Petition for Writ of Certiorari — Lonnie Allen Bassett, Petitioner v. Arizona

Supreme Court briefJan 31, 2024

Ask Donna

What actually matters in this document.

Text

No. _____

IN THE

Supreme Court of the United States

LONNIE ALLEN BASSETT,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

On Petition for a Writ of Certiorari to the

Arizona Supreme Court

PETITION FOR A WRIT OF CERTIORARI

AMY E. BAIN

BAIN & LAURITANO, PLC

7149 North 57th Drive

Glendale, AZ 85301

NEAL KUMAR KATYAL

Counsel of Record

KATHERINE B. WELLINGTON

WILLIAM E. HAVEMANN

DANA A. RAPHAEL

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

MATTHEW DORRITIE

RACHEL RECORD

HOGAN LOVELLS US LLP

125 High Street, Suite 2010

Boston, MA 02110

Counsel for Petitioner

QUESTION PRESENTED

This Court has repeatedly affirmed that the

Constitution “prohibits mandatory life-without-parole

sentences for murderers under 18.”

Jones v.

Mississippi, 141 S. Ct. 1307, 1312 (2021); see Miller v.

Alabama, 567 U.S. 460, 470 (2012); Montgomery v.

Louisiana, 577 U.S. 190, 195, 206 (2016). Juvenile

homicide offenders “may be sentenced to life without

parole, but only if the sentence is not mandatory and

the sentencer therefore has discretion to impose a

lesser punishment” than life without parole. Jones,

141 S. Ct. at 1311 (emphases added).

Because Arizona abolished parole in 1994, Miller

counted Arizona as one of “29 jurisdictions mandating

life without parole for children” in violation of the

Eighth Amendment. 567 U.S. at 482, 486-487 & nn.9,

13, 15. Both this Court and the Arizona Supreme

Court have repeatedly “confirmed that parole was

unavailable” under Arizona law. Lynch v. Arizona,

578 U.S. 613, 616 (2016) (per curiam). In the decision

below, the Arizona Supreme Court nevertheless

concluded that Miller, Montgomery, and Jones do not

forbid Arizona courts from imposing mandatory

sentences of life without parole.

The question presented is:

Whether the Eighth Amendment permits a

juvenile to be sentenced to life without parole under a

system that did not afford the sentencing court

discretion to choose any other option.

(i)

ii

PARTIES TO THE PROCEEDING

Petitioner in this Court is Lonnie Allen Bassett,

who was the real party in interest in the proceedings

below.

Respondent is the State of Arizona, which was the

petitioner in the proceedings below.

iii

RELATED PROCEEDINGS

Supreme Court of the United States (U.S.):

 Lonnie Allen Bassett v. Arizona, No. 23A475

(Nov. 29, 2023) (granting application to extend

time to file petition for writ of certiorari)

Arizona Supreme Court (Ariz.):

 State ex rel. Mitchell v. Cooper et al., No. CR-220227, 535 P.3d 3 (Sept. 18, 2023)

Arizona Court of Appeals (Ariz. Ct. App.):

 State v. Bassett, No. 1 CA-SA 22-0152 (Aug. 10,

2022) (declining jurisdiction of State’s petition

for special action)

 State v. Bassett, No. 2 CA-CR 2016-0151-PR,

2016 WL 3211766 (June 9, 2016) (denying

petition for postconviction relief), petition for

review denied (Ariz. Jan. 10, 2017)

 State v. Bassett, No. 1 CA-CR 06-0088, 161 P.3d

1264 (July 24, 2007) (upholding convictions and

sentences on direct appeal), petition for review

denied (Ariz. Nov. 29, 2007)

Arizona Superior Court, Maricopa County (Ariz.

Super. Ct.):

 State v. Bassett, No. CR2004-005097-001 DT

(May 26, 2022) (denying State’s motion for

reconsideration)

 State v. Bassett, No. CR2004-005097-001 DT

(Apr. 28, 2022) (denying State’s motion to vacate

evidentiary hearing)

 State v. Bassett, No. CR2004-005097-001 DT

(June 13, 2018) (ordering evidentiary hearing)

 State v. Bassett, No. CR2004-005097-001 DT

(May 9, 2014) (denying postconviction relief)

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ..................................... iii

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

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTION ......................................................... 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................ 5

STATEMENT OF THE CASE ................................... 5

A. Legal Background ............................................ 5

B. Procedural Background ................................... 9

REASONS FOR GRANTING THE PETITION ....... 14

I.

THE ARIZONA SUPREME COURT’S DECISION

DEFIES THIS COURT’S PRECEDENTS.................... 14

A. Arizona’s Sentencing Laws Imposed

Mandatory Life Without Parole For

Juveniles, Violating Miller,

Montgomery, And Jones ................................ 15

B. The Arizona Supreme Court Erred In

Refusing To Apply Miller, Montgomery,

And Jones ....................................................... 18

C. The Arizona Supreme Court Made The

Same Error This Court Reversed In

Lynch .............................................................. 24

II.

THE ARIZONA SUPREME COURT’S DECISION

SPLITS WITH OTHER STATE HIGH COURTS ......... 26

v

TABLE OF CONTENTS—Continued

Page

III. THIS PETITION PROVIDES AN IDEAL VEHICLE

TO ADDRESS THIS IMPORTANT QUESTION ........... 33

CONCLUSION .......................................................... 37

APPENDIX

APPENDIX A—Arizona Supreme Court

Decision Denying Post-Conviction Relief

(Sept. 18, 2023) ................................................... 1a

APPENDIX B—Superior Court of Arizona,

Maricopa County, Ruling Denying State’s

Motion to Vacate Evidentairy Hearing and

Dismiss Petition (Apr. 28, 2022) ...................... 32a

APPENDIX C—Statutory Provisions Involved ..... 42a

vi

TABLE OF AUTHORITIES

Page(s)

CASES:

Aguilar v. Thornell,

No. 22-6023, 143 S. Ct. 1757 (2023) .................... 34

Arias v. Arizona,

No. 15-9044, 580 U.S. 951 (2016) .......................... 6

Bear Cloud v. State,

294 P.3d 36 (Wyo. 2013) ................................ 28, 29

Cruz v. Arizona,

598 U.S. 17 (2023) ............................ 3, 8, 17, 18, 25

DeShaw v. Arizona,

No. 15-9057, 580 U.S. 951 (2016) .......................... 6

Diatchenko v. Dist. Att’y for Suffolk Dist.,

1 N.E.3d 270 (Mass. 2013) ................................... 32

Ex parte Williams,

244 So. 3d 100 (Ala. 2017) ................................... 32

Horsley v. State,

160 So. 3d 393 (Fla. 2015) ................................... 33

Jackson v. Norris,

378 S.W.3d 103 (Ark. 2011) ................................. 21

Jackson v. Norris,

426 S.W.3d 906 (Ark. 2013) ................................. 32

Jackson v. State,

883 N.W.2d 272 (Minn. 2016) .............................. 32

Jessup v. Shinn,

31 F.4th 1262 (9th Cir. 2022) .............................. 33

Jessup v. Thornell,

No. 22-5889, 143 S. Ct. 1755 (2023) .................... 34

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Jones v. Mississippi,

141 S. Ct. 1307 (2021) .... 1-3, 6-8, 13-23, 28, 33, 36

Lynch v. Arizona,

578 U.S. 613 (2016) ...................... 3, 4, 8, 18, 25, 26

Miller v. Alabama,

567 U.S. 460 (2012) .. 1-2, 5-6, 14-16, 18, 21, 23, 26

Montgomery v. Louisiana,

577 U.S. 190 (2016) ............................ 1, 6, 9, 15, 16

Najar v. Arizona,

No. 15-8878, 580 U.S. 951 (2016) .......................... 6

Parker v. State,

119 So. 3d 987 (Miss. 2013) ................. 7, 17, 27, 28

People v. Boykin,

987 N.W.2d 58 (Mich. 2022) ................................ 32

People v. Davis,

6 N.E.3d 709 (Ill. 2014) ........................................ 32

Petition of State,

103 A.3d 227 (N.H. 2014)..................................... 32

Purcell v. Arizona,

No. 15-8842, 580 U.S. 953 (2016) .......................... 6

Rojas v. Thornell,

No. 22-5961, 143 S. Ct. 1757 (2023) .................... 34

Roper v. Simmons,

543 U.S. 551 (2005) .............................................. 10

Rue v. Thornell,

No. 22-6027, 143 S. Ct. 1758 (2023) .................... 34

Simmons v. South Carolina,

512 U.S. 154 (1994) .............................................. 25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

State v. Arias,

No. 1 CA-CR 22-0064 PRPC, 2022 WL

3973488 (Ariz. Ct. App. Sept. 1, 2022) ................ 12

State v. Cabanas,

No. 1 CA-CR 21-0534 PRPC, 2022 WL

2205273 (Ariz. Ct. App. June 21, 2022) .............. 12

State ex rel. Carr v. Wallace,

527 S.W.3d 55 (Mo. 2017) (en banc) .................... 32

State v. Castaneda.

842 N.W.2d 740 (Neb. 2014) .......................... 29, 30

State v. Cruz,

487 P.3d 991 (Ariz. 2021)......................... 3, 8, 9, 18

State v. Jensen,

894 N.W.2d 397 (S.D. 2017)................................. 32

State v. Lynch,

357 P.3d 119 (Ariz. 2015)....................................... 3

State v. McCleese,

215 A.3d 1154 (Conn. 2019) ................................. 32

State v. Montgomery,

194 So. 3d 606 (La. 2016) (per curiam) ............... 33

State v. Odom,

No. 1 CA-CR 21-0537 PRPC, 2022 WL

4242815 (Ariz. Ct. App. Sept. 15, 2022) .............. 12

State v. Ragland,

836 N.W.2d 107 (Iowa 2013).......................... 31, 32

State v. Thieszen,

887 N.W.2d 871 (2016)......................................... 30

State v. Valencia,

386 P.3d 392 (Ariz. 2016)................................. 9, 10

ix

TABLE OF AUTHORITIES—Continued

Page(s)

State v. Wagner,

510 P.3d 1083 (Ariz. Ct. App. 2022) .............. 11, 20

State v. Young,

794 S.E.2d 274 (N.C. 2016) ............................ 30, 31

Tatum v. Arizona,

No. 15-8850, 580 U.S. 952 (2016) .......................... 6

CONSTITUTIONAL PROVISIONS:

U.S. Const. amend. VIII .............................................. 5

U.S. Const. amend. XIV .............................................. 5

U.S. Const. art. VI, para. 2 ......................................... 5

STATUTES:

28 U.S.C. § 1257(a) ...................................................... 4

Ala. Code § 15-22-36(a) (1983) .................................. 21

Ariz. Rev. Stat. § 13-703(A) (2003) ................. 8, 10, 17

Ariz. Rev. Stat. § 13-703.01(A) (2003) .................. 8, 17

Ariz. Rev. Stat. § 13-716 (2014) .................................. 9

Ariz. Rev. Stat. § 13-1105(C) (2002) ..................... 8, 17

Ariz. Rev. Stat. § 41-1604.09(I) (1994) ....................... 8

Ariz. Rev. Stat. § 41-1604.09(I)(2) (2014) ................... 9

Ark. Code § 5-4-606 (1975) ........................................ 21

Miss. Code § 97-3-21(1) (2007) .................................. 27

Miss. Code § 97-3-21(3) (2006) .................................. 27

Wyo. Stat. § 6-2-101(b) (2009)................................... 28

RULES:

Ariz. R. Crim. P. 32.1(g) ............................................ 10

Ariz. R. Crim. P. 32.8 (2017) ....................................... 9

IN THE

Supreme Court of the United States

No. _____

LONNIE ALLEN BASSETT,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

On Petition for a Writ of Certiorari to the

Arizona Supreme Court

PETITION FOR A WRIT OF CERTIORARI

Petitioner Lonnie Allen Bassett respectfully

petitions for a writ of certiorari to review the

judgment of the Arizona Supreme Court.

INTRODUCTION

This petition is brought by a defendant sentenced

as a juvenile to mandatory life without parole in

Arizona, even though this Court’s precedents dictate

that mandatory life-without-parole sentences for

juveniles violate the Eighth Amendment.

This Court has made clear that the Constitution

“prohibits mandatory life-without-parole sentences

for murderers under 18.” Jones v. Mississippi, 141 S.

Ct. 1307, 1312 (2021); see Miller v. Alabama, 567 U.S.

460, 470 (2012); Montgomery v. Louisiana, 577 U.S.

190, 195, 206 (2016). The Constitution permits a life(1)

2

without-parole sentence “only if ” state law affords the

sentencer “discretion to impose a lesser sentence than

life without parole.” Jones, 141 S. Ct. at 1311, 1318.

“[A] State’s discretionary sentencing system is both

constitutionally necessary and constitutionally

sufficient.” Id. at 1313.

The

logic

underpinning

that

rule

is

straightforward: “children are constitutionally

different from adults for purposes of sentencing.”

Miller, 567 U.S. at 471. A discretionary sentencing

procedure ensures that the sentencer considers the

defendant’s youth in deciding whether the defendant

should spend the rest of his life in prison without any

possibility of parole.

And data bears out the

conclusion that “a discretionary sentencing

procedure” makes “life-without-parole sentences

relatively rare.” Jones, 141 S. Ct. at 1318.

This Court recognized in Miller that Arizona was

one of “29 jurisdictions” with sentencing laws that

unconstitutionally “mandat[ed] life without parole for

children.” 567 U.S. at 482, 486-487 & nn.9, 13, 15.

The Arizona Supreme Court therefore initially

responded to Miller and Montgomery by ordering

hearings to determine whether defendants given

mandatory life-without-parole sentences were

entitled to relief.

After this Court decided Jones, however, the

Arizona Supreme Court overruled its precedent and

concluded it was not obligated to provide relief from

mandatory life-without-parole sentences after all.

Although this Court in Jones made clear—

repeatedly—that it did “not overrule Miller or

Montgomery,” 141 S. Ct. at 1321, the Arizona

Supreme Court treated Jones as doing just that.

3

Notwithstanding Jones’s holding that juvenile lifewithout-parole sentences are permissible only if the

sentencer “has discretion to impose a lesser

punishment,” id. at 1311, the Arizona Supreme Court

has now blessed juvenile life-without-parole sentences

even though it is undisputed that the sentencer lacked

discretion to impose a lesser punishment.

This petition arises from the Arizona Supreme

Court’s published decision announcing its new

interpretation of this Court’s opinion in Jones.

Petitioner Lonnie Allen Bassett was sentenced to life

without parole under a system that did not afford the

sentencing court discretion to choose any other option.

It is undisputed that Arizona had abolished parole for

homicide defendants during the relevant period. And

it is undisputed that the “only alternative sentence to

death” in Arizona “was life imprisonment without

parole.” Lynch v. Arizona, 578 U.S. 613, 614 (2016)

(per curiam). In the decision below, the Arizona

Supreme Court nonetheless refused to apply Jones,

Miller, and Montgomery, and declined to order relief

from Bassett’s unconstitutional sentence.

In a decision reminiscent of the Arizona Supreme

Court’s other recent refusals to apply this Court’s

precedent in State v. Lynch, 357 P.3d 119 (Ariz. 2015),

rev’d, 578 U.S. 613 (2016) (per curiam), and State v.

Cruz, 487 P.3d 991 (Ariz. 2021), rev’d, 598 U.S. 17

(2023), the Arizona Supreme Court’s opinion below

flouts this Court’s precedents and defies this Court’s

assurance that Jones did not overrule Miller and

Montgomery. Worse, the Arizona Supreme Court’s

decision—which conflates the availability of parole

with the availability of executive clemency—repeats

the very same error this Court already summarily

4

reversed in Lynch. See 578 U.S. at 614. In refusing

to follow this Court’s precedents, the decision below

diverges from the decisions of state high courts in

Mississippi, Wyoming, Nebraska, North Carolina,

and Iowa—all of which have concluded that their

similar sentencing schemes imposed mandatory life

without parole and were thus unconstitutional.

The Arizona Supreme Court’s refusal to follow the

same approach here creates a square conflict on an

important constitutional issue with enormous stakes

for Bassett, for other defendants whose Miller claims

Arizona courts have since rejected, and for still other

defendants with Miller claims pending in Arizona.

Just as in Lynch and Cruz, Arizona once again stands

alone in its refusal to grant the relief dictated by this

Court’s precedents.

This Court should grant the petition.

OPINIONS BELOW

The Arizona Supreme Court’s decision denying

Bassett’s petition for postconviction relief is reported

at 535 P.3d 3. Pet. App. 1a-31a. The Arizona trial

court’s decision denying the State’s motion to dismiss

the petition is unpublished. Id. at 32a-41a.

JURISDICTION

The Arizona Supreme Court entered judgment

against Bassett on September 18, 2023. Pet. App. 1a,

31a. This Court granted Bassett’s timely application

to extend the time to file a petition for a writ of

certiorari to January 31, 2024. No. 23A475 (Nov. 29,

2023). This Court’s jurisdiction is invoked under 28

U.S.C. § 1257(a).

5

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Eighth Amendment, U.S. Const. amend. VIII,

provides:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted.

The Fourteenth Amendment, U.S. Const. amend.

XIV, provides in relevant part:

No state shall * * * deprive any person of life,

liberty, or property, without due process of

law.

The Supremacy Clause, U.S. Const. art. VI, para.

2, provides in relevant part:

This Constitution, and the Laws of the

United States which shall be made in

Pursuance thereof * * * shall be the supreme

Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in

the Constitution or Laws of any State to the

Contrary notwithstanding.

Pertinent statutory provisions are set out in the

Petition Appendix. Pet. App. 42a-43a.

STATEMENT OF THE CASE

A. Legal Background

1. In Miller v. Alabama, this Court held that

“mandatory

life-without-parole

sentences

for

juveniles violate the Eighth Amendment.” 567 U.S. at

470.

As the Court explained, “children are

constitutionally different from adults for purposes of

sentencing.” Id. at 471. The Constitution thus

requires that the sentencing authority have

6

“discretion to impose a different punishment.” Id. at

465. And although “[a] State is not required to

guarantee eventual freedom,” its sentencing scheme

at least “must provide some meaningful opportunity

to obtain release.” Id. at 479 (citation and quotation

marks omitted).

Miller identified “29 jurisdictions mandating life

without parole for children”—including Arizona. Id.

at 482, 486-487 & nn.9, 13, 15. Miller “overrule[d]”

those sentencing schemes. Id. at 514 (Alito, J.,

dissenting).

2. In Montgomery v. Louisiana, this Court

reiterated Miller’s holding that “mandatory life

without parole for juvenile homicide offenders violates

the Eighth Amendment’s prohibition on cruel and

unusual punishments” and held that Miller applied

retroactively in cases on collateral review. 577 U.S. at

195, 206 (citation and quotation marks omitted). This

Court subsequently vacated several Arizona court

orders dismissing claims for postconviction relief

under Miller, ordering further consideration in light

of Montgomery. See Tatum v. Arizona, No. 15-8850,

580 U.S. 952 (2016); Arias v. Arizona, No. 15-9044,

580 U.S. 951 (2016); DeShaw v. Arizona, No. 15-9057,

580 U.S. 951 (2016); Najar v. Arizona, No. 15-8878,

580 U.S. 951 (2016); Purcell v. Arizona, No. 15-8842,

580 U.S. 953 (2016).

3. In Jones v. Mississippi, this Court yet again

explained that “an individual who commits a homicide

when he or she is under 18 may be sentenced to life

without parole, but only if the sentence is not

mandatory and the sentencer therefore has discretion

to impose a lesser punishment.” 141 S. Ct. at 1311

(emphasis added).

The Constitution “prohibits

7

mandatory

life-without-parole

sentences

for

murderers under 18, but * * * allow[s] discretionary

life-without-parole sentences for those offenders.” Id.

at 1312.

Jones highlighted the difference between

(impermissible)

mandatory

and

(permissible)

discretionary life-without-parole sentencing schemes.

When the defendant in Jones was first sentenced, the

punishment for homicide under Mississippi law was

“imprisonment for life.” Parker v. State, 119 So. 3d

987, 996 (Miss. 2013). And although that statute did

“not carry a specific sentence of life without parole,” a

separate statute eliminated parole for homicide

offenders.

Id. at 996-997.

Those “legislative

mandates, when read together, [were] tantamount to

life without parole” such that Mississippi’s “statutory

scheme * * * contravene[d] the dictates of Miller.” Id.

at 997.

This Court thus agreed that “[u]nder

Mississippi law at the time, murder carried a

mandatory sentence of life without parole.” Jones,

141 S. Ct. at 1312.

But “[i]n the wake of Miller, the Mississippi

Supreme Court * * * ordered a new sentencing

hearing where the sentencing judge could consider [a

juvenile defendant’s] youth and exercise discretion in

selecting an appropriate sentence.” Id. at 1312-13.

This Court held that this revised “discretionary

sentencing system [wa]s both constitutionally

necessary and constitutionally sufficient,” and

rejected any additional fact-finding requirement. Id.

at 1313. This Court’s decision “carefully follow[ed]

both Miller and Montgomery” and emphasized

repeatedly that it did “not overrule” either case. Id. at

1321. “Miller held that a State may not impose a

8

mandatory life-without-parole sentence on a

murderer under 18,” and Jones did “not disturb that

holding.” Id.

4. During the period relevant here, Arizona

provided two alternatives to death for defendants

convicted of first-degree murder—“natural life,”

under which a defendant was categorically ineligible

for “commutation, parole, * * * or release from

confinement on any basis,” and “life,” which required

a defendant to serve at least 25 years before he could

be eligible for “release[ ] on any basis.” Ariz. Rev. Stat.

§ 13-703(A) (2003); see id. §§ 13-703.01(A) (2003),

13-1105(C) (2002). As in Mississippi, a separate

provision of Arizona law abolished parole for felons as

of January 1, 1994. Id. § 41-1604.09(I) (1994). Thus,

“the only ‘release’ available under Arizona law is

executive clemency, not parole.” Cruz v. Arizona, 598

U.S. 17, 23 (2023). And so, although Arizona’s

sentencing statute “continued to list two alternatives

to death,” id. at 21, Arizona has repeatedly

“acknowledged that [the] only alternative sentence to

death was life imprisonment without parole,” Lynch,

578 U.S. at 614 (emphasis added); see also Cruz, 487

P.3d at 994 (recognizing that “defendants were thus

essentially sentenced to life without the possibility of

parole”). Indeed, Arizona told this Court in an amicus

brief filed in Miller that its laws “make the

punishment mandatory.” States Amicus Br. 1, Miller

v. Alabama, Nos. 10-9646, 10-9647 (Feb. 21, 2012); see

Alabama Br. 16-19, Miller v. Alabama, No. 10-9646

(Feb. 14, 2012) (listing Arizona as among the

“jurisdictions requir[ing], at a minimum, a sentence of

life without parole”); Arkansas Br. App. C, Jackson v.

Hobbs, No. 10-9647 (Feb. 14, 2012) (same).

9

5. After Miller, Arizona reinstated parole for some

juvenile offenders—those who had received life

sentences with possible release after 25 years. Ariz.

Rev. Stat. §§ 13-716 (2014), 41-1604.09(I)(2) (2014); cf.

Montgomery, 577 U.S. at 212 (“A State may remedy a

Miller violation by permitting juvenile homicide

offenders to be considered for parole, rather than by

resentencing them.”). As for juveniles who had

received natural life sentences, the Arizona Supreme

Court held they were entitled to evidentiary hearings

to determine if resentencing was required. See State

v. Valencia, 386 P.3d 392, 396 (Ariz. 2016); Ariz. R.

Crim. P. 32.8 (2017). The court acknowledged that

Arizona law “did amount to sentences of life without

the possibility of parole.” Valencia, 386 P.3d at 394;

see also Cruz, 487 P.3d at 994 (noting that “the law in

place at the time [juvenile] defendants were sentenced

permitted what Miller later precluded”).

That

remained the law in Arizona until the decision below,

which overruled Valencia.

B. Procedural Background

1. Petitioner Lonnie Allen Bassett had a horrific

childhood. As a young child, Bassett was abandoned

by his mother, kidnapped and abused by his father,

and was kept in a closet with just one meal a day. See

Pet. App. 5a-6a; see also Bassett Sentencing Mem. Ex.

E, 02/13/2002 Psych. Eval.

Bassett was later

diagnosed with posttraumatic stress disorder and

prescribed medication. In 2004, at the age of 16, and

during a period when he had stopped taking his

medication, Bassett fatally shot two people. The

State’s notice of intent to seek the death penalty was

struck after this Court held that “the Eighth

Amendment prohibit[s] the imposition of the death

10

penalty on juveniles.” Roper v. Simmons, 543 U.S.

551, 570-571 (2005). Bassett was convicted of two

counts of first-degree murder. Pet. App. 33a.

When Bassett was sentenced in 2006, the

sentencing judge “did not have discretion” to choose a

sentence that would have allowed for parole.

Pet. App. 33a-34a & n.2; see id. at 11a. Arizona law

at that time “abolished parole” for homicide offenders.

Id. at 33a n.1, 11a. The trial court sentenced Bassett

to “natural life,” rendering him categorically ineligible

for “commutation, parole, * * * or release from

confinement on any basis.”

Ariz. Rev. Stat.

§ 13-703(A) (2003); see Pet. App. 10a, 33a. The trial

court also imposed an additional consecutive life

sentence with the possibility of “ ‘release’ after twentyfive years through the executive clemency process.”

Pet. App. 11a; see id. at 33a & n.1. Both convictions

and sentences were affirmed on appeal, and the

Arizona Supreme Court denied review. Id. at 11a.

Bassett’s subsequent petitions for postconviction

review were denied. Id. at 12a, 33a-34a.

2. In 2017, Bassett sought postconviction relief on

the ground that Miller and Montgomery constituted a

“significant change in the law” entitling him to relief

and resentencing. Id. at 12a-13a, 33a-34a; see Ariz. R.

Crim. P. 32.1(g). The State initially agreed that

Bassett was entitled to an evidentiary hearing under

the Arizona Supreme Court’s decision in Valencia.

Pet. App. 13a, 35a; Valencia, 386 P.3d at 396.

After this Court decided Jones, however, the State

claimed that Jones had revoked Bassett’s entitlement

to relief. The State argued that the scheme under

which Bassett was sentenced was not “mandatory”

under Miller because the court could have imposed a

11

punishment other than natural life—even though

parole was not an option and the only form of “release”

available was executive clemency. Pet. App. 35a, 38a.

The trial court rejected the State’s argument,

concluding that “Bassett was sentenced under a

mandatory natural life sentencing scheme that Miller

and Jones found to be unconstitutional,” as “the law

did not allow the sentencing judge to consider life with

the possibility of parole as an alternative to a sentence

of natural life.” Id. at 38a, 40a-41a. The trial court

explained that “executive clemency (or commutation)

is not a constitutionally adequate substitute for the

possibility of parole,” and Miller had already

“recognized the distinction” when it “counted Arizona

as one of 29 jurisdictions with mandatory LWP

sentences for juvenile homicide offenders, despite the

court’s ability to order life with possible release.” Id.

at 38a-39a. Because “[t]he sentencing laws under

which Mr. Bassett was sentenced did not allow for the

discretion – i.e. a sentence with the possibility of

parole – that Miller requires for a constitutionally

sound sentencing,” the trial court concluded that

Bassett was entitled to relief. Id. at 39a.

The Arizona Court of Appeals soon reached the

same conclusion in another case, holding that “[i]t

matters not whether the superior court had

‘discretion’ to impose alternative non-parole-eligible

penalties or whether the court considered the

defendant’s youth in exercising that discretion”;

“because the superior court had no discretion to

sentence [the defendant] to a parole-eligible term, his

sentence is encompassed by Miller.” State v. Wagner,

510 P.3d 1083, 1087 (Ariz. Ct. App. 2022), review

continued (Sept. 12, 2023). The Court of Appeals

12

subsequently granted relief in other cases involving

juveniles sentenced to mandatory life without parole.1

The State appealed the trial court’s decision in

Bassett’s case. Pet. App. 13a-14a. The Court of

Appeals declined jurisdiction, but the Arizona

Supreme Court granted review. Id. at 14a.

3. The Arizona Supreme Court reversed the trial

court and dismissed Bassett’s petition for

postconviction relief. The court acknowledged that

“Bassett was actually ineligible for parole” because

“the Arizona Legislature eliminated parole for all

offenses committed on or after January 1, 1994,”

meaning that “Bassett’s only option would have been

‘release’ after twenty-five years through the executive

clemency process.” Id. at 11a. The court nevertheless

held that Arizona’s sentencing scheme was “not

mandatory under Miller” because sentencing courts

had “a choice between two sentencing options”:

natural life, or life with possible “release” after 25

years—even though such “release” did not include

parole. In the Arizona Supreme Court’s view, the

possibility of executive clemency or a later change in

the law to create a system of parole sufficed because—

according to the court—“Miller and its progeny do not

specifically require the availability of parole when

sentencing a juvenile offender.” Id. at 19a, 23a.

1

See State v. Cabanas, No. 1 CA-CR 21-0534 PRPC, 2022 WL

2205273, at *1 (Ariz. Ct. App. June 21, 2022), review continued

(Sept. 12, 2023); State v. Arias, No. 1 CA-CR 22-0064 PRPC, 2022

WL 3973488, at *1 (Ariz. Ct. App. Sept. 1, 2022), review

continued (Sept. 12, 2023); State v. Odom, No. 1 CA-CR 21-0537

PRPC, 2022 WL 4242815, at *1 (Ariz. Ct. App. Sept. 15, 2022),

review continued (Sept. 12, 2023); cf. State v. Aston, No. 1 CA-SA

22-0068 (Ariz. Ct. App. May 19, 2022) (declining jurisdiction).

13

The Arizona Supreme Court also disputed this

Court’s categorization of Arizona in Miller as among

“29 jurisdictions mandating life without parole for

children” because Arizona law lists age as a statutory

mitigating factor that the sentencer must consider in

deciding whether to sentence a person convicted of

murder to death, natural life, or life with possible

release (through executive clemency) after 25 years.

Id. at 22a. But “even if an issue remained with

Arizona’s sentencing scheme,” the Arizona Supreme

Court claimed that the state legislature had

“remedied” the problem by reinstating parole for some

juveniles—even though the Arizona Supreme Court

admitted that this subsequent statutory change did

not apply to Bassett. Pet. App. 22a.

Despite this Court’s repeated statements in Jones

that it was not overruling Miller or Montgomery, see

141 S. Ct. at 1321, 1317 n.4, the Arizona Supreme

Court held that “Jones refuted the premise” for its

understanding that Miller and Montgomery required

relief, see Pet. App. 24a. The Arizona Supreme Court

accordingly dismissed Bassett’s petition for

postconviction relief.2

This petition follows.

2

Following its decision in Bassett, the Arizona Supreme Court

reversed and remanded numerous decisions in which the Arizona

Court of Appeals had granted relief under Miller to juvenile

defendants. The Court of Appeals has since reversed its earlier

decisions. See State v. Arias, No. 1 CA-CR 22-0064 PRPC (Ariz.

Ct. App. Sept. 25, 2023); State v. Odom, No. 1 CA-CR 21-0537

PRPC (Ariz. Ct. App. Sept. 25, 2023); State v. Cabanas, No. 1 CACR 21-0534 PRPC (Ariz. Ct. App. Dec. 6, 2023); State v. Wagner,

No. 1 CA-CR 21-0492 PRPC (Ariz. Ct. App. Dec. 20, 2023); State

v. Aston, No. 1 CA-SA 22-0068 (Ariz. Ct. App. Jan. 3, 2024).

14

REASONS FOR GRANTING THE PETITION

This Court in Miller counted Arizona as among the

“29 jurisdictions mandating life without parole for

children.” 567 U.S. at 482, 486-487 & nn.9, 13, 15.

And although this Court in Jones was clear that its

decision “does not overrule Miller or Montgomery,”

141 S. Ct. at 1321, the Arizona Supreme Court has

nevertheless effectively held that Miller and

Montgomery no longer apply in Arizona.

The decision below is wrong. Miller, Montgomery,

and Jones concluded that the Constitution prohibits

mandatory life-without-parole sentences for juveniles.

To comply with the Constitution, the sentencing

authority must have discretion to impose a lesser

punishment. Nothing in Jones relieved Arizona of its

obligation to correct the unconstitutional sentences

meted out prior to Miller pursuant to the State’s

mandatory life-without-parole sentencing scheme.

The Arizona Supreme Court’s refusal to abide by this

Court’s precedents creates a square split by departing

from the approach that at least five other state high

courts have taken in similar circumstances.

This petition is an ideal vehicle for addressing the

Arizona Supreme Court’s error, and it presents a

question of profound importance for Bassett, for other

prisoners given mandatory life-without-parole

sentences as juveniles whose claims have been

summarily denied since the decision below issued, and

for at least 20 other prisoners with similar claims.

I.

THE ARIZONA SUPREME COURT’S DECISION

DEFIES THIS COURT’S PRECEDENTS.

This Court’s precedents should have led the

Arizona Supreme Court to the straightforward

15

conclusion that Arizona’s sentencing laws violated the

Eighth Amendment by imposing mandatory lifewithout-parole sentences on juveniles.

A. Arizona’s Sentencing Laws Imposed

Mandatory Life Without Parole For

Juveniles, Violating Miller, Montgomery,

And Jones.

1. Miller was clear: “mandatory life-withoutparole sentences for juveniles violate the Eighth

Amendment.” 567 U.S. at 470. This Court reaffirmed

that holding in Montgomery, 577 U.S. at 195

(“mandatory life without parole for juvenile homicide

offenders violates the Eighth Amendment[ ]”), and

again in Jones, 141 S. Ct. at 1312 (“[t]he Eighth

Amendment prohibits mandatory life-without-parole

sentences for murderers under 18”).

Although mandatory life-without-parole sentences

for juveniles violate the Constitution, this Court has

also been clear that discretionary life-without-parole

sentences do not.

A “discretionary sentencing

procedure” is one “where the sentencer can consider

the defendant’s youth and has discretion to impose a

lesser sentence than life without parole.” Jones, 141

S. Ct. at 1318. To avoid the constitutional bar on

mandatory

life-without-parole

sentences,

the

sentencing authority therefore “must have ‘discretion

to impose a different punishment’ than life without

parole.” Id. at 1316 (quoting Miller, 567 U.S. at 465)

(emphasis added).

This Court in Jones explained why “a State’s

discretionary

sentencing

system

is

both

constitutionally necessary and constitutionally

sufficient.”

141 S. Ct. at 1313.

“States with

discretionary sentencing regimes” honor the “key

16

assumption of both Miller and Montgomery,” which

“was that discretionary sentencing allows the

sentencer to consider the defendant’s youth, and

thereby helps ensure that life-without-parole

sentences are imposed only in cases where that

sentence is appropriate in light of the defendant’s

age.” Id. at 1318. Indeed, Miller “relied on data, not

speculation,” “in concluding that a discretionary

sentencing procedure would help make life-withoutparole sentences relatively rare.” Id. And Jones

observed that “Miller’s discretionary sentencing

procedure has resulted in numerous sentences less

than life without parole for defendants who otherwise

would have received mandatory life-without-parole

sentences.” Id. at 1322. Jones highlighted that in

Mississippi—which once mandated life-withoutparole

sentences—“Miller

resentencings”

had

“reduced life-without-parole sentences for murderers

under 18 by about 75 percent.” Id. at 1322, 1312.

Because

the

Constitution

“require[s]

a

discretionary sentencing procedure,” id. at 1322, this

Court held that the two sentencing schemes before it

in Miller—those of Arkansas and Alabama—were

unconstitutional “mandatory-sentencing schemes,”

567 U.S. at 466, 469, 489. Those two States were

among the “29 jurisdictions mandating life without

parole for children”—a list that this Court noted also

included Louisiana, Mississippi, and Arizona. Miller,

567 U.S. at 482, 486-487 & nn.9, 13, 15; Miller,

Alabama Br. 17-18. In Montgomery, this Court held

that Miller applied retroactivity to invalidate

mandatory

life-without-parole

sentences

in

Louisiana. 577 U.S. at 194, 213. The Mississippi

Supreme Court, meanwhile, acknowledged that its

mandatory-life-without-parole scheme “contravene[d]

17

the dictates of Miller” and ordered resentencing

hearings in which the judge was permitted to “enter a

sentence of life imprisonment with eligibility for

parole.” Parker, 119 So. 3d at 997, 999 (quotation

marks omitted). This Court accordingly upheld a lifewithout-parole sentence in Jones precisely because

Mississippi sentencing courts now “had discretion

under Miller to impose a sentence less than life

without parole.” Jones, 141 S. Ct. at 1313.

This Court’s decisions in Miller, Montgomery, and

Jones thus establish that discretionary sentencing—

the sentencer’s ability “to impose a lesser sentence

than life without parole”—is “constitutionally

necessary” for juvenile homicide defendants. Id. at

1313, 1318.

2. During the period relevant here, Arizona law

provided two alternatives to a death sentence for

defendants convicted of first-degree murder: “natural

life,” under which a defendant was categorically

ineligible for “commutation, parole, * * * or release

from confinement on any basis,” and “life,” which

required a defendant to serve at least 25 years before

he could be eligible for “release[ ] on any basis.” Ariz.

Rev. Stat. § 13-703(A) (2003); see id. §§ 13-703.01(A)

(2003), 13-1105(C) (2002). But because a separate

provision of Arizona law abolished parole for felons as

of 1994, “the only ‘release’ available under Arizona

law [wa]s executive clemency, not parole.” Cruz, 598

U.S. at 23.

As a result of these statutes, Arizona “sentencing

court[s] did not have discretion to order life with

parole because the State abolished parole.” Pet. App.

33a-34a n.2. And as this Court has made clear,

although Arizona law “[n]evertheless” “continued to

18

list two alternatives to death,” Cruz, 598 U.S. at 21,

the “only alternative sentence to death was life

imprisonment without parole,” Lynch, 578 U.S. at 614

(emphasis added); see also Cruz, 487 P.3d at 994

(recognizing that under Arizona law, “defendants

were thus essentially sentenced to life without the

possibility of parole”). Indeed, Arizona told this Court

in an amicus brief filed in Miller that its laws made

life-without-parole

sentences

“mandatory”

for

juveniles convicted of first-degree murder. See Miller

States Amicus Br. 1; see also Miller, Alabama Br.

16-19; Jackson, Arkansas Br. App. C. And this Court

in Miller listed Arizona as among the 29 jurisdictions

that subjected juveniles to unconstitutional

mandatory life-without-parole sentences. 567 U.S. at

482, 486-487 & nn.9, 13, 15.

Because the only sentence available under Arizona

law at the time of Bassett’s sentencing was “life

imprisonment without parole,” Lynch, 578 U.S. at

614, sentencing courts in Arizona lacked “discretion to

impose a lesser sentence than life without parole,”

Jones, 141 S. Ct. at 1318. That makes Arizona’s

sentencing

scheme

“mandatory”—and

thus

unconstitutional for juvenile defendants.

B. The Arizona Supreme Court Erred In

Refusing To Apply Miller, Montgomery,

And Jones.

Despite this Court’s precedents, and despite

acknowledging that juveniles were “actually ineligible

for parole” because “the Arizona Legislature

eliminated parole,” the Arizona Supreme Court

nevertheless concluded that the State’s sentencing

scheme “was not mandatory under Miller.” Pet. App.

11a, 23a. It reached that conclusion by relying on the

19

fact that Arizona’s sentencing scheme included two

nominal alternatives to death: natural life and life

with possible “release” after 25 years. According to

the Arizona Supreme Court, it was enough that

sentencing courts could “ma[ke] a choice between two

sentencing options”—even though neither “option”

included parole. Pet. App. 23a. That Arizona had

“eliminated parole” did not matter, the court

reasoned, because “Miller and its progeny do not

specifically require the availability of parole when

sentencing a juvenile offender.” Pet. App. 11a, 19a.

That conclusion cannot be reconciled with this

Court’s precedents. As this Court has made clear, a

sentencer must have “discretion to impose a lesser

sentence than life without parole.” Jones, 141 S. Ct. at

1318 (emphasis added).

It is constitutionally

irrelevant whether a sentencing statute provides

multiple sentencing options if each option dictates life

without parole.

The Arizona Supreme Court cited four arguments

in support of its conclusion that there was no

constitutional defect in Arizona’s sentencing scheme.

The Arizona Supreme Court is wrong on all four

counts.

First, the Arizona Supreme Court concluded that a

choice between two life-without-parole sentences was

sufficient because, according to the court, “the

availability of parole” is “not specifically require[d]” to

comply with Miller. Pet. App. 19a. The Arizona

Supreme Court cited Jones for that point, but Jones

says the opposite. In Jones, this Court held that a

juvenile homicide offender “may be sentenced to life

without parole, but only if the sentence is not

mandatory,” meaning that “the sentencer therefore

20

has discretion to impose a lesser punishment” than

life without parole. 141 S. Ct. at 1311 (emphases

added). This Court “firmly” reiterated that “Miller

held that a State may not impose a mandatory lifewithout-parole sentence on a murderer under 18” and

that “[t]oday’s decision does not disturb that holding.”

Id. at 1321. Thus, the availability of parole at the

time of sentencing is precisely what makes a sentence

of life without parole discretionary.

The facts of Jones confirm that conclusion. When

the defendant in that case was originally sentenced,

“[u]nder Mississippi law at the time, murder carried a

mandatory sentence of life without parole.” Id. at

1312 (emphases altered). But the defendant was

afforded a “Miller resentencing[ ]” in which “the

sentencing judge acknowledged that he had discretion

under Miller to impose a sentence less than life

without parole.” Id. at 1313, 1322 (emphasis added).

That the sentencing judge had direction to choose a

sentence with parole, but nevertheless chose a

sentence of life without parole, is “the discretionary

sentencing procedure” necessary to satisfy Miller. Id.

at 1311.

The Arizona Court of Appeals understood that

premise when it concluded in another case that

“Miller’s use of ‘mandatory’—as well as the

understanding of its counterpart, ‘discretionary’—

must be read in the context of whether a paroleeligible sentence is available.” Wagner, 510 P.3d at

1087 (emphasis added). So did the postconviction trial

court in this case when it concluded that Bassett was

entitled to relief because “the sentencing court could

not have legally imposed a sentence that included the

possibility of parole.” Pet. App. 39a. The Arizona

21

Supreme Court’s contrary conclusion conflicts with

Miller, Montgomery, and Jones.

Second, the Arizona Supreme Court suggested

that a choice between two life-without-parole

sentences suffices to meet Miller’s requirements

because one of those sentences included the possibility

of executive clemency. Pet. App. 11a, 23a.

This Court’s decisions in Miller, Montgomery, and

Jones all refute the contention that the possibility of

executive clemency—without the possibility of

parole—satisfies Miller. All three States in those

cases provided for the possibility of executive

clemency for juvenile offenders, yet that possibility

did not make their mandatory life-without-parole

sentencing schemes any less mandatory (or any less

unconstitutional). See Ark. Code § 5-4-606 (1975);

Jackson v. Norris, 378 S.W.3d 103, 107 (Ark. 2011)

(Brown, J., concurring) (juvenile’s “only remedy to

avoid spending the rest of his life in prison after the

conviction for capital murder is executive clemency

from the governor”), rev’d, Miller, 567 U.S. 460; Ala.

Code § 15-22-36(a) (1983); Miller, Alabama Br. 61

(arguing that “executive or legislative clemency * * *

provide means for the State to account for the

defendant’s youth” (citation omitted)); Louisiana Br.

2, Montgomery v. Louisiana, No. 14-280 (Aug. 24,

2015) (juvenile’s “mandatory sentence of life without

possibility of parole” could be “commuted” (citing La.

Rev. Stat. § 15:574.4(B)(1) (1969))).

The same was true in Jones. This Court upheld

Mississippi’s revised sentencing scheme because the

Mississippi Supreme Court had ruled, in the wake of

Miller, that state judges must be afforded “discretion

to impose a sentence less than life without parole.”

22

141 S. Ct. at 1312-13.

After concluding that

Mississippi’s revised sentencing scheme complied

with the Eighth Amendment because it made lifewithout-parole sentences discretionary, this Court

observed that its decision was “far from the last word”

on whether the defendant would obtain relief because

other “state avenues for sentencing relief remain

open,” including petitioning “the state legislature,

state courts, or Governor.” Id. at 1323. If the

availability of executive clemency had sufficed, this

Court would have started and ended its opinion with

that fact.

This Court’s precedents thus make clear that the

possibility of release by executive clemency does not

transform a mandatory life-without-parole sentencing

regime into a discretionary system.

Third, the Arizona Supreme Court maintained

that Miller was satisfied because Arizona’s firstdegree murder statute lists age as one of several

mitigating factors to be considered when choosing

between a sentence of natural life (with no possibility

of executive clemency) and a sentence of life (with the

possibility of executive clemency), and because the

court said there was some consideration of Bassett’s

age in making this choice. Pet. App. 21a-22a.

According to the Arizona Supreme Court, that means

the sentencing scheme complied with Miller,

Montgomery, and Jones. See id.

Again, this Court’s precedents refute that

contention. To comply with Miller, the sentencing

judge was required to take into account Bassett’s age

when deciding whether to impose a lesser punishment

than life with parole—which the sentencing judge

could not do here. As this Court explained in Miller,

23

when a State offers no possible penalty other than life

without parole, the sentence remains impermissibly

mandatory because consideration of age “could not

change the sentence; whatever [is] said in mitigation,

the mandatory life-without-parole prison term would

kick in.” Miller, 567 U.S. at 488. This Court

reiterated the same conclusion in Jones, emphasizing

that the Eighth Amendment permits life-withoutparole sentences “only so long as the sentence is not

mandatory—that is, only so long as the sentencer has

discretion to consider the mitigating qualities of youth

and impose a lesser punishment.” 141 S. Ct. at 1314

(citation and quotation marks omitted) (emphasis

added).

Under this Court’s precedents, it is not sufficient

that the sentencer have discretion to consider age as

a mitigator; the sentencer must have authority to

implement that discretion by imposing a lesser,

parole-eligible punishment.

In this case, the

sentencing judge “did not have discretion to order life

with parole.”

Pet. App. 33a-34a n.2.

Any

consideration of age thus “could not change” Bassett’s

“mandatory life-without-parole prison term.” See

Miller, 567 U.S. at 488.

Jones makes clear that a State’s compliance with

the Eighth Amendment turns on whether a State’s

“sentencing regime[ ]” imposes “mandatory lifewithout-parole sentences,” 141 S. Ct. at 1312, 1318

(emphasis omitted), not on the nature of a state

judge’s “on-the-record sentencing explanation” in a

particular case, id. at 1320-21. It is “a State’s

discretionary sentencing system” that “is both

constitutionally necessary and constitutionally

sufficient.” Id. at 1313 (emphasis added). Otherwise,

24

the constitutionality of a state’s sentencing regime

would shift and spring depending on how much a

sentencing judge said about youth in each case—

exactly the result this Court in Jones sought to avoid.

Fourth, the Arizona Supreme Court concluded that

the possibility of some subsequent legal change

excused it from complying with Miller and

Montgomery. The Arizona legislature reinstated

parole in 2014 for certain juveniles, which the Arizona

Supreme Court concluded “remedied” any “issue * * *

with Arizona’s sentencing scheme,” “[r]egardless of

whether parole was available at th[e] time” Bassett

was sentenced. Pet. App. 22a.

But the Arizona Supreme Court did not dispute—

and in fact agreed—that “Bassett was actually

ineligible for parole” at the time he was sentenced

because “[i]n 1993, the Arizona Legislature

eliminated parole for all offenses committed on or

after January 1, 1994.” Pet. App. 11a. The court

likewise agreed that Bassett’s natural life sentence

meant that the Arizona Legislature’s 2014

amendments to its sentencing scheme did not apply to

him. Id. at 22a. Because the 2014 statutory

amendments do not provide relief to Bassett, this

subsequent legal change could not possibly cure the

constitutional violation in Bassett’s sentence.

C. The Arizona Supreme Court Made The

Same Error This Court Reversed In Lynch.

The decision below is not the first time the Arizona

Supreme Court has attempted to evade a

constitutional right that turns on the availability of

parole.

In a “series of cases,” the Arizona Supreme Court

held that “Arizona’s sentencing and parole scheme did

25

not trigger application” of this Court’s decision in

Simmons v. South Carolina, 512 U.S. 154 (1994).

Cruz, 598 U.S. at 20. Under Simmons, when “a

capital defendant’s future dangerousness is at issue,

and the only sentencing alternative to death available

to the jury is life imprisonment without possibility of

parole, due process entitles the defendant to inform

the jury of his parole ineligibility.” Id. at 21 (citation,

quotation marks, and brackets omitted).

In Lynch, this Court reviewed a decision of the

Arizona Supreme Court refusing to apply Simmons on

the ground that the defendant “could have received a

life sentence that would have made him eligible for

‘release’ after 25 years,” even though “the only kind of

release for which [the defendant] would have been

eligible—as the State does not contest—is executive

clemency.” Lynch, 578 U.S. at 615. This Court

summarily reversed. The Court held that “it was

fundamental error to conclude that Simmons ‘did not

apply’ in Arizona.” Cruz, 598 U.S. at 20 (quoting

Lynch, 578 U.S. at 615). In Lynch, this Court flatly

“rejected the argument that the possibility of

clemency diminishes a capital defendant’s right to

inform a jury of his parole ineligibility.” 578 U.S. at

615. And this Court squarely rejected the State’s

argument that “the potential for future ‘legislative

reform’ ” could justify refusing to inform the jury that

a defendant was parole ineligible. Id. at 616. “If it

were otherwise,” this Court explained, “a State could

always argue that its legislature might pass a law

rendering the defendant parole eligible” and thus

evade Simmons. Id.

The Arizona Supreme Court’s decision in this case

involves the same basic error—just in the context of a

26

different constitutional right. Like the due process

right in Simmons, the Eighth Amendment right in

Miller is triggered when the only available sentence is

life without parole. In both Lynch and the decision

below, “the Arizona Supreme Court confirmed that

parole was unavailable to [the defendant] under its

law.” Id.; see Pet. App. 11a, 33a-34a & nn.1-2. In both

contexts, a nominal choice between two life-withoutparole sentences does not render “Arizona’s

sentencing law sufficiently different from the others

this Court ha[s] considered” such that the

constitutional right at issue does “not apply.” Lynch,

578 U.S. at 615.

II.

THE ARIZONA SUPREME COURT’S DECISION

SPLITS WITH OTHER STATE HIGH COURTS.

In Miller, this Court identified “29 jurisdictions”

that unconstitutionally “mandat[ed] life without

parole for children.” 567 U.S. at 482, 486-487 & nn.9,

13, 15. Many of these States have since acknowledged

that their sentencing schemes were unconstitutional

and remedied the defect. The Arizona Supreme

Court’s refusal to do the same conflicts with those

decisions.

1. Five of these 29 jurisdictions argued after Miller

that

their

sentencing

schemes

were

not

unconstitutionally mandatory because they contained

some elements of discretion, even though judges

lacked discretion to impose parole-eligible sentences.

The high courts in all five of these States—

Mississippi, Wyoming, Nebraska, North Carolina,

and Iowa—rejected this argument. The Arizona

Supreme Court’s refusal to reach the same conclusion

makes it an extreme outlier.

27

Mississippi: In Parker v. State, the Mississippi

Supreme Court held that the state sentencing scheme

“contravene[d] the dictates of Miller.” 119 So. 3d at

997.

Mississippi law provided two alternative

sentences to death for capital murder: “imprisonment

for life * * * without parole,” or “imprisonment for

life * * * with eligibility for parole.” Miss. Code § 973-21(3) (2006). For non-capital first-degree murder,

the penalty was “imprisonment for life.” Id. § 97-321(1) (2007). As in Arizona, a separate provision of

Mississippi law eliminated parole for those convicted

of both capital and first-degree homicide, although

certain homicide offenders were permitted to apply for

conditional release at age 65. Parker, 119 So. 3d at

997.

The Mississippi Supreme Court concluded that

these “legislative mandates, when read together, are

tantamount to life without parole” and thus

“contravene[ ] the dictates of Miller.” Id. The court

rejected the State’s argument that the sentencing

scheme was not “mandatory” under Miller because

defendants convicted of first-degree murder were

eligible for conditional release. Id. at 995, 997. The

court explained that under state law, “[c]onditional

release is more akin to clemency, which the Supreme

Court has held ‘[a]s a matter of law’ to be different

from parole ‘despite some surface similarities.’ ” Id. at

997 (quoting Solem v. Helm, 463 U.S. 277, 300 (1983)).

Because juvenile defendants “would not be eligible for

parole” under state law, the court concluded that the

state’s sentencing scheme violated Miller. Id.

The Mississippi Supreme Court accordingly

vacated the defendant’s sentence and remanded for

resentencing. Id. at 998. The court specified that “if

28

the trial court should determine, after consideration

of all circumstances set forth in Miller, that [the

defendant] should be eligible for parole, the court

shall enter a sentence of ‘life imprisonment with

eligibility for parole.’ ” Id. at 999. Such discretion

thus “allow[ed] the trial courts of [Mississippi] to

comport with the requirements established by the

United States Supreme Court.” Id.

In Jones, the defendant appealed from a courtordered “Miller resentencing[ ]” in Mississippi, in

which “the sentencing judge * * * had discretion under

Miller to impose a sentence less than life without

parole.” Jones, 141 S. Ct. at 1313, 1322. This Court

held that Mississippi’s approach was permissible

under Miller. Although “[u]nder Mississippi law at

the time, murder carried a mandatory sentence of life

without parole,” the Mississippi Supreme Court’s

judicial fix meant that Mississippi had since joined

the States with “discretionary sentencing system[s],”

which this Court held was “both constitutionally

necessary and constitutionally sufficient.” Id. at

1312-13; see also id. at 1318, 1322.

Wyoming: In Bear Cloud v. State, the Wyoming

Supreme Court likewise held that its first-degree

murder statute violated Miller. 294 P.3d 36, 44-45

(Wyo. 2013). Like Arizona, Wyoming law offered two

alternatives to death for first-degree murder: “life

imprisonment without parole” or “life imprisonment

according to law.” Wyo. Stat. § 6-2-101(b) (2009). And

like Arizona law, separate provisions of Wyoming law

“prohibit[ed] parole for any person serving a life

sentence of either sort.” Bear Cloud, 294 P.3d at 44.

“Taking these * * * statutes together,” the

Wyoming Supreme Court concluded that “both

29

possible sentences for first-degree murder in

Wyoming violate[d] Miller’s prohibition against

mandatory sentences of life without the possibility of

parole for juveniles.” Id. at 45. Because “both

exclude[d] any real possibility of parole,” they “fail[ed]

to provide a sentencing court the discretion to

determine whether a juvenile homicide offender

should be eligible for parole at some point in the

future.” Id. at 45-46. The fact that trial courts had a

nominal choice between two sentences—one of which

left open the “the possibility of executive clemency”—

did not address the constitutional flaw in the

defendant’s sentence, because the “hope of executive

clemency” was no substitute for “the realistic

possibility of parole.” Id. And because neither of the

two non-death sentences permitted parole, Wyoming’s

sentencing regime “effectively mandate[d] a sentence

of life in prison without the possibility of parole for

juvenile offenders.” Id.

The Wyoming Supreme Court accordingly vacated

the defendant’s sentence and remanded for

resentencing, in which the sentencing court would be

afforded discretion “to order a sentence that includes

the possibility of parole.” Id. at 47.

Nebraska: In State v. Castaneda, the Nebraska

Supreme Court held that a sentence of life

imprisonment was “effectively life imprisonment

without parole” and thus unconstitutional under

Miller. 842 N.W.2d 740, 758 (Neb. 2014). Although

Nebraska’s sentencing statute imposing “life

imprisonment” for first-degree murder “did not

expressly contain the qualifier ‘without parole,’” a

separate provision of Nebraska law made clear that

“an offender sentenced to life imprisonment in

30

Nebraska for first degree murder is not eligible for

parole.” Id. at 757. The State argued that Nebraska’s

scheme did “not violate Miller” because defendants

could apply for “executive clemency in the form of

sentence commutation,” and “parole is possible in

Nebraska if the sentence is commuted to a term of

years.” Id. at 757-758.

The Nebraska Supreme Court rejected the State’s

argument that “the mere existence of a remote

possibility of parole”—one that hinged entirely on “the

availability of executive clemency”—could “keep

Nebraska’s sentencing scheme from falling within the

dictates of Miller.” Id. Rather, it sufficed that a

“sentence of life imprisonment is effectively life

imprisonment without parole.” Id. at 758. The

Nebraska Supreme Court ordered resentencing to

allow consideration of a parole-eligible sentence. Id.

at 762; see also State v. Thieszen, 887 N.W.2d 871, 876

(2016) (applying Castaneda on state collateral

review).

North Carolina: In State v. Young, the North

Carolina Supreme Court rejected a similar argument

that the possibility of executive clemency could save a

mandatory life-without-parole sentencing scheme.

794 S.E.2d 274, 276-280 (N.C. 2016). At the time of

the juvenile defendant’s conviction, “North Carolina

law required the mandatory imposition of life

imprisonment without parole for all offenders

convicted of first-degree murder.” Id. at 275-276

(citation omitted).

“Nevertheless, the State

contend[ed] that defendant [wa]s not entitled to

resentencing based upon Miller and Montgomery”

because, according to the State, the defendant’s

sentence was “not really life imprisonment without

31

parole because defendant may be able to obtain

release” through commutation. Id. at 276, 278

(citation and quotations marks omitted).

The North Carolina Supreme Court rejected this

“possibility of alteration or commutation” as sufficient

under Miller, concluding that it did “not reduce to any

meaningful degree the severity of a sentence of life

imprisonment without the possibility of parole.” Id.

at 279. Rather, because the juvenile defendant was

sentenced to “life without parole pursuant to a North

Carolina statute that did not permit the sentencing

court to consider a lesser punishment,” the sentence

was “prohibited by the Eighth Amendment.” Id.

(citation and quotation marks omitted). The North

Carolina Supreme Court ordered that the case be

remanded for resentencing. Id. at 279-280.

Iowa: In State v. Ragland, the Iowa Supreme

Court likewise confirmed that the State’s sentencing

scheme violated Miller, despite the possibility of

commutation. 836 N.W.2d 107, 118-122 (Iowa 2013).

Before Miller, the “only sentence” for first-degree

murder under Iowa law was for “the offender to be

committed to the department of corrections ‘for the

rest of the defendant’s life’ ”; the “sentencing court

ha[d] no power to defer the judgment, defer the

sentence, suspend the sentence, or reconsider the

sentence.” Id. at 118-119. “Clearly, the original

sentence imposed * * * was a mandatory sentence,”

the Iowa Supreme Court concluded, despite the

possibility that the Governor could “commute[ ] the

sentence to a term of years.” Id. at 119. “The mere

possibility of commutation or clemency is

fundamentally distinct from the eligibility for parole

and does not leave a juvenile offender a meaningful

32

opportunity to avoid a lifetime of incarceration.” Id.

at 120. The Iowa Supreme Court accordingly ordered

resentencing in which the trial court could choose

between “a life-without-parole sentence” and “a

sentence far less than life without parole.” Id. at 122.

2. In addition to the five state high courts that

have rejected arguments much like the position

adopted by the Arizona Supreme Court below, many

of the other 29 jurisdictions identified in Miller as

mandating life without parole for juveniles have

adopted judicial or legislative fixes to remedy their

mandatory life-without-parole sentencing regimes.

Many state high courts responded to Miller and

Montgomery by ordering resentencing in which the

sentencer was afforded discretion to choose a lesser

sentence than life without parole.3 Other state high

courts ordered that juveniles sentenced to mandatory

life without parole be considered for parole.4 Other

state legislatures established a retroactive parole

system 5 or required resentencing. 6 And other state

high courts applied similar legislative fixes

3

See, e.g., Ex parte Williams, 244 So. 3d 100, 101 (Ala. 2017);

Jackson v. Norris, 426 S.W.3d 906, 909-911 (Ark. 2013); People

v. Davis, 6 N.E.3d 709, 723 (Ill. 2014); State ex rel. Carr v.

Wallace, 527 S.W.3d 55, 62-63 (Mo. 2017) (en banc); Petition of

State, 103 A.3d 227, 230, 233 (N.H. 2014); State v. Jensen, 894

N.W.2d 397, 399 (S.D. 2017).

4

See, e.g., Diatchenko v. Dist. Att’y for Suffolk Dist., 1 N.E.3d

270, 282, 285-287 (Mass. 2013); Jackson v. State, 883 N.W.2d

272, 275 (Minn. 2016).

5

See, e.g., State v. McCleese, 215 A.3d 1154, 1161 (Conn. 2019)

(statute “retroactively provided parole eligibility to juvenile

offenders sentenced to more than ten years in prison”).

6

See, e.g., People v. Boykin, 987 N.W.2d 58, 62 n.2 (Mich.

2022).

33

retroactively.7 As this Court observed in Jones, these

changes mean that, “[b]y now, most offenders” have

already “received new discretionary sentences under

Miller.” 141 S. Ct. at 1317 n.4. These States

underscore Arizona’s position as an extreme outlier in

refusing to grant relief to defendants like Bassett

sentenced to life without parole as juveniles.

III. THIS PETITION PROVIDES AN IDEAL VEHICLE

TO ADDRESS THIS IMPORTANT QUESTION.

In Jones, this Court observed that “[b]y now, most

offenders who could seek collateral review as a result

of Montgomery have done so and, if eligible, have

received new discretionary sentences under Miller.”

141 S. Ct. at 1317 n.4. While that may be true for

most of the country, Arizona remains steadfast in its

refusal to correct mandatory life-without-parole

sentences, warranting this Court’s intervention.

1. This petition is an excellent vehicle to address

the Arizona Supreme Court’s refusal to grant the

relief required by Miller, Montgomery, and Jones. The

question presented was preserved in the proceedings

below and conclusively resolved by the Arizona

Supreme Court in a published opinion. Because the

Arizona Supreme Court’s review is discretionary, the

court is unlikely to revisit the issue in future cases,

making this case the ideal vehicle for addressing the

important question posed by this petition.

This Court has declined to review other petitions

raising the question presented on federal habeas

review. See, e.g., Jessup v. Shinn, 31 F.4th 1262 (9th

7

See, e.g., Horsley v. State, 160 So. 3d 393, 396, 405, 408 (Fla.

2015); State v. Montgomery, 194 So. 3d 606, 606-609 (La. 2016)

(per curiam).

34

Cir. 2022), cert. denied sub. nom., Jessup v. Thornell,

No. 22-5889, 143 S. Ct. 1755 (2023); Rojas v. Thornell,

No. 22-5961, 143 S. Ct. 1757 (2023); Rue v. Thornell,

No. 22-6027, 143 S. Ct. 1758 (2023); Aguilar v.

Thornell, No. 22-6023, 143 S. Ct. 1757 (2023). Unlike

those petitions, this Court’s review would not be

complicated by application of AEDPA’s deferential

standard. Indeed, this Court in recent years has

repeatedly granted certiorari to review the decisions

of state high courts on collateral review rather than

awaiting those cases on federal habeas.

Both

Montgomery and one of the consolidated cases in

Miller arose in this posture, and Jones addressed a

resentencing granted on collateral review. This

Court’s decision last Term in Cruz likewise arose on

collateral review from the Arizona Supreme Court.

2. This petition presents a question of profound

importance—for Bassett, for the defendants whose

Miller and Montgomery claims Arizona courts have

since rejected, and for other defendants with similar

claims pending in Arizona. As the Arizona Supreme

Court acknowledged below, “this case presents

recurring issues of statewide importance.”

See

Pet. App. 14a.

From 1994 to 2014, juveniles convicted of firstdegree murder in Arizona were sentenced to life

without parole under a sentencing scheme that

offered no other option. Other States with similar

mandatory-sentencing regimes have long since

implemented

discretionary

resentencing

or

reinstituted parole to comply with this Court’s

decisions in Miller, Montgomery, and Jones. Arizona

stands alone among its peer States in concluding that

35

Miller and Montgomery simply do not apply to

mandatory life-without-parole sentences.

After deciding Bassett’s case, the Arizona Supreme

Court reversed and remanded numerous cases

presenting the same issue. And, citing Bassett, the

Arizona Court of Appeals has since denied relief. See

supra nn.1 & 2. There are at least 15 other defendants

with comparable claims pending in Arizona on

collateral review. Because the Arizona Supreme

Court issued a published opinion in Bassett’s case,

Bassett’s case is the most appropriate vehicle for

addressing the question presented.

3. In addition to the immense importance of this

issue for Bassett, this case presents exceptionally

significant questions about gamesmanship and the

supremacy of federal law. When Arizona was among

the States urging this Court to permit mandatory lifewithout-parole sentences for juveniles convicted of

homicide, Arizona freely admitted in a filing with this

Court that its sentencing scheme made life without

parole mandatory. See supra pp. 8, 18. Only after

Arizona found itself on the losing side of that

argument did it adopt the position that the same

sentencing scheme was not mandatory. And while

most of the 29 jurisdictions imposing mandatory lifewithout-parole sentences on juveniles have since

ordered discretionary resentencing or adopted other

mechanisms to implement this Court’s decision in

Miller, Arizona stands alone in its refusal to apply

Miller, Montgomery, and Jones. Instead, more than

two dozen defendants sentenced as juveniles remain

in prison in Arizona under mandatory life-withoutparole sentences. Arizona’s disagreement with the

36

decisions of this Court cannot excuse the State’s

compliance with those precedents.

Granting relief would not extend this Court’s

precedents one bit. The question presented requires

straightforward application of this Court’s repeated

admonition that mandatory life-without-parole

sentences for juveniles are unconstitutional. And

because other state high courts have applied Miller

and Montgomery in comparable circumstances,

granting relief would not affect collateral review

procedures outside of Arizona.

***

If this Court rules in Bassett’s favor, it will not be

deciding whether Bassett is entitled to be released

from prison. As this Court explained in Jones,

“[d]etermining the proper sentence in such a case

raises profound questions of morality and social

policy,” and it is for “state sentencing judges and

juries” to “determine the proper sentence in individual

cases in light of the facts and circumstances of the

offense, and the background of the offender.” 141 S.

Ct. at 1322. Ruling for Bassett would not prevent him

from being resentenced to life without parole.

Bassett instead seeks only what Miller,

Montgomery, and Jones guarantee: a resentencing

proceeding in which the sentencer has “discretion to

impose a sentence less than life without parole.”

Jones, 141 S. Ct. at 1311. Bassett seeks the very same

relief that Mississippi implemented in Jones, and

which this Court described as “both constitutionally

necessary and constitutionally sufficient.” Id. at 1313.

This Court’s review is urgently needed to ensure that

Bassett is entitled to the same.

37

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

AMY E. BAIN

BAIN & LAURITANO, PLC

7149 North 57th Drive

Glendale, AZ 85301

NEAL KUMAR KATYAL

Counsel of Record

KATHERINE B. WELLINGTON

WILLIAM E. HAVEMANN

DANA A. RAPHAEL

HOGAN LOVELLS US LLP

555 Thirteenth Street, N.W.

Washington, D.C. 20004

(202) 637-5600

neal.katyal@hoganlovells.com

MATTHEW DORRITIE

RACHEL RECORD

HOGAN LOVELLS US LLP

125 High Street, Suite 2010

Boston, MA 02110

Counsel for Petitioner

JANUARY 2024

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.