few states”. Brian Eschels, Data & the Death Penalty:

Exploring the Question of National Consensus Against Executing Emerging Adults in

Conversation with Andrew Michaels’s A Decent Proposal: Exempting Eighteen-to Twenty-YearOlds from the Death Penalty, 40 N.Y.U. REV. L. & SOC. CHANGE HARBINGER 147, 152 (2016)

(footnotes omitted). See also Andrew Michaels, A Decent Proposal: Exempting Eighteen-to

Twenty-Year-Olds from the Death Penalty, 40 N.Y.U. REV. L. & SOC. CHANGE 139 (2016); Note,

The Roper Extension: A California Perspective, 71 HASTINGS L.J. 197, 204 (Dec. 2019) (“A

national consensus, specifically against imposing the death penalty on society’s youngest adults,

has developed as young adults are facing execution with less frequency.”).

The relative rarity was confirmed is a more recent study published in the Texas Law

Review in 2020. “Since Roper, only 165 of the 1,351 death sentences were imposed on youthful

offenders and the number of youthful offenders sentenced to death each year has been declining.”

Blume et al., Death by Numbers, 98 TEXAS L. REV. at 939. And these death sentences of youthful

offenders are concentrated in only a few counties. “Of the over 3,000 counties in the United States,

eighty-five have sentenced a youthful offender to death since Roper and only thirty have sentenced

more than one youthful offender to death in that time period.” Id. at 942.

The data in Ohio also confirms the evolution of standards of decency away from death

sentences and executions of youthful offenders. There were 42 death sentences imposed in Ohio

upon youthful offenders who were between ages 18 and not-yet-21 at the time of their offense,

during the fifteen-year period between 1981 (when capital prosecutions resumed in Ohio) and June

30, 1996 (when LWOP became available as a sentencing option). (See Ohio Death Sentences: Age

of Offenders at Time of Offense (T.d. 415, Supp. PCR Appx., Exh. 5)). During the eighteen-year

period, from July 1, 1996 through September 2014 (when the data was assembled), there were

only 8. Id. See also Ohio Attorney General, Capital Crimes Annual Report for 2015 (April 2016)

(T.d. 369, PCR Appx. Exh. 16)).

More recent data in Ohio only reaffirms and solidifies the societal consensus against death

sentences for youthful offenders, certainly in this State. Since 2005 (the year of Roper), there have

been 49 Ohio death sentences. See OAG’s 2020 Capital Crimes Report at p. 40-41. In those 15 full

years (2006-2020), only 5 of the 49 were teenaged offenders (Lang, Pickens, Ford, Myers,

Graham). Id.

In 1998 alone, there were 16 death sentences in Ohio, and 7 were of those under 21

(Franklin, Hughbanks, Johnson, Carter, Green, Stallings, and Herring). See OAG’s 2020 Capital

Crimes Report at p. 42; Ohio Death Sentences: Age of Offenders at Time of Offense at pp. 3, 7-8

(T.d. 415, Supp. PCR Appx., Exh. 5).

In the next 22 years in Ohio (from 1999 to 2020), there were 99 death sentences. See

OAG’s 2020 Capital Crimes Report at pp. 40-42. Only 6 were teens (Yarborough, Lang, Pickens,

Ford, Myers, Graham). See Ohio Death Sentences: Age of Offenders at Time of Offense at pp. 810 (T.d. 415, Supp. PCR Appx., Exh. 5).

Seven in 1998. Six in the next 22 years. Petitioner is one of those six.

The foregoing data indicates that the practice of sentencing those under 21 to death is now

increasingly rare, and the rarity reveals a national consensus opposed to their execution. See

Graham, 560 U.S. at 62-65. See also Blume et al., Death by Numbers, 98 TEXAS L. REV. at 93944; Michaels, 40 N.Y.U. Rev. L. & Soc. Change 139, 149-51, 168-72 (2016).

2. Many states have abolished the death penalty altogether or

have not used it in a decade or more.

Although it is true that no state has enacted legislation raising the minimum age for deatheligibility above 18, that is likely because, instead of taking that incremental step, states have

chosen to abandon the death penalty altogether. States which have abolished the death penalty are

to be counted as part of the national consensus against the execution of those under 21. See Hall

v. Florida, 572 U.S. 701, 716 (2014).

As of November 8, 2021 (the date this Petition was finalized), twenty-three states (23) and

the District of Columbia have abolished the death penalty either in full or for new offenses. See

Death Penalty Information Center, States With and Without the Death Penalty.3 The most recent

abolition states are Virginia (2021, by legislation), Colorado (2020, by legislation), New

Hampshire (2019, by legislation), and Washington (2018, by court decision, State v. Gregory, 192

Wash. 2d 1, 427 P.3d 621 (2018)).

In thirteen (13) of the other states that still retain the death penalty as a sentencing option,

there have been no executions in a decade or more. See Death Penalty Information Center, States

With No Recent Executions.4 See also Glossip v. Gross, 576 U.S. 863, 939 (2015) (Breyer, J.,

dissenting) (citing to DPIC, Executions by State and Year).

Thus, in total, 36 states and the District of Columbia have either formally abolished the

death penalty or have not conducted an execution in more than a decade. See id. Accordingly, in

practice, the super-majority of states have not executed anyone under 21 in over a decade.

3. Court decisions are increasingly recognizing the diminished

moral culpability of youthful offenders extends to those 18, 19

and 20.

Another measure of consensus is court decisions on the issue of youthful offenders and

their eligibility for death sentences and life without possibility of parole. A number of courts have,

See https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited

November 8, 2021).

See https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recentexecutions (updated as of March 24, 2021 (last visited November 8, 2021)).

in recent years, recognized that offenders older than 18, but who are still teenagers and/or younger

than 21, possess the exact same characteristics of youth and immaturity upon which the categorical

ban against capital punishment for those under 18 was established in Roper, and, accordingly, such

youthful offenders should also be exempt from execution or the criminal law’s other harshest

punishments.

In Commonwealth v. Bredhold, for example, a common pleas court in August 2017

declared Kentucky’s death penalty statute unconstitutional insofar as it allows capital punishment

for those who were under 21 years of age when they committed their offenses. Commonwealth v.

Bredhold, No. 14-CR-161, Order Declaring Kentucky’s Death Penalty Statute as Unconstitutional

(Fayette Co. Aug. 1, 2017) (T.d. 415, Supp. PCR Appx., Exhibit 8.)

On March 26, 2020, the Kentucky Supreme Court vacated and remanded because the issue

was not yet justiciable and a young offender does not have standing to make his Eighth

Amendment challenge to a death sentence until the sentence has actually been imposed.

Commonwealth v. Bredhold, 599 S.W.3d 409, 412 (Ky. 2020). But the court nonetheless

recognized the critical importance of the age issue. Id. at 423.

The Washington Supreme Court recently (March 21, 2021) addressed the age issue in the

context of postconviction claims by two offenders––Monschke and Bartholomew––convicted of

aggravated first degree murder committed in 2003 and 1981, respectively, when they were 19 and

20 years old, and sentenced to LWOP as mandated by Washington law. The two offenders argued

that mandatory LWOP sentences were unconstitutionally cruel when applied to youthful

defendants like themselves. The Court agreed under the Washington constitution’s cruel

punishments clause:

¶2 Modern social science, our precedent, and a long history of arbitrary line

drawing have all shown that no clear line exists between childhood and

adulthood. For some purposes, we defer to the legislature’s decisions as to

who constitutes an “adult.” But when it comes to mandatory LWOP

sentences, Miller’s constitutional guaranty of an individualized sentence—

one that considers the mitigating qualities of youth—must apply to

defendants at least as old as these defendants were at the time of their

crimes. Miller v. Alabama, 567 U.S. 460, 469-80, 132 S. Ct. 2455, 183 L.

Ed. 2d 407 (2012).

In re Pers. Restraint of Monschke, 197 Wash. 2d 305, 306-07, 482 P.3d 276, 277 (2021).

The court relied on this Court’s recent decision in Hall to drive home its conclusion that

the constitutional protection extends to those over 17, and includes 19 and 20 year olds like

Monschke and Bartholomew. In re Pers. Restraint of Monschke, 197 Wash. 2d at 325, 482 P.3d at

286. See also People v. Rodriguez, 2021 IL App (1st) 190983-U, 2021 Ill. App. Unpub. LEXIS

199 (Feb. 10, 2021) (allowed an 18 year old offender who received a de facto life sentence in

2001––of 50 years in prison––to go back to the trial court on a successor postconviction petition);

People v. House, 2019 436 Ill. Dec. 355, 142 N.E.3d 756 (Ill. App. 2019) (holding that Illinois

Constitution prohibits a mandatory life sentence for a young adult offender who was 19 at the time

of the offense).

These same issues, in the mandatory LWOP context, were addressed in great detail by the

federal district court in Cruz v. United States, 2018 U.S. Dist. LEXIS 52924 (D. Conn. Mar. 29,

2018). In 1994, Luis Noel Cruz and a co-defendant, both members of a violent street gang,

murdered two people on orders of their gang leader. Cruz was 18 years and twenty weeks old at

the time. In September 1995, Cruz was convicted in federal court of three Violent Crimes in Aid

of Racketeering, to wit one count of conspiracy to murder and two counts of murder. In January

1996, Cruz was sentenced to concurrent terms of mandatory life without parole. In 1999, his

convictions were affirmed. United States v. Diaz, et. al., 176 F.3d 52 (2d Cir. 1999).

In the succeeding years, from 2001 to 2013, Cruz filed four applications for habeas corpus

relief under 28 U.S.C. § 2255. All of them were denied, or the Second Circuit denied permission

to proceed. On June 25, 2012, the Supreme Court decided Miller v. Alabama, holding that

“mandatory life without parole for those under the age of 18 at the time of their crimes violates

the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Even though Cruz was

over the age of 18 at the time of his crimes, he filed pro se a fifth application for § 2255 relief,

seeking to come within the protection of Miller. On July 22, 2013, the Second Circuit certified

Cruz’s fifth motion as having made a prima facie showing that his claim under Miller satisfied the

successive petition requirements. Cruz v. Unites States, Case No. 13-2457 (2nd Cir. 2013).

The federal district court ultimately granted Cruz’s request for an evidentiary hearing on

his habeas claim for expansion of Miller to include youthful offenders over 18 on the premise that

such offenders share the same characteristic weaknesses addressed in Roper. Judge Hall

recognized that Roper, Graham, and Miller lack any discussion of “what courts should do when

presented with those individuals who are just past the line established twelve years ago in Roper,

as adopted by Miller, but to whom all of the various Eighth Amendment concerns about protecting

juveniles from disproportionate punishment may apply with almost equal force.” Cruz v. United

States, 2017 U.S. Dist. LEXIS 143842, at *23 (D. Conn. Apr. 3, 2017), reconsideration denied,

Order (D. Conn. July 12, 2017).

On March 29, 2018, the federal court, after holding a hearing at which Professor Laurence

Steinberg testified about the current state of the scientific learning in this area, granted Cruz’s

petition. The district court held that Cruz’s sentence in 1996 of mandatory LWOP violated the

Eighth Amendment under the rule announced in Miller v. Alabama. Cruz v. United States, 2018

U.S. Dist. LEXIS 52924, at *70-71. Based on that decision, the district court on March 18, 2019,

re-sentenced Cruz to 35 years in prison. See United State v. Cruz, Case No. 3:94-cr-00112-JCH16, Docket No. 2118 (D. Conn. March 18, 2019). On September 11, 2020, however, a panel of the

Second Circuit vacated the lower court’s decision in Cruz on the basis of an earlier decision by a

panel of the Second Circuit in United States v. Sierra, 933 F.3d 95 (2d Cir. 2019), which held that

mandatory life sentences for individuals eighteen years old or older do not violate the Eighth

Amendment. See Cruz v. United States, 826 Fed. Appx. 49 (2d Cir. 2020).

In compliance with the Second Circuit’s mandate, the district court reinstated the original

judgment imposing life imprisonment for Cruz on March 16, 2021. However, on April 9, 2021––

with Cruz now “45 years old [and having] effectively served almost 31 years of that life sentence,”

for a crime he committed when he was 18––the court granted Cruz’s motion for a sentence

reduction under the First Step Act, and reduced his life sentence to a term of 30 years and ordered

him released. In doing so, the judge in part relied on the developing science about the teenaged

brain and the distinguishing characteristics of youth. United States v. Cruz, 2021 U.S. Dist. LEXIS

68857, at *12-17 (D. Conn. Apr. 9, 2021).

A panel of the U.S. Court of Appeals for the Sixth Circuit on September 5, 2018, citing

Judge Hall’s 2018 opinion in Cruz, authorized the filing of a successor habeas petition by a

Michigan prisoner who had been sentenced to LWOP in 1996 for a first-degree murder he

committed when he was 18 years old, so that he can now raise the following claim: “Whether the

protections of Miller should be extended to 18 year olds based on the societal evidence of national

consensus and scientific evidence demonstrating that a youth of 18 years of age is legally and

developmentally a child.” In re Lambert, No. 18-1726, 2018 U.S. App. LEXIS 25332, at *3 (6th

Cir. Sep. 5, 2018).

In July 2017, the Sixth Circuit’s chief judge, R. Guy Cole, Jr., recognized the significance

of the 18-21 age issue in his concurring opinion in the case of Ohio death-row inmate Ronald

Phillips. Although the panel of the Sixth Circuit held that procedural barriers prevented that court,

in 2017, from allowing further review of the death sentence imposed upon Phillips in 1993 when

he was 19 years old, Chief Judge Cole stated in his concurring opinion:

[R]ecent decisions by several courts, including the Supreme Court, have

recognized that the qualities separating juveniles from adults are not static.

Rather, such characteristics fall along a spectrum that varies as each person

ages and matures. It is clear under Supreme Court precedent that persons

under the age of eighteen may not be sentenced to death due to the impact

that their emotional and psychological maturity has on their sense of

culpability. Likewise, developments in science have shown that young

adults beyond the age of eighteen continue to experience a similar impact

on their sense of responsibility and judgment. Because these arguments

touch on the essential guarantees against cruel and unusual punishment and

unequal protection, concerns regarding the culpability of such young adults

merit further consideration by the Supreme Court.

In re Phillips, 2017 U.S. App. LEXIS 17766, at *10-11 (6th Cir. July 20, 2017) (Cole, C.J.,

concurring). More recently, Judge Jane Stranch made similar points in her concurring opinion in

Pike v. Gross, 936 F.3d 372, 383 (6th Cir. Aug. 22, 2019) (Stranch, J., concurring).

And, on August 24, 2020, the Sixth Circuit suggested in United States v. Sherrill, 972 F.3d

752 (6th Cir. 2020), citing Judge Stranch’s concurrence, that a reassessment may be underway on

whether a life sentence violates the Eighth Amendment (or is substantively unreasonable) because

it is imposed on an offender between the ages of 18 and 21. Id. at 774.

There is, to be candid, other recent case law where courts have declined to extend the age

line beyond 18 as set in Roper, but sometimes there are dissents and/or procedural barriers to full

consideration. See, e.g., United States v. Roof, 2021 U.S. App. LEXIS 25525, at *128-29 (4th Cir.

Aug. 25, 2021); United States v. Tsarnaev, 968 F.3d 24, 96-97 (1st Cir. 2020); Hairston v. State,

472 P.3d 44 (Idaho Sep. 3, 2020); Nelson v. State, 947 N.W.2d 31 (Minn. July 29, 2020).5

Recognizing the same directional trend away from the execution of teenagers, the

American Bar Association (“ABA”) issued a Resolution in February 2018, “urg[ing] each

jurisdiction that imposes capital punishment to prohibit the imposition of a death sentence on or

execution of any individual who was 21 years old or younger at the time of the offense.” See

Seth Miller and Robert Weiner, Report to the House of Delegates, Resolution 111, American Bar

Association Death Penalty Due Process Review Project and Section of Civil Rights and Social

Justice, February 2018, and also available at

https://www.abajournal.com/files/2018_hod_midyear_111.pdf) (last visited November 8, 2021).

It is of no consequence that legislation has not been enacted specifically in this regard—to

“benefit” a disfavored group, capital defendants. That omission, when coupled with the multitude

of laws establishing age-based distinctions between 18 and 19-year-olds on the one hand, and 21year-olds on the other, supports the need in this context for this Court to recognize the inherent

judgments embodied in those laws. Such laws reflect society’s acceptance of meaningful

differences between 18 and 19-year-olds, and 21-year-olds, which have significant impact on their

respective culpability in the capital context. In this way, legislatures have already weighed the

relevant issue countless times.

“The dynamic of our constitutional system is that individuals need not await legislative

action before asserting a fundamental right. . . . An individual can invoke a right to constitutional

protection when he or she is harmed, even if the broader public disagrees and even if the legislature

refuses to act.” Obergefell v. Hodges, 576 U.S. 644, 677 (2015). Because Petitioner is seeking to

vindicate a fundamental right protected by the Eighth Amendment, the minimum age for capital

punishment is a question properly before this Court.

E. There is an Unacceptable Risk That the Brutal Nature of a

Capital Crime Will Render the Sentencer Unable to Afford

Mitigating Arguments Based on Youth Their Proper Weight.

A central feature of capital sentencing is an individualized assessment of the circumstances

of the crime and the characteristics of the offender. “The system is designed to consider both

aggravating and mitigating circumstances, including youth, in every case.” Roper, 543 U.S. at 569.

As a result, raising the age of offenders protected by the categorical ban may seem unnecessary.

But that is wrong. In capital cases, the risk is much too great that the sentencer—because of the

sheer horror of the crime, and magnitude of the loss—will be unable to give youth, and its attendant

characteristics, the mitigating value to which they are entitled.

That risk was demonstrated in this case, as the senselessness and cold-blooded nature of

the crime, and the magnitude of the loss of young Justin Back, overwhelmed the ability of the jury

and trial court to afford Petitioner’s youthfulness the proper weight it must be afforded under the

constitution.

This Court has voiced significant concern over the known “risks” which accompany the

prosecutions of crimes which should, by definition, be factually among the “worst of the worst.”

When determining if a defendant accused of committing a capital crime is also among “the worst

of the worst” offenders, the risk is “unacceptable” “that the brutality or cold-blooded nature” of

the crime may “overpower mitigating arguments based on youth.” Roper, 543 U.S. at 573. There

is also the risk that youth will be improperly treated as an aggravating factor rather than a

mitigating one. Id. Further, it is difficult even for experts to know when a youthful offender’s

actions reflect “transient immaturity” versus “irreparable corruption.” See id. See also Montgomery

v. Louisiana, 577 U.S. 190, 136 S. Ct. 718, 734 (2016); Miller, 567 U.S. at 479-80.

Petitioner’s case exemplifies the potential for the facts of the crime, as presented by the

State, to overwhelm the sentencer’s ability to properly consider the weight of youth and its

attendant features. This problem was only compounded by the independent proportionality review

on direct appeal. There, the Supreme Court of Ohio afforded only “some weight” to Petitioner’s

youth, and collectively afforded all his mitigation only “at most, modest weight.” State v. Myers,

154 Ohio St. 3d 405, 447, 2018-Ohio-1903, ¶¶ 224-26 (May 17, 2018) (emphasis supplied).

F. There are Insufficient Penological Justifications for the

Execution of Youthful Offenders.

There are insufficient penological justifications for the use of capital punishment as a

sentencing option for youthful offenders. “[T]here are two distinct social purposes served by the

death penalty: ‘retribution and deterrence of capital crimes by prospective offenders.’” Atkins, 536

U.S. at 319 (quoting Gregg v. Georgia, 428 U.S. 153 (1976) (joint opinion of Stewart, Powell, and

Stevens, JJ)).

However, “[r]etribution is not proportional if the law’s most severe penalty is imposed on

one whose culpability or blameworthiness is diminished, to a substantial degree, by reason of

youth and immaturity.” Roper, 543 U.S. at 571. “Moreover, youth crime as such is not exclusively

the offender’s fault; offenses by the young also represent a failure of family, school, and the social

system, which share responsibility for the development of America’s youth.” Eddings, 455 U.S. at

115 n.11 (quoting Twentieth Century Fund Task Force on Sentencing Policy Toward Young

Offenders, Confronting Youth Crime 7 (1978)).

As far as deterrence is concerned, “[t]he likelihood that the teenage offender has made the

kind of cost-benefit analysis that attaches any weight to the possibility of execution is so remote

as to be virtually nonexistent.” Thompson v. Oklahoma, 487 U.S. 815, 837 (1988) (plurality

opinion). See also Blume et al., Death by Numbers, 98 TEXAS L. REV. at 934 (“As the Court has

explained, unless the imposition of the death penalty on a particular class of offender measurably

contributes to the penological justifications for capital punishment—retribution and deterrence—

‘it ‘is nothing more than the purposeless and needless imposition of pain and suffering,’ and hence

an unconstitutional punishment.’ Executing youthful offenders serves neither goal.”) (citations and

footnotes omitted).

G. Drawing the Line at Age 18 Arbitrarily Excludes Those Who

Possess All the Characteristics Deemed Worthy of Protection

Under the Categorical Ban.

The categorical ban protecting youthful offenders from disproportionate death sentences

is no longer sufficient for its intended purpose. Based on all we have learned from and since

Roper, the arbitrary cut-off at age 18 fails to protect all those youthful offenders slightly over age

18 whom, because they share the exact same characteristic vulnerabilities and weaknesses as

those under 18, are equally justified in being exempted from a death sentence. They are excluded

from this protection not because they are unworthy of it but, rather, because they fall just outside

a line that this Court can and should adjust to properly include them.

The Court recently did just that in the content of another exemption from the death

penalty, intellectual disability. In Hall v. Florida, the Court found unconstitutional a Florida rule

that prevented a person under a death sentence from presenting additional evidence that qualified

under Atkins as intellectual disability unless they had an I.Q. score of 70 or lower. Hall, 520 U.S.

at 710-11. Cognizant of the fact that “[i]ntellectual disability is a condition, not a number,” id. at

723, the Court struck down the “rigid rule” concerning I.Q. scores because it “create[s] an

unacceptable risk that persons with intellectual disability [would] be executed.” Id. at 704. Hall

also stressed the importance of the medical community in defining and diagnosing the condition.

Id. at 710-11, 721-22.

Hall clarifies that in the context of a categorical ban with a foundation in science, the

underlying characteristics which define the class of persons is what entitles the person to

protection—not the number associated with it. Just as an I.Q. score of 70 approximates

intellectual disability, so too is age 18 a proxy for youth. That proxy is now deficient for many

of the same reasons a score of 70 is deficient for intellectual disability.

The Washington Supreme Court, in In re Pers. Restraint of Monschke, discussed above,

relied upon Hall to drive home its conclusion that the constitutional protection extends to those

over 17, and includes 19 and 20 year olds like Monschke and Bartholomew. In re Pers. Restraint

of Monschke, 197 Wash. 2d at 325, 482 P.3d at 286.

Science and society have progressed to such a point that it is now widely accepted that

there is a time of adolescence between the stages of “childhood” and “adulthood” as they were

considered and understood in Roper. As a result, today “[t]he bright line cut-off of age eighteen

does not accurately reflect the realities of adolescent brain development[.]” United States v. C.R.,

792 F. Supp. 2d at 502. This Court should now adjust that line to include at least those, like

Petitioner, who were still teenagers at the time of their offense.

The evolving standards establish that it is immoral and unjust for society to permit

imposition of a death sentence upon a youthful offender, at the “outset” of life, when such an

offender is still unformed as a person, and, due to his youth and developing brain, still has “the

potential to attain a mature understanding of his own humanity.” Roper, 543 U.S. at 574. This

Court should address the question of the minimum age of execution and raise the categorical bar

to age 21, or at least age 20, to bring the controlling case law in conformance with prevailing

standards of dignity.

H. The Line Drawn by Roper is Now Ripe for Reevaluation.

Given the steady progression of societal standards toward a “more humane justice” and the

tremendous consequences, the question of the minimum age for capital punishment in the modern

era has been revisited by this Court every twelve years or so. The Court has similarly revisited

questions on other categorical bans, such as intellectual disability, within that same timeframe.

Given this past practice, the time is ripe for reexamination of this sentencing practice. A review of

the relevant cases confirms the point.

Twelve years after the Court’s decision in Gregg v. Georgia, 428 U.S. 153 (1976), the first

challenge to the imposition of the death penalty based on age was decided in 1988 in Thompson,

487 U.S. at 818-38 (plurality) (offenders under 16 may not be executed).

The following term, the Court revisited the minimum age of execution, this time to address

“whether the Eighth Amendment precludes the death penalty for individuals who commit crimes

at 16 or 17 years of age.” Stanford v. Kentucky, 492 U.S. 361, 368 (1989). The Court, 5 to 4,

declined to extend the age bar established in Thompson the previous term. Coincidentally, the same

day Stanford was decided, another 5 to 4 opinion was issued in the intellectual disability case

Penry v. Lynaugh, 492 U.S. 302 (1989). In Penry, the Court declined to categorically prohibit the

execution of offenders with intellectual disability. Id. at 335.

Thirteen years after declining the categorical relief sought in Penry, the Court in 2002

established categorical protection for those with intellectual disability in Atkins. The Court

reassessed the evidence of a national consensus under the then-prevailing standards of decency,

finding that in the intervening years since its last review, meaningful development in areas

supporting the ban had developed—evidence the Court had notably found lacking in Penry.

Within months of Atkins’ issuance, relying on the parallels between the limitations of those

with intellectual disability and those under age 18, one of the petitioners in Stanford v. Kentucky

sought an original writ of habeas corpus in this Court. Though four Justices voted to hear the case,

procedurally, five votes are required before the Court could take up the case. Thus, the writ was

denied, but four Justices dissented in an opinion by Justice Stevens. In re Stanford, 537 U.S. at

968 (Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ., dissenting).

Sixteen years after the Court’s last substantive evaluation of the minimum age for

execution in Stanford v. Kentucky, the Court revisited the minimum age question in 2005 in Roper,

to reevaluate the appropriateness of the juvenile death penalty in terms of contemporary standards

of decency. Roper, 543 U.S. at 560-64. The Court found that the standards prevailing in 2005, and

the Court’s own independent judgment, compelled the categorical prohibition on the execution of

those under age 18 at the time of their offense. Id. at 564-70.

In 2014, twelve years after Atkins, this Court revisited its holding in that case in Hall v.

Florida. The question posed by Hall was how intellectual disability must be defined in order to

implement the principles and the holding of Atkins. The Court reaffirmed its ruling in Atkins,

admonishing the rigid conformity of states like Florida who enforced a strict numerical cutoff of

70 for I.Q. scores in ID cases.

Now, sixteen years after Roper, Petitioner presents his petition to the Court requesting that

the minimum age question be revisited under today’s prevailing standards of decency. As outlined

above, there has been a sea change in youth sentencing standards, reflected in the robust body of

relevant case law developed since that time.

While the State can and should punish youthful offenders severely for their crimes, asking

a teenager to pay for his crime with his life is too great a toll for a just and moral society to exact.

This Court should revisit the question of the minimum age of execution and raise the categorical

bar to age 21 to bring the controlling case law in conformance with prevailing standards of dignity.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully Submitted,

/s/ Timothy F. Sweeney

Timothy F. Sweeney (OH 0040027)*

MEMBER OF THE BAR OF THIS COURT

LAW OFFICE OF TIMOTHY FARRELL SWEENEY

The 820 Building, Suite 430

820 West Superior Ave.

Cleveland, Ohio 44113-1800

Phone: (216) 241-5003

Email: tim@timsweeneylaw.com

/s/ John P. Parker

John P. Parker (OH 0041243)

MEMBER OF THE BAR OF THIS COURT

Attorney at Law

988 East 185th Street

Cleveland, Ohio 44119

Phone: (216) 881-0900

Email: advocateparker@gmail.com

*COUNSEL OF RECORD

Counsel for Petitioner Austin Myers

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.