Petition for Writ of Certiorari — Felipe Petrone-Cabanas, Petitioner v. Arizona

Supreme Court briefOct 4, 2024

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No. _____

IN THE

Supreme Court of the United States

FELIPE PETRONE-CABANAS; CHARLES VINCENT

WAGNER; JONATHAN ANDREW ARIAS; THOMAS JAMES

ODOM; AND CHRISTOPHER LEE MCLEOD,

Petitioners,

STATE OF ARIZONA,

Respondent.

On Petition for a Writ of Certiorari to the

Arizona Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

MIKEL STEINFELD

MARICOPA COUNTY PUBLIC

DEFENDER

620 W. Jackson Street,

Suite 4015

Phoenix, AZ 85003

(602) 506-7711

mikel.steinfeld@maricopa.gov

Counsel for Petitioners

Felipe Petrone-Cabanas

and Jonathan Andrew

Arias

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

Counsel for Petitioners

Additional Counsel listed on inside cover

NATALEE SEGAL

BALLECER & SEGAL, LLP

1641 E. Osborn Road,

Suite 8

Phoenix, AZ 85014

(602) 295-9176

nataleesegal@gmail.com

Counsel for Petitioner

Christopher Lee McLeod

MICHAEL J. DEW

6501 N. Central Ave.

Phoenix, AZ 85012

(602) 234-0087

dewme@cox.net

Counsel for Petitioner

Charles Vincent Wagner

KERRIE DROBAN ZHIVAGO

ZHIVAGO LAW

1934 E. Camelback Rd.,

Suite 120-482

Phoenix, AZ 85016

(480) 612-3058

zhivagolaw@gmail.com

Counsel for Petitioner

Thomas James Odom

QUESTION PRESENTED

States may not “make life without parole the

mandatory (or mandatory minimum) punishment” for

juveniles. Miller v. Alabama, 567 U.S. 460, 482 n.9

(2012). Juvenile homicide offenders may be sentenced

to life without parole, but “only if ” the sentencer “has

discretion to impose a lesser punishment.” Jones v.

Mississippi, 593 U.S. 98, 100 (2021) (emphasis added).

Arizona abolished parole in 1994. Thus, during

the relevant period, the mandatory minimum penalty

for juveniles convicted of first-degree murder was life

without parole. In the decisions below, the Arizona

Court of Appeals nevertheless held that it was bound

by the Arizona Supreme Court’s earlier decision in

State ex rel. Mitchell v. Cooper, 535 P.3d 3, 11-13 (Ariz.

2023) (“Bassett”), which held that “a choice” between

“sentencing options”—even where no option included

parole and the maximum penalty was death—

satisfied this Court’s precedents.

Over three dissents, this Court denied certiorari in

Bassett after the State of Arizona urged the Court to

deny review. The State did not defend the Arizona

Supreme Court’s reasoning in Bassett but argued that

review was unwarranted because, first, the defendant

there faced two sentencing options and the sentencer

chose the “harshest option,” and, second, the

sentencer in Bassett “mistakenly” believed that parole

was available. The question presented in this case is:

Whether juveniles may be sentenced to life

without parole under a system that did not afford the

sentencing court discretion to choose any lesser

option, even where the sentencer did not impose the

harshest option and even where the sentencer did not

mistakenly believe parole was available.

(i)

PARTIES TO THE PROCEEDING

Petitioners in this Court are Felipe PetroneCabanas, Charles Vincent Wagner, Jonathan Andrew

Arias, Thomas James Odom, and Christopher Lee

McLeod. Petrone-Cabanas, Wagner, Arias, and Odom

were the petitioners in the proceedings below.

McLeod was the real party in interest in the

proceedings below.

Respondent is the State of Arizona, which was the

respondent in the proceedings below involving

Petrone-Cabanas, Wagner, Arias, and Odom, and the

petitioner in the proceedings below involving McLeod.

iii

RELATED PROCEEDINGS

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



Arias, et al. v. Arizona, No. 24A76 (July 19, 2024)

(granting application to extend time to file

petition for writ of certiorari)



Arias v. Arizona, 580 U.S. 951 (2016) (granting

petition, vacating judgment, and remanding for

further consideration in light of Montgomery)

Arizona Supreme Court (Ariz.):



State v. Petrone-Cabanas, No. CR-23-0331-PR

(June 3, 2024) (denying review)



State v. Petrone-Cabanas, No. CR-22-0185-PR

(Sept. 19, 2023) (granting review, vacating, and

remanding for further proceedings post-Bassett)



State v. Wagner, No. CR-24-0013-PR (June 3,

2024) (denying review)



State v. Wagner, No. CR-22-0156-PR (Sept. 19,

2023) (granting review, vacating, and remanding

for further proceedings post-Bassett)



State v. Wagner, 982 P.2d 270 (1999) (affirming

convictions and sentences)



State v. Arias, No. CR-24-0020-PR (June 3, 2024)

(denying review)



State v. Arias, No. CR-22-0237-PR (Sept. 19,

2023) (granting review, vacating, and remanding

for further proceedings post-Bassett)



State v. Odom, No. CR-23-0265-PR (May 7, 2024)

(denying review)



State v. Odom, No. CR-23-0265-PR (Sept. 19,

2023) (granting review, vacating, and remanding

for further proceedings post-Bassett)



State v. McLeod, No. CR-23-0285-PR (June 3,

2024) (denying review)

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



State v. Petrone-Cabanas, No. 1 CA-CR 21-0534

PRPC (Dec. 6, 2023) (denying postconviction

relief)



State v. Petrone-Cabanas, No. 1 CA-CR 21-0534

PRPC, 2022 WL 2205273 (June 21, 2022)

(granting relief), vacated, (Ariz. Sept. 19, 2023)



Petrone-Cabanas v. Pineda in & for Cnty. of

Maricopa, 433 P.3d 560 (2018)



State v. Petrone-Cabanas, No. 1 CA-CR 15-0660

PRPC, 2017 WL 3599595 (Aug. 22, 2017)

(ordering evidentiary hearing)



State v. Wagner, No. 1 CA-CR 21-0492 PRPC

(Dec. 20, 2023) (denying postconviction relief)



State v. Wagner, 510 P.3d 1083 (2022) (granting

relief), vacated, (Ariz. Sept. 19, 2023)



State v. Wagner, 976 P.2d 250 (1998) (affirming

convictions and sentences), approved in part,

vacated in part, 982 P.2d 270 (Ariz. 1999)



State v. Arias, No. 1 CA-CR 22-0064 PRPC (Sept.

25, 2023) (denying postconviction relief)



State v. Arias, No. 1 CA-CR 22-0064 PRPC, 2022

WL 3973488 (Sept. 1, 2022) (granting relief),

vacated, (Ariz. Sept. 19, 2023)



State v. Arias, 1 CA-CR 13-0548 PRPC, 2015 WL

2453175 (May 21, 2015) (denying postconviction

relief), vacated, 580 U.S. 951 (2016)



State v. Odom, No. 1 CA-CR 21-0537 PRPC (Sept.

25, 2023) (denying postconviction relief)



State v. Odom, No. 1 CA-CR 21-0537 PRPC, 2022

WL 4242815 (Sept. 15, 2022) (granting relief),

vacated, (Ariz. Sept. 19, 2023)



State v. Odom, No. 1 CA-CR 11-0609, 2012 WL

3699485 (Aug. 28, 2012) (affirming convictions

and sentences), review denied, (Ariz. Feb. 12,

2013)



State v. Gentry/McLeod, No. 1 CA-SA 22-0196

(Oct. 13, 2023) (denying postconviction relief)

Arizona Superior Court, Maricopa County (Ariz.

Super. Ct.):



State v. Petrone-Cabanas, No. CR 1999-006656

(Oct. 6, 2021) (denying postconviction relief)



State v. Wagner, No. CR 1994-092394 (Sept. 29,

2021) (denying postconviction relief)



State v. Arias, No. CR 1999-012663 (Nov. 10,

2021) (denying postconviction relief)



State v. Odom, No. CR 2010-121445-001 (Sept.

29, 2021) (denying postconviction relief)



State v. McLeod, No. CR 1996-090611 (Apr. 29,

2022) (ordering evidentiary hearing)

U.S. District Court for the District of Arizona (D.

Ariz):



Arias v. Thornell, No. 2:15-cv-01236, 2024 WL

3951979 (Aug. 27, 2024)

TABLE OF CONTENTS

Page

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

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

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

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

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

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 6

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................................... 6

STATEMENT OF THE CASE ................................... 7

A. Legal Background ............................................ 7

B. Procedural Background ................................. 13

REASONS FOR GRANTING THE PETITION ....... 18

THIS PETITION WARRANTS REVIEW

NOTWITHSTANDING THE CERT DENIAL IN

BASSETT ............................................................. 19

A. The Death Penalty Distorted Any

Consideration Of Youth .................................. 19

B. There Was No “Actual Consideration Of

Parole-Eligibility” In Petitioners’ Cases ........ 24

II.

THIS PETITION IS AN IDEAL VEHICLE TO

ADDRESS THIS IMPORTANT QUESTION ................ 27

CONCLUSION .......................................................... 31

APPENDIX

vii

TABLE OF AUTHORITIES

Page(s)

CASES:

Arias v. Arizona,

580 U.S. 951 (2016) ................................................ 8

Atkins v. Virginia,

536 U.S. 304 (2002) .............................................. 10

Bassett v. Arizona,

144 S. Ct. 2494 (2024) .................... 2, 3, 5, 8, 10-13,

18, 23, 24, 26, 28, 30

Cruz v. Arizona,

598 U.S. 17 (2023) .......................................... 10, 11

DeShaw v. Arizona,

580 U.S. 951 (2016) ................................................ 8

Greenholtz v. Inmates of Nebraska Penal &

Corr. Complex,

442 U.S. 1 (1979) .................................................. 22

Jones v. Mississippi,

593 U.S. 98 (2021) ........................... 1, 2, 4, 8, 9, 12,

13, 18, 21, 26, 29, 30

Kansas v. Marsh,

548 U.S. 163 (2006) .............................................. 20

Lynch v. Arizona,

578 U.S. 613 (2016) .............................................. 11

Miller v. Alabama,

567 U.S. 460 (2012) .......................... 1, 4, 5, 7, 8, 22

Montgomery v. Louisiana,

577 U.S. 190 (2016) .......................................... 8, 11

Najar v. Arizona,

580 U.S. 951 (2016) ................................................ 8

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Parker v. State,

119 So. 3d 987 (Miss. 2013) ................................... 9

Purcell v. Arizona,

580 U.S. 951 (2016) ................................................ 8

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 10

Roper v. Simmons,

543 U.S. 551 (2005) .............................. 4, 13, 14, 21

Stanford v. Kentucky,

492 U.S. 361 (1989) .............................................. 21

State ex rel. Mitchell v. Cooper (“Bassett”),

535 P.3d 3 (Ariz. 2023)......... 2, 3, 12, 13, 24, 27, 28

State v. Cruz,

487 P.3d 991 (Ariz. 2021), rev’d sub nom.

Cruz v. Arizona, 598 U.S. 17 (2023) .................... 11

State v. Dansdill,

443 P.3d 990 (Ariz. Ct. App. 2019) ...................... 10

State v. Deshaw,

No. 1-CA-CR 21-0512, 2024 WL 3160590

(Ariz. Ct. App. June 25, 2024) ............................. 29

State v. Valencia,

386 P.3d 392 (Ariz. 2016) ..................................... 11

State v. Williams,

800 P.2d 1240 (Ariz. 1987) ................................... 20

Tatum v. Arizona,

580 U.S. 952 (2016) ................................................ 8

CONSTITUTIONAL PROVISIONS:

U.S. Const. art. VI, cl. 2 .............................................. 7

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. Const. amend. VIII .......................................... 6, 7

U.S. Const. amend. XIV .............................................. 7

STATUTES:

28 U.S.C. § 1257(a) ...................................................... 6

Ariz. Rev. Stat. § 13-703(A) (1994) ........................... 10

Ariz. Rev. Stat. § 13-703(A) (2001) ........................... 10

Ariz. Rev. Stat. § 13-703(A) (2002) ........................... 10

Ariz. Rev. Stat. § 13-703(H)(5) (2001) ...................... 21

Ariz. Rev. Stat. § 13-716 (2014) ................................ 11

Ariz. Rev. Stat. § 13-751(A) (2009) ........................... 10

Ariz. Rev. Stat. § 41-1604.09(I) (1994) ..................... 10

Ariz. Rev. Stat. § 41-1604.09(I)(2) (2014) ................. 11

RULES:

Ariz. R. Crim. P. 32.1(g) ............................................ 15

Ariz. R. Crim. P. 32.8 (2018) ..................................... 12

LEGISLATIVE MATERIALS:

2001 Ariz. Sess. Laws Ch. 260 .................................. 10

2002 Ariz. Sess. Laws 5th Sp. Sess. Ch. 1 ................ 10

2008 Ariz. Sess. Laws Ch. 301 .................................. 10

OTHER AUTHORITIES:

Matt Ford, He Committed a Double Murder at

16. Does He Deserve to Die in Prison?,

The New Republic (May 15, 2024),

https://perma.cc/KQH4-D5WX ............................ 28

TABLE OF AUTHORITIES—Continued

Page(s)

Adam Liptak, In Arizona, Life Sentences for

Juveniles Test Supreme Court Precedents,

N.Y. Times (June 10, 2024),

https://www.nytimes.com/2024/06/10/us/supre

me-court-arizona-life-sentence-juveniles.html ... 29

IN THE

Supreme Court of the United States

No. _____

FELIPE PETRONE-CABANAS; CHARLES VINCENT

WAGNER; JONATHAN ANDREW ARIAS; THOMAS JAMES

ODOM; AND CHRISTOPHER LEE MCLEOD,

Petitioners,

STATE OF ARIZONA,

Respondent.

On Petition for a Writ of Certiorari to the

Arizona Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Petitioners Felipe Petrone-Cabanas, Charles

Vincent Wagner, Jonathan Andrew Arias, Thomas

James Odom, and Christopher Lee McLeod

respectfully petition for a writ of certiorari to review

the judgments of the Arizona Court of Appeals.

INTRODUCTION

This joint petition is brought by five Arizona

defendants sentenced as juveniles to mandatory life

without parole in violation of this Court’s precedents.

This Court held in Miller v. Alabama that “mandatory

life-without-parole sentences for juveniles violate the

Eighth Amendment.” 567 U.S. 460, 470 (2012). In

Jones v. Mississippi, this Court again affirmed that

(1)

life-without-parole sentences for juveniles are

permissible “only if ” the sentencer “has discretion to

impose a lesser punishment.” 593 U.S. 98, 100 (2021).

It is undisputed that Arizona’s sentencing scheme did

not allow the sentencing judges in Petitioners’ cases

to impose parole-eligible sentences.

Under a

straightforward

application

this

Court’s

precedents,

Petitioners’

sentences

are

unconstitutional.

The Arizona courts nonetheless denied relief to all

five Petitioners. In a published opinion in an earlier

case known as Bassett, the Arizona Supreme Court

held that Arizona’s scheme comported with the Eighth

Amendment,

maintaining

that this

Court’s

precedents “do not specifically require the availability

of parole when sentencing a juvenile.” State ex rel.

Mitchell v. Cooper, 535 P.3d 3, 11-13 (Ariz. 2023)

(“Bassett”). Instead, the Arizona Supreme Court

believed that “a choice between” life sentences—even

if neither allowed parole—sufficed.

Id. at 13.

Following Bassett, the Arizona Court of Appeals

denied relief to all five Petitioners here, and the

Arizona Supreme Court denied review.

Three Justices of this Court would have summarily

reversed the Arizona Supreme Court’s decision in

Bassett as plainly inconsistent with “this Court’s

established precedents.” Bassett v. Arizona, 144 S. Ct.

2494, 2499 (2024) (Sotomayor, J., dissenting from

denial of certiorari). But this Court denied review at

the urging of the State of Arizona. The State’s brief in

opposition to certiorari in Bassett did not defend the

Arizona Supreme Court’s conclusion that this Court’s

precedents “do not specifically require the availability

of parole when sentencing a juvenile.” Bassett, 535

P.3d at 11. That conclusion was “plainly inconsistent

with Miller, Montgomery, and Jones,” and the State

therefore appropriately conceded that “paroleeligibility is constitutionally required.” Bassett, 144

S. Ct. at 2495-96 (Sotomayor, J., dissenting from

denial of certiorari) (citation omitted).

Instead, the State urged this Court to deny review

principally for two reasons specific to the facts of that

case. First, the State noted that the defendant in

Bassett had been eligible for two different lifewithout-parole sentences and the sentencing judge

imposed the “harshest option,” which, according to the

State, meant that any resentencing would result in

life without parole. Br. in Opp’n 20, Bassett, 144 S.

Ct. 2494 (No. 23-830) (“Bassett BIO”). Second, the

State argued that the sentencing judge “mistaken[ly]”

believed that parole was available, and therefore

“fortuitously complied with Miller” by considering

whether to grant a parole-eligible sentence before

imposing life without parole. Id. at 27.

For the reasons explained in detail in the Bassett

certiorari petition, the Arizona Supreme Court’s

decision in Bassett contravenes this Court’s

precedents. But regardless of whether Bassett was

correctly decided on the facts of that case, it cannot

justify Petitioners’ sentences here. The reasons the

State offered this Court for denying review in Bassett

are wholly inapplicable to Petitioners’ cases. Thus,

notwithstanding the denial of certiorari in Bassett,

Petitioners’ mandatory life-without-parole sentences

raise distinct constitutional problems that call out for

this Court’s review.

First, unlike in Bassett, this joint petition involves

defendants who were not sentenced to the “harshest

option” available under Arizona law. Four of the five

Petitioners were sentenced to life without parole

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

abolished the death penalty for juveniles. The logic of

the Arizona Supreme Court’s decision in Bassett

entirely collapses in cases where a juvenile faced the

possibility of death.

For death-eligible defendants, Arizona sentencing

courts imposed mandatory life-without-parole

sentences as an act of mercy. In these circumstances,

there is no basis to speculate that sentencing judges

necessarily deemed the defendant to be among the

“relatively rare” children for whom a life-withoutparole sentence was appropriate. Jones, 593 U.S. at

111-112. There is instead every reason to conclude

that sentencing judges, having declined to impose the

death penalty, would have awarded a parole-eligible

sentence had state law made such a sentence

available. Indeed, in one of Petitioners’ cases, the

sentencing judge spared the defendant from execution

after finding that “juvenile impulsivity played an

important part” in the crime and noting the

defendant’s “amenability to rehabilitation.” Pet. App.

29a, 32a. Having concluded that the defendant was

amenable to rehabilitation, there is every reason to

conclude that the sentencing judge would have

granted a parole-eligible sentence had state law made

it available. Miller, 567 U.S. at 479.

Second, the State in Bassett urged this Court to

deny review because “Bassett’s sentencer actually

considered whether he should be parole-eligible” and

decided against it. Bassett BIO 22. Were it not for the

“unusual” fact of the sentencer’s “mistaken” belief

that parole was available, the State conceded that

relief would be warranted. Id. at 14, 17. The State

assured this Court that, “[b]ut for” the “actual

consideration of parole-eligibility,” “there would be a

Miller violation.”

Bassett, 144 S. Ct. at 2499

(Sotomayor, J., dissenting from denial of certiorari)

(quoting Bassett BIO 23).

The State’s mistake-of-law argument cannot

conceivably justify the mandatory life-without-parole

sentences imposed on Petitioners here. In none of

Petitioners’ cases did the sentencing judge ever

express any mistaken belief that parole was an

available option under state law. Indeed, the Arizona

Court of Appeals remarked in one case that “[a]t no

point during the sentencing proceedings in this case

did the superior court refer to ‘parole’ or convey that

it believed it could sentence [the defendant] to a

parole-eligible term.” Pet. App. 73a.

In light of the State’s own representations to this

Court last term in Bassett, Petitioners’ mandatory

life-without-parole sentences cannot stand. Granting

relief to Petitioners will not entitle them to parole. It

will merely mean that an Arizona judge will, for the

first time, consider that they committed their crimes

when they were children before deciding whether “life

without any possibility of parole [i]s the appropriate

penalty.” Miller, 567 U.S. at 479. This Court should

grant the petition.

OPINIONS BELOW

The Arizona Superior Court decisions denying

postconviction relief to Petrone-Cabanas, Wagner,

Arias, and Odom, and granting relief to McLeod, are

unpublished. Pet. App. 34a-39a, 59a-60a, 79a-83a,

93a-97a; see id. at 107a.

The Arizona Court of Appeals decision initially

granting relief to Wagner is reported at 510 P.3d 1083;

see Pet. App. 61a-73a, and the decisions initially

granting relief to Petrone-Cabanas, Arias, and Odom

are unpublished, Pet. App. 40a-43a, 84a-87a, 98a101a.

The Arizona Supreme Court’s decisions reversing

the grants of relief post-Bassett are unpublished. Id.

at 44a-45a, 74a-75a, 88a-90a, 102a-103a. The Arizona

Court of Appeals decisions subsequently denying

postconviction relief to Petitioners are unpublished.

Id. at 46a, 76a-77a, 91a, 104a, 106a-108a. The

Arizona Supreme Court’s denials of review are also

unpublished. Id. at 47a, 78a, 92a, 105a, 109a.

JURISDICTION

The Arizona Court of Appeals entered judgment

against Arias and Odom on September 25, 2023, Pet.

App. 91a, 104a; against McLeod on October 13, 2023,

id. at 106a; against Petrone-Cabanas on December 6,

2023, id. at 46a; and against Wagner on December 20,

2023, id. at 76a. The Arizona Supreme Court denied

review in Odom’s case on May 7, 2024, id. at 105a, and

in the remaining Petitioners’ cases on June 3, 2024,

id. at 47a, 78a, 92a, 109a. This Court granted

Petitioners’ timely application to extend the time to

file a petition for a writ of certiorari to October 4, 2024.

No. 24A76 (July 19, 2024). This Court’s jurisdiction is

invoked under 28 U.S.C. § 1257(a).

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, cl. 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. 110a-115a.

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. Because “children are constitutionally different

from adults for purposes of sentencing,” the

sentencing authority must have “discretion to impose

a different punishment.” Id. at 465, 471. 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 28 States that had mandatory

life-without-parole sentences for juveniles, including

Arizona.” Bassett, 144 S. Ct. at 2498-99 (Sotomayor,

J., dissenting from denial of certiorari); see Miller, 567

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

“overrule[d]” those sentencing schemes. 567 U.S. at

514 (Alito, J., dissenting).

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.

190, 195, 206 (2016) (citation and quotation marks

omitted). This Court subsequently vacated several

Arizona court orders dismissing claims for

postconviction relief under Miller—including in one

Petitioner’s case here—ordering further consideration

in light of Montgomery. See Tatum v. Arizona, 580

U.S. 952 (2016); Arias v. Arizona, 580 U.S. 951 (2016);

DeShaw v. Arizona, 580 U.S. 951 (2016); Najar v.

Arizona, 580 U.S. 951 (2016); Purcell v. Arizona, 580

U.S. 951 (2016).

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.” 593 U.S. at 100

(emphasis added).

The Constitution “prohibits

mandatory

life-without-parole

sentences

for

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

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

at 103.

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) (citation omitted). 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, 593 U.S. at 103.

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. 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 105. This

Court’s decision “carefully follow[ed] both Miller and

Montgomery” and emphasized repeatedly that it did

“not overrule” either case. Id. at 118. “Miller held

that a State may not impose a mandatory life-withoutparole sentence on a murderer under 18,” and Jones

did “not disturb that holding.” Id.

2. During the period relevant here, Arizona law

provided three possible penalties for first-degree

murder: (1) death; (2) “natural life,” under which a

defendant was categorically ineligible for “release

from confinement on any basis,” including by

“commutation” or “parole”; or (3) “life,” which required

a defendant to serve at least 25 years before he could

be “released on any basis.” Ariz. Rev. Stat. § 13703(A) (1994, 2001, 2002) (renumbered as § 13-751(A)

(2009)); see Pet. App. 110a-115a.1 As in Mississippi, a

separate provision of Arizona law “completely

abolished parole for people convicted of felonies,”

meaning that “Arizona courts had no discretion to

impose parole-eligible sentences.” Bassett, 144 S. Ct.

at 2495 (Sotomayor, J., dissenting from denial of

certiorari); see Ariz. Rev. Stat. § 41-1604.09(I) (1994).

The “only ‘release’ available under Arizona law [wa]s

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

U.S. 17, 23 (2023). But even the possibility of

clemency was “more theoretical than practical”; the

“likelihood” of clemency was “so remote” that a life

and natural life sentence were “indistinct.” State v.

Dansdill, 443 P.3d 990, 1000 n.10 (Ariz. Ct. App.

2019). No one convicted of first-degree murder has

received clemency in the 30 years since Arizona

Wagner and McLeod were sentenced under the 1994 version of

the statute; Petrone-Cabanas was sentenced under the 2001

version, which had been amended in light of Atkins v. Virginia,

536 U.S. 304 (2002) (execution of mentally disabled individuals

violates Eighth Amendment), see 2001 Ariz. Sess. Laws Ch. 260;

Arias was sentenced under the 2002 version, which had been

revised in light of Ring v. Arizona, 536 U.S. 584 (2002)

(imposition of death penalty based on judge-found facts violates

Sixth Amendment), see 2002 Ariz. Sess. Laws 5th Sp. Sess. Ch.

1; and Odom was sentenced under the 2009 version, which

renumbered the relevant statutory provisions, see 2008 Ariz.

Sess. Laws Ch. 301.

abolished parole. Bassett, 144 S. Ct. at 2496 n.1

(Sotomayor, J., dissenting from denial of certiorari).

Although Arizona’s sentencing statute “continued

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

“the State itself represented, in this Court and other

courts, that state law made life without parole the

minimum sentence,” Bassett, 144 S. Ct. at 2497

(Sotomayor, J., dissenting from denial of certiorari);

see also, e.g., Lynch v. Arizona, 578 U.S. 613, 614

(2016) (Arizona “acknowledged that [the] only

alternative sentence to death was life imprisonment

without parole”). Indeed, Arizona joined an amicus

brief in Miller confirming that it was among the

States that “make the punishment mandatory.”

States Amicus Br. 1, Miller v. Alabama, Nos. 10-9646,

10-9647, 2012 WL 605831 (Feb. 21, 2012).

After Miller, Arizona reinstated parole for only

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 initially

acknowledged that these sentences “amount[ed] to

sentences of life without the possibility of parole.”

State v. Valencia, 386 P.3d 392, 394, 396 (Ariz. 2016);

see also State v. Cruz, 487 P.3d 991, 994 (Ariz. 2021)

(noting that “the law in place at the time [juvenile]

defendants were sentenced permitted what Miller

later precluded”), rev’d sub nom. Cruz v. Arizona, 598

U.S. 17 (2023). The Arizona Supreme Court held that

these defendants were entitled to evidentiary

hearings to determine if resentencing was required.

Ariz. R. Crim. P. 32.8 (2018).

3. After this Court decided Jones, however, the

Arizona Supreme Court reversed course. Despite this

Court’s repeated statements in Jones that it was not

overruling Miller or Montgomery, see 593 U.S. at 110

n.4, 118, the Arizona Supreme Court concluded that

“Jones refuted the premise” for its understanding that

Miller and Montgomery required relief, and

proclaimed that Arizona’s sentencing scheme was “not

mandatory under Miller.” Bassett, 535 P.3d at 13.

The Arizona Supreme Court acknowledged that

defendants sentenced between 1994 and 2014 were

“actually ineligible for parole” because the legislature

had “eliminated parole,” meaning that their “only

option would have been ‘release’ after twenty-five

years through the executive clemency process.” Id. at

8. But the court reasoned that “Miller and its progeny

do not specifically require the availability of parole

when sentencing a juvenile.” Id. at 11. In the Arizona

Supreme Court’s view, “a choice between two

sentencing options”—natural life, or life with possible

“release” after 25 years—was sufficient under Miller,

even if neither option included parole. Id. at 13.

This Court denied review in Bassett. Justice

Sotomayor, joined by Justices Kagan and Jackson,

dissented and would have summarily reversed

because “the Arizona Supreme Court’s decision

departed from this Court’s established precedents.”

144 S. Ct. at 2499 (Sotomayor, J., dissenting from

denial of certiorari). “This Court’s precedents require

a ‘discretionary sentencing procedure—where the

sentencer can consider the defendant’s youth and has

discretion to impose a lesser sentence than life

without parole,’ ” but “Arizona’s sentencing scheme

instead mandated life without parole for juveniles.”

Id. at 2495 (quoting Jones, 593 U.S. at 112).

In opposing certiorari, the State of Arizona did not

defend the Arizona Supreme Court’s conclusion that

“Miller and its progeny do not specifically require the

availability of parole when sentencing a juvenile.”

Bassett, 535 P.3d at 11. Rather, the State conceded

that “parole-eligibility is constitutionally required”

and that “Arizona law did not provide a parole-eligible

option” at the relevant time. Bassett BIO 1, 24. The

State did “not argu[e] that the mere existence of its

two [life] sentencing options saves it from a Miller

violation.” Id. at 22-23. But the State believed that

the sentencing judge had “fortuitously complied with

Miller” because he considered the defendant’s youth

while operating under a “mistaken belief ” in the

availability of parole, and nonetheless imposed the

harshest sentencing option available under state law.

Id. at 20, 27.

“But for the sentencer’s actual

consideration of parole-eligibility,” the State agreed,

“there would be a Miller violation.” Id. at 23.

Since the Arizona Supreme Court’s decision in

Bassett, every court has denied relief, including to

Petitioners here.

B. Procedural Background

1. Petitioners were each sentenced as children to

life without parole during the period when “Arizona

courts had no discretion to impose parole-eligible

sentences.” Bassett, 144 S. Ct. at 2495 (Sotomayor, J.,

dissenting from denial of certiorari).

All were

sentenced before this Court’s decisions in Miller and

Montgomery. Four were sentenced before Roper v.

Simmons, 543 U.S. 551 (2005), abolished the death

penalty for juveniles. The circumstances of their

convictions differ in significant respects from the

circumstances in Bassett.

Petitioner Felipe Petrone-Cabanas, for example,

was “raised in grinding poverty”—a “fifth grade

dropout, with no job skills, no English language skills,

no adult supervision and no prospects.” Pet. App. 22a23a. He was 17 years old when he killed a police

officer in 1999. Petrone-Cabanas pled guilty, and the

State sought the death penalty. Under Arizona law at

the time, the “death penalty [wa]s mandatory” if the

judge found an aggravating factor—here, murder of a

police officer—absent “sufficiently mitigating factors.”

Id. at 3a. The sentencing court found that “juvenile

impulsivity played an important part” in PetroneCabanas’s crime and afforded his youth “very

substantial weight in mitigation.” Id. at 29a. When

considered with Petrone-Cabanas’s “genuine remorse”

and his “amenability to rehabilitation,” the court

found these factors “sufficiently substantial to call for

leniency,” sparing Petrone-Cabanas from execution.

Id. at 32a. The court sentenced him to life without

parole, without addressing any distinction between

life and natural life sentences.

Charles Vincent Wagner was abused by his

parents and repeatedly ran away from home. He was

16 years old when he killed a woman during a robbery

in 1994. After the jury deadlocked in his first trial,

Wagner was convicted of first-degree murder in a

second trial, and the State sought the death penalty.

The sentencing court found that Wagner’s age and

“difficult family background” were mitigating factors

“sufficiently substantial to call for life imprisonment

instead of death,” and sentenced Wagner to natural

life. Id. at 57a-58a.

Petitioner Jonathan Andrew Arias was abandoned

by his parents, molested by a relative, and twice

attempted suicide.

He was 16 years old and

intoxicated when he killed two people during a

robbery in 1999, and participated in another robbery

in which an accomplice committed murder. Arias pled

guilty in exchange for the State’s agreement not to

pursue the death penalty and was sentenced to

consecutive natural life sentences.

Petitioner Thomas James Odom was kidnapped as

a young child by his mother, who “took him to a crack

house and turned tricks while she put him under the

bed.” 8/19/11 Sentencing Tr. at 15, State v. Odom, No.

CR 2010-121445-001 (Ariz. Super. Ct.). Odom was 16

years old and suffering from untreated schizophrenia

when he killed a girl in 2010. Odom was convicted of

first-degree murder and sentenced to life without

parole.

Petitioner Christopher Lee McLeod was abused by

his mother, who broke both his legs as a toddler. He

was 15 years old and hearing voices in his head when

he killed his sister in 1995. McLeod pled guilty and

was sentenced to life without parole.

2. Two Petitioners’ convictions and sentences were

affirmed on appeal; the other three did not appeal.

Petitioners each later sought postconviction relief on

the ground that Miller was a “significant change in

the law” entitling them to relief and resentencing.

Ariz. R. Crim. P. 32.1(g); see Pet. App. 41a, 66a, 85a,

99a, 107a. After Montgomery, the State of Arizona

stipulated that Arias was entitled to resentencing,

Pet. App. 86a, and that two other Petitioners were

entitled to hearings to determine whether

resentencing was necessary, id. at 66a (Wagner), 99a100a (Odom). Arizona courts ordered hearings for the

remaining two Petitioners.

See id. at 41a-42a

(Petrone-Cabanas), 107a (McLeod).

Before any hearing or resentencing occurred,

however, this Court decided Jones, and the State

reversed course. The State argued that the scheme

under which Petitioners were sentenced was not

“mandatory” under Miller because at the time

Petitioners were sentenced, “A.R.S. § 13-703 provided

sentencing options of death or life, and life could be

natural life or life without eligibility for release [for 25

years],” 7/12/21 State Mot. to Vacate at 18, State v.

Wagner, No. CR 1994-092394 (Ariz. Super. Ct.), even

though none of those options included parole, and the

only form of “release” available was executive

clemency.

The Arizona Court of Appeals initially rejected the

State’s argument with respect to all five Petitioners

here. In Wagner, the lead case, the Arizona Court of

Appeals held that it would be “error” to conclude that

Arizona defendants “did not receive a mandatory lifewithout-parole sentence.” Pet. App. 71a. The court

explained that “[t]he crux of Miller is two-part: (1) a

sentencing court must have the option of imposing a

parole-eligible sentence to a juvenile offender who is

required to serve a life term, and (2) the court must

consider the offender’s youth in determining whether

to impose a parole-eligible sentence.” Id. But in

Arizona, sentencing courts “had no discretion to

sentence [defendants] to a parole-eligible term.” Id.

“It 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.” Id.

The Court of Appeals specifically rejected the

State’s argument that Miller was inapplicable

because sentencing courts may have mistakenly

believed parole was available and could have imposed

“illegal, parole eligible” sentences. Id. at 72a. “If a

court’s theoretical ability to impose a parole-eligible

sentence in violation of state law were an exception to

Miller, the exception would swallow the rule.” Id. The

court also found that “the record negates the State’s

argument”: “At no point during the sentencing

proceedings in this case did the superior court refer to

‘parole’ or convey that it believed it could sentence

Wagner to a parole-eligible term.” Id. at 72a-73a.

The Arizona Supreme Court subsequently issued

its decision in Bassett. It also granted the State’s

petitions for review in Petitioners’ cases, vacated the

Court of Appeals’ decisions, and remanded for further

proceedings consistent with Bassett. Id. at 44a-45a,

74a-75a, 88a-90a, 102a-103a.

On remand, the Arizona Court of Appeals denied

relief to all Petitioners. It summarily denied relief in

three cases, citing Bassett. Id. at 46a, 91a, 104a. In

the other two cases, the Court of Appeals held it was

compelled by Bassett to conclude that the sentences

were “not mandatory under Miller” because the

sentencer had a choice between two life sentences,

neither of which afforded parole. Id. at 77a, 107a.

Petitioners sought review in the Arizona Supreme

Court, which the court summarily denied. Id. at 47a,

78a, 92a, 105a, 109a.

This petition follows.

REASONS FOR GRANTING THE PETITION

Three Justices of this Court would have summarily

reversed the Arizona Supreme Court’s decision in

Bassett as “plainly inconsistent with Miller,

Montgomery, and Jones.”

144 S. Ct. at 2496

(Sotomayor, J., dissenting from denial of certiorari).

That is because from 1994—when Arizona

“completely abolished parole for people convicted of

felonies”—and 2014—when Arizona reinstated parole

for some juveniles—“Arizona courts had no discretion

to impose parole-eligible sentences.” Id. at 2495.

“This Court’s precedents require a ‘discretionary

sentencing procedure—where the sentencer can

consider the defendant’s youth and has discretion to

impose a lesser sentence than life without parole.’ ”

Id. (quoting Jones, 593 U.S. at 112). But “Arizona’s

sentencing scheme instead mandated life without

parole for juveniles.” Id. The mere “discretion to

consider youth as a mitigating factor” in choosing

between parole-ineligible sentences is not enough to

satisfy the Eighth Amendment, because “[s]entencing

courts must have the authority to actually ‘impose a

lesser sentence than life without parole.’ ” Id. at 2497

(quoting Jones, 593 U.S. at 112); see Bassett Pet. 1720, 22-24.

For the reasons described in detail in the petition

for certiorari in Bassett, the Arizona Supreme Court’s

decision in Bassett contravened this Court’s

precedents, while splitting from the consensus among

other state courts that provided relief to juveniles

sentenced to mandatory life-without-parole sentences

in materially indistinguishable circumstances. But

this joint petition does not seek to relitigate Bassett.

Instead, Petitioners’ mandatory life-without-parole

sentences raise distinct problems that this Court did

not consider in Bassett and that independently call out

for review. Indeed, the State’s representations to this

Court in Bassett reveal that Petitioners’ mandatory

life-without-parole sentences cannot stand.

THIS PETITION WARRANTS REVIEW

NOTWITHSTANDING THE CERT DENIAL IN

BASSETT.

Petitioners’ cases differ from Bassett in two key

respects.

Given these differences, the State’s

arguments for denying review in Bassett are entirely

inapplicable here.

First, unlike in Bassett, several Petitioners were

eligible for the death penalty—meaning that the

sentencing judge did not impose life without parole as

the “harshest option” available. The sentencing judge

instead decided to impose life without parole as an act

of mercy. The logic of Bassett, and the State’s

arguments to this Court in Bassett, collapse in that

context.

Second, the State argued in Bassett that the

sentencing court there had “fortuitously complied

with Miller” based on a mistaken belief that parole

was available under state law. The State further

represented that, “but for” that mistaken belief, the

life-without-parole sentence would be unlawful. But

Petitioners here were all sentenced without any

indication that their sentencers mistakenly believed

parole was available.

A. The Death Penalty Distorted Any

Consideration Of Youth.

The State in Bassett urged this Court to deny

review because the sentencing court in that case,

presented with two sentencing options, selected “[t]he

harshest option.” Bassett BIO 20. According to the

State, the sentencer’s deliberate choice of the harshest

option meant that any resentencing “would be

functionally identical to the first sentencing.” Id. at 2.

That logic, however, completely collapses in cases—

like some of Petitioners’ cases here—where the death

penalty was available.

The sentencing in Bassett occurred after this Court

in Roper ruled the death penalty unconstitutional for

juveniles. The defendant in Bassett was therefore not

eligible for the death penalty and was instead eligible

only for Arizona’s two life-without-parole sentences.

Bassett was found guilty on two counts of murder, and

the sentencing court chose to impose the less harsh

sentence on one count and the harshest sentence on

the other.

By contrast, four Petitioners here were sentenced

years before Roper, when Arizona law made juveniles

death-eligible. Under that scheme, the State was first

required to prove an aggravating factor, after which

the defendant had “the burden of proving sufficient

mitigating

circumstances

overcome

the

aggravating circumstances and that a sentence less

than death is therefore warranted.” Kansas v. Marsh,

548 U.S. 163, 172-173 (2006) (discussing Arizona law).

The death penalty was therefore “mandatory”—even

for juveniles—if the sentencing judge found “one or

more statutory aggravating factors and no sufficiently

mitigating factors.” Pet. App. 3a (citing State v.

Williams, 800 P.2d 1240, 1249 (Ariz. 1987)). In all

death-penalty cases, “[t]he defendant’s age” was one

of the mitigating factors Arizona sentencing courts

considered in deciding whether to impose the death

penalty. Ariz. Rev. Stat. § 13-703(H)(5) (2001); see

Stanford v. Kentucky, 492 U.S. 361, 375 & n.5 (1989)

(noting that 29 States, including Arizona, had codified

the “constitutional requirement” that sentencers be

permitted to consider “the defendant’s age as a

mitigating factor in capital cases”), abrogated on other

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

The logic of Bassett, and the State’s attempts to

defend it, fall apart in cases where a juvenile

defendant was eligible for the death penalty and the

sentencing court instead imposed a sentence of life

without parole. For defendants who were deatheligible, sentencing courts imposed life-withoutparole sentences as an act of mercy. The sentencing

court’s decision to impose a life-without-parole

sentence says nothing about whether the sentencing

court necessarily understood the defendant to be one

of the “relatively rare” children for whom a lifewithout-parole sentence was appropriate. Jones, 593

U.S. at 111-112. To the contrary, imposition of a lifewithout-parole sentence is strong evidence that the

sentencing court would have imposed a parole-eligible

sentence had Arizona law made such an option

available.

Petitioners’ cases illustrate why. In PetroneCabanas’s case, in deciding whether to impose the

death penalty, the sentencing court found that

“juvenile impulsivity played an important part” in the

crime and afforded his youth “very substantial weight

in mitigation.” Pet. App. 29a. His youth, his “genuine

remorse,” and his “amenability to rehabilitation” were

mitigating factors “sufficiently substantial to call for

leniency,” sparing Petrone-Cabanas from execution.

Id. at 32a. The court found that Petrone-Cabanas

committed his crime “impulsively, or in a quick lapse

of judgment,” and that his “young age helps explain

why a young man who had never before been in

trouble, who knew right from wrong and who had been

provided a strong moral foundation during his

formative years by his parents, family and

community, became unhinged from his strong moral

underpinnings.”

Id. at 23a-24a, 29a (citation

omitted). Such a “lack of substantial judgment,” the

court concluded, is “one of the often-present vagaries

of youth.” Id. at 24a. The court further credited his

“recognition of the horrific nature of his crimes,” his

“acceptance of responsibility,” his recognition “that he

deserved to be punished and that he wanted to be

punished,” and his decision to plead guilty “knowing

that his guilty pleas would not save him from

execution.” Id. at 22a, 29a-31a. Those facts led the

court to find that Petrone-Cabanas was “amenable to

rehabilitation.” Id. at 31a.

It is impossible on a record like this to maintain,

as the State maintained in Bassett, that any

resentencing with an option for parole “would be

functionally identical to the first sentencing.” Bassett

BIO 2. To the contrary, the sentencing judge’s

conclusion that Petrone-Cabanas was “amenable to

rehabilitation” strongly indicates that the judge would

have allowed for parole had such an option been

available. See Greenholtz v. Inmates of Nebraska

Penal & Corr. Complex, 442 U.S. 1, 8 (1979)

(describing “rehabilitation” as one of the main

purposes of a “state-created parole system”). “Life

without parole forswears altogether the rehabilitative

ideal” and “reflects an irrevocable judgment about an

offender’s value and place in society, at odds with a

child’s capacity for change.” Miller, 567 U.S. at 473

(citations, quotation marks, and brackets omitted). A

judge who deemed a defendant capable of

rehabilitation would not sentence the defendant to life

without parole.

The death penalty likewise distorted the

consideration of youth in other Petitioners’ cases. The

sentencing court in Wagner’s case found that he was

“an immature 16-year-old with extremely poor

judgment when he committed the offense,” which,

along with his “difficult family background,” was

“sufficiently substantial to call for life imprisonment

instead of death.” Pet. App. 53a, 57a. Arias gave up

his trial rights and pled guilty in exchange for the

State’s agreement to withdraw the death-penalty

charge. The State therefore urged the judge to

disregard Arias’s youth at sentencing because

“Defendant has already been given leniency due to his

young age, and other reasons in withdrawing the

death penalty.” 1/10/2003 State Revised Sentencing

Mem. at 8, State v. Arias, No. CR 99-12663 (Ariz.

Super. Ct.).

And in McLeod’s case, the State

emphasized that it “did not pursue the death penalty”

only “[b]ecause of defendant’s age at the time of the

offense,” see 1/27/1998 State Sentencing Mem. at 6,

State v. McLeod, No. CR 96-90611 (Ariz. Super. Ct.),

thus likewise urging that McLeod had already been

afforded leniency on account of his youth. Because

these defendants were sentenced before both Miller

and Roper, “the sentencing court could not have

adequately considered [their] youth, [their] capacity

for rehabilitation, or the necessity of a parole-eligible

sentence.” Bassett, 144 S. Ct. at 2497 (Sotomayor, J.,

dissenting from denial of certiorari).

The State argued in Bassett that the sentencing

judge’s decision to impose the “harshest option” was a

“functional outcome” “no different than if paroleeligibility had been on the books all along.” Bassett

BIO 20-21. The same cannot be said in cases where

juveniles were death-eligible. The judges in those

cases could have imposed the death penalty. They

instead chose leniency. Had parole been available,

there is every reason to think these judges would have

imposed a parole-eligible sentence.

B. There Was No “Actual Consideration Of

Parole-Eligibility” In Petitioners’ Cases.

In its brief in opposition in Bassett, the State did

not defend the Arizona Supreme Court’s conclusion

that “Miller and its progeny do not specifically require

the availability of parole when sentencing a juvenile.”

Bassett, 535 P.3d at 11. The State conceded that

“parole-eligibility is constitutionally required” and

agreed that “Arizona law did not provide a paroleeligible option” at the time. Bassett, 144 S. Ct. at 2496

(Sotomayor, J., dissenting from denial of certiorari)

(quoting Bassett BIO 1, 24). The State did “not argu[e]

that the mere existence of its two [life] sentencing

options saves it from a Miller violation.” Id. at 2496

(quoting Bassett BIO 1, 22-23).

Nevertheless, the State maintained that the

sentencing court in Bassett had “fortuitously complied

with Miller” because it considered Bassett’s youth

while operating under a “mistaken belief ” in the

availability of parole. Id. (quoting Bassett BIO 3, 27).

The State pointed to the fact that Bassett was

sentenced to natural life on one count but “life with

the possibility of parole after 25 years” on the second.

Bassett BIO 13 (quoting Bassett, 535 P.3d at 13)

(emphasis added and citation omitted). “But for the

sentencer’s actual consideration of parole-eligibility,”

the State represented, “there would be a Miller

violation.” Id. at 23.

That rationale cannot conceivably justify

Petitioners’ sentences here. None of the sentencing

judges in any of Petitioners’ cases gave any indication

they “fortuitously” complied with Miller or gave

“actual consideration of parole-eligibility” based on a

mistaken interpretation of state law.

In Wagner’s case, the Arizona Court of Appeals

expressly rejected any such contention, finding that

“the record negates” any argument that the

sentencing court “understood the life sentencing

alternatives as natural life and life with the

possibility of parole after 25 years.” Pet. App. 72a73a. The Arizona Court of Appeals added that “[a]t no

point during the sentencing proceedings in this case

did the superior court refer to ‘parole’ or convey that

it believed it could sentence Wagner to a paroleeligible term.” Id. at 73a.

The record for the other Petitioners is similarly

devoid of any evidence that the sentencer mistakenly

gave “actual consideration of parole-eligibility”—and

indicates the opposite.

Odom’s trial counsel

understood that the only release available was

executive clemency—and explained as much to the

judge: Odom was “getting life,” and although the

statute listed the “option” of “life with the possibility

of parole at 25 [years],” “[o]bviously that’s got to be a

decision from an executive officer,” and “there has

never been someone released on parole since the

statute was put in place.” 8/19/2011 Sentencing Tr. at

4, 17-18, Odom, No. CR 2010-121445-001 (Ariz. Super

Ct.). The sentencing transcripts in McLeod’s case

have been lost to time, making it impossible to

speculate whether the sentencer may have

mistakenly believed parole was available. And in

none of the other cases did the sentencing court

discuss or reference parole or suggest any mistaken

belief that parole was available.

The difficulty of parsing the records in these cases

illustrates why this Court in Jones reaffirmed that a

State’s compliance with the Eighth Amendment turns

on whether a State’s “sentencing regime[ ]” imposes

“mandatory life-without-parole sentences,” not on the

nature of a state judge’s “on-the-record sentencing

explanation” in a particular case. 593 U.S. at 114-115,

119. The constitutionality of a State’s sentencing

regime should not shift and spring depending on how

much a sentencing judge said about youth in each

case, or based on speculation that a judge may have

misunderstood state law in sentencing a defendant

years ago. Instead, it is “a State’s discretionary

sentencing system” that “is both constitutionally

necessary and constitutionally sufficient.” Id. at 105

(emphasis added).

The State in Bassett represented to this Court that

it was “not argu[ing] that the mere existence of its two

sentencing options saves it from a Miller violation.”

Bassett, 144 S. Ct. at 2496 (Sotomayor, J., dissenting

from denial of certiorari) (quoting Bassett BIO 22).

Instead, the State agreed that “there would be a

Miller violation” “[b]ut for the sentencer’s actual

consideration of parole-eligibility.”

Id. at 2499

(quoting Bassett BIO 23). The State prevailed in

Petitioners’ cases below on the basis of the very logic

it has now disclaimed. In each of these cases, the

Arizona Court of Appeals denied relief not due to any

sentencing judge’s mistaken belief in parole

eligibility, but because Petitioners’ sentencing courts

had a choice between “impos[ing] a sentence of life

with no possibility of release for 25 years” or “natural

life.” Pet. App. 77a. The Arizona Court of Appeals

thus adhered to the Arizona Supreme Court’s

reasoning in Bassett that a “choice between two [life]

sentencing options” satisfied the Eighth Amendment,

535 P.3d at 11, 13, which is the exact reasoning the

State has now forsworn. The State’s representations

to this Court in Bassett mean that Petitioners’

sentences cannot stand.

II.

THIS PETITION IS AN IDEAL VEHICLE TO

ADDRESS THIS IMPORTANT QUESTION.

This joint petition is an excellent vehicle to address

Arizona’s refusal to apply Miller, Montgomery, and

Jones. The lower courts in Arizona granted relief in

each case, and the Arizona Court of Appeals held in a

published opinion that the abolition of parole made

Arizona’s sentencing scheme unconstitutional.

Following Bassett, the Arizona Supreme Court

reversed those decisions, and the Arizona Court of

Appeals concluded that Bassett compelled it to deny

relief. In summarily denying review in each case, the

Arizona Supreme Court has confirmed it will not

revisit the issue. Because this is a joint petition

brought by five different Petitioners, even if an

unforeseen vehicle problem emerged in a particular

case, this Court would still be assured of its ability to

resolve the question presented.

Although this Court declined to review the petition

in Bassett, the State in that case pointed to potential

vehicle problems not present here. The sentencing

court in Bassett purported to impose one natural life

sentence and a separate sentence of “life with the

possibility of parole after 25 years,” which the Arizona

Supreme Court suggested was due to the sentencer’s

mistaken belief that parole was available under state

law. Bassett, 535 P.3d at 12-13. Here, by contrast,

Petitioners were each sentenced to natural life, and

there is no evidence that any of their sentencing

courts mistakenly believed they had the option to

impose parole-eligible sentences.

This petition presents a question of profound

importance—for Petitioners and all other Arizona

defendants sentenced to natural life as juveniles.

From 1994 to 2014, juveniles convicted of first-degree

murder in Arizona were sentenced to life without

parole under a sentencing scheme that offered no

lesser option.

“Arizona’s sentencing scheme is

actually harsher than what the states in Miller,

Montgomery, and Jones had,” and it “defies the

underlying principle * * * that it is cruel and unusual

to deny juvenile offenders at least some meaningful

chance to show that they can be rehabilitated.” 2

“Miller identified 28 States that had mandatory lifewithout-parole sentences for juveniles, including

Arizona,” but “Arizona remains the only one of those

states” that has refused to remedy those

unconstitutional sentences. Bassett, 144 S. Ct. at

2498-99 (Sotomayor, J., dissenting from denial of

certiorari) (citation and quotation marks omitted).

Other States with similar mandatory-sentencing

regimes have long since implemented discretionary

Matt Ford, He Committed a Double Murder at 16. Does He

Deserve to Die in Prison?, The New Republic (May 15, 2024),

https://perma.cc/KQH4-D5WX.

resentencing, reinstituted parole, or adopted some

other remedy to comply with this Court’s precedents.

Arizona’s solo refusal to do the same “run[s] headlong

into * * * Supreme Court precedent.”3

There is no prospect that the Arizona courts will

correct this error absent this Court’s intervention.

Since the Arizona Supreme Court’s decision in

Bassett, every Arizona court to consider the issue has

concluded that Bassett forecloses relief, including in

four cases that this Court granted, vacated, and

remanded post-Montgomery—and even where the

State conceded error and stipulated to resentencing.

See State v. Deshaw, No. 1-CA-CR 21-0512, 2024 WL

3160590, at *3-5 (Ariz. Ct. App. June 25, 2024)

(rejecting the argument that “the presence of a death

penalty option rendered any non-death sentence

unconstitutional” based on the erroneous conclusion

that “each sentencing court had the discretion to

sentence the Defendants to less than life without

parole”). A joint petition on behalf of a group of

defendants—each denied relief regardless of the

particular facts of his case—is an appropriate vehicle

for addressing whether Arizona’s 1994-2014 juvenile

sentencing scheme is unconstitutional.

***

If this Court rules in Petitioners’ favor, it will not

be deciding whether they are entitled to be released

from prison, nor would it prevent Petitioners from

being resentenced to life without parole. As this Court

explained in Jones, it is for “state sentencing judges

Adam Liptak, In Arizona, Life Sentences for Juveniles Test

Supreme Court Precedents, N.Y. Times (June 10, 2024)

https://www.nytimes.com/2024/06/10/us/supreme-court-arizonalife-sentence-juveniles.html.

and juries” to “determine the proper sentence in

individual cases.” 593 U.S. at 119-120. But it is “this

Court’s role” to “ensure that the trial judge had

‘discretion to impose a lesser punishment in light of

[the defendant’s] youth.’ ” Bassett, 144 S. Ct. at 2498

(Sotomayor, J., dissenting from denial of certiorari)

(quoting Jones, 593 U.S. at 120). This Court’s review

is urgently needed to bring to Arizona defendants

what this Court and every other State have long

recognized as “constitutionally necessary”: the

“discretion to impose a lesser sentence than life

without parole.” Jones, 593 U.S. at 105, 112.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

MIKEL STEINFELD

MARICOPA COUNTY PUBLIC

DEFENDER

620 W. Jackson Street,

Suite 4015

Phoenix, AZ 85003

(602) 506-7711

mikel.steinfeld@maricopa.gov

Counsel for Petitioners

Felipe Petrone-Cabanas

and Jonathan Andrew

Arias

NATALEE SEGAL

BALLECER & SEGAL, LLP

1641 E. Osborn Road,

Suite 8

Phoenix, AZ 85014

(602) 295-9176

nataleesegal@gmail.com

Counsel for Petitioner

Christopher Lee McLeod

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

Counsel for Petitioners

MICHAEL J. DEW

6501 N. Central Ave.

Phoenix, AZ 85012

(602) 234-0087

dewme@cox.net

Counsel for Petitioner

Charles Vincent Wagner

KERRIE DROBAN ZHIVAGO

ZHIVAGO LAW

1934 E. Camelback Rd.,

Suite 120-482

Phoenix, AZ 85016

(480) 612-3058

zhivagolaw@gmail.com

Counsel for Petitioner

Thomas James Odom

OCTOBER 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.