Amicus Curiae Brief — Felipe Petrone-Cabanas, Petitioner v. Arizona

No. 24-391

IN THE

Supreme Court of the United States

FELIPE PETRONE-CABANAS, et al.,

Petitioners,

vs.

STATE OF ARIZONA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARIZONA

BRIEF OF AMICI CURIAE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, ARIZONA ATTORNEYS FOR

CRIMINAL JUSTICE, ARIZONA CAPITAL

REPRESENTATION PROJECT, ARIZONA

JUSTICE PROJECT, AND THE FEDERAL

PUBLIC DEFENDER FOR THE DISTRICT OF

ARIZONA IN SUPPORT OF PETITIONERS

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

250 North 7th Avenue, Suite 600

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Counsel for Amici Curiae

I

TABLE OF CONTENTS

Interests of Amici Curiae ................................................. 1

Introduction and Summary of Argument ........................ 3

Argument ............................................................................. 5

1. At the time of petitioners’ trials and sentencing

hearings, Arizona had a mandatory life-withoutparole sentencing scheme, which is

unconstitutional as applied to juveniles under

Miller. ...................................................................... 5

A. At the time petitioners were sentenced,

Arizona law did not allow a sentence less

severe than life without the possibility of

parole. ................................................................. 5

B. The availability of clemency—the only type of

“release” that was legally available at the time

petitioners were sentenced—is not

constitutionally equivalent to the possibility of

parole. ................................................................. 7

2. Petitioners and other similarly situated juvenile

offenders in Arizona have never received a

Miller-compliant sentencing hearing; unless this

Court grants review, Arizona law will ensure that

no court and no parole board will review their

capacity for rehabilitation. ..................................... 9

A. Because Arizona’s sentencing scheme did not

allow for a parole-eligible sentence, juvenile

offenders in Arizona, including petitioners, did

not have Miller-compliant sentencing

hearings. ............................................................ 9

II

B. Arizona’s sentencing procedures did not

sufficiently narrow the class of juvenile

offenders for whom natural life is an

appropriate sentence. ..................................... 11

C. The vast majority of juveniles in Arizona who

were unconstitutionally sentenced to life

without parole have not received any type of

relief since Miller. ........................................... 13

D. The State’s arguments for denying review in

Bassett do not apply here. .............................. 14

E. While Bassett is factually distinguishable from

petitioners’ cases, the lower Arizona courts

have relied on Bassett to foreclose any

possibility of resentencing or release on parole

to them and other similarly situated

defendants. ...................................................... 17

Conclusion .......................................................................... 20

III

TABLE OF AUTHORITIES

Cases:

Chaparro v. Shinn, 459 P.3d 50 (Ariz. 2020) ............. 6

Cruz v. Arizona, 598 U.S. 17 (2023) ................ 9, 17, 18

Graham v. Florida, 560 U.S. 48 (2010) ....................... 7

Jones v. Mississippi,

593 U.S. 98 (2021) ........................ 1, 9–10, 12–14, 18–20

Lynch v. Arizona,

578 U.S. 613 (2016) (per curiam) ............................. 6–8

Miller v. Alabama,

567 U.S. 460 (2012) ................................ 1, 3–6, 9–18, 20

Montgomery v. Louisiana,

577 U.S. 190 (2016) ................................ 1, 3, 4, 9–14, 18

Ring v. Arizona, 536 U.S. 584 (2002) ........................ 15

Roper v. Simmons, 543 U.S. 551 (2005) ....... 10–11, 15

Solem v. Helm, 463 U.S. 277 (1983) ............................ 7

State ex rel. Mitchell v. Cooper,

535 P.3d 3 (Ariz. 2023) .......................... 4–6, 8–9, 14–18

State v. Dansdill,

443 P.3d 990 (Ariz. Ct. App. 2019) ............................... 8

State v. Jackson, 918 P.2d 1038 (Ariz. 1996) ............ 16

State v. Laird, 920 P.2d 769 (Ariz. 1996) .................. 16

State v. Soto-Fong, 928 P.2d 610 (Ariz. 1996) .......... 16

State v. Valencia, 386 P.3d 392 (Ariz. 2016) ........... 4, 5

State v. Vera, 334 P.3d 754 (Ariz. Ct. App. 2014) ...... 5

Tatum v. Arizona, 580 U.S. 952 (2016) .............. 13, 18

IV

Viramontes v. Attorney General,

No. 4:16-cv-151-TUC-RM, 2021 WL 977170

(D. Ariz. Mar. 16, 2021) ............................................ 7–8

Constitution and statutes:

U.S. Const. amend. VIII .................. 1, 3–4, 7, 9–11, 14

18 U.S.C. § 3006A ......................................................... 3

28 U.S.C. § 2254 ...................................................... 3, 19

Ariz. Rev. Stat. § 13-751 ............................................. 19

Ariz. Rev. Stat. § 13-752 ............................................... 5

Ariz. Rev. Stat. § 41-1604.09 ........................................ 5

Miscellaneous:

Sup. Ct. R. 37.2 .............................................................. 1

1

INTERESTS OF AMICI CURIAE

Amici are 1 the National Association of Criminal

Defense Lawyers, Arizona Attorneys for Criminal

Justice, the Arizona Capital Representation Project, the

Arizona Justice Project, and the Federal Public Defender

for the District of Arizona. Amici have a strong interest

in the consistent and reliable application of the Eighth

Amendment’s prohibition on disproportionate punishment, as interpreted in Miller v. Alabama, 567 U.S. 460

(2012), Montgomery v. Louisiana, 577 U.S. 190 (2016),

and Jones v. Mississippi, 593 U.S. 98 (2021), and in

ensuring that a juvenile life-without-parole sentence is

imposed only in the rare case where that harsh sentence

is constitutional.

The National Association of Criminal Defense

Lawyers (NACDL) is a nonprofit voluntary professional

bar association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crime or misconduct. NACDL was founded in

1958. It has a nationwide membership of many thousands

of direct members, with up to 40,000 more in its affiliates.

NACDL’s members include private criminal defense

lawyers, public defenders, military defense counsel, law

professors, and judges. NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers. NACDL is dedicated to

advancing the proper, efficient, and just administration of

1 Pursuant to Rule 37.2, amici have informed counsel of record

for all parties of their intention to file this brief more than 10 days

before its due date. Pursuant to Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part, and that no

person or entity other than amici, their members, and their counsel

made a monetary contribution intended to fund the preparation or

submission of this brief.

2

justice. NACDL files numerous amicus briefs each year

in the U.S. Supreme Court and other federal and state

courts, seeking to provide assistance in cases that present

issues of broad importance to criminal defendants,

criminal defense lawyers, and the criminal justice system

as a whole.

Arizona Attorneys for Criminal Justice (AACJ), the

Arizona state affiliate of NACDL, was founded in 1986 in

order to give a voice to the rights of the criminally accused

and to those attorneys who defend the accused. AACJ is a

statewide non-profit membership organization of criminal

defense lawyers, law students, and associated

professionals, who are dedicated to protecting the rights

of the accused in the courts and in the legislature, to

promoting excellence in the practice of criminal law

through education, training, and mutual assistance, and to

fostering public awareness of citizens’ rights, the criminal

justice system, and the role of the defense lawyer.

The Arizona Capital Representation Project (ACRP)

is a statewide non-profit legal services organization that

assists indigent persons facing the death penalty in

Arizona through direct representation, pro bono training

and consulting services, and education. ACRP tracks and

monitors all capital prosecutions in Arizona. ACRP also

represents several individuals sentenced to life without

parole for offenses committed when juveniles.

The Arizona Justice Project (AJP) is a non-profit

organization dedicated to preventing and overturning

wrongful convictions and other manifest injustices, such

as excessive or unconstitutional sentences. Since its

founding in 1998, AJP has received several thousands of

requests for assistance from individuals incarcerated in

Arizona prisons and has represented numerous

individuals before courts of law and the Arizona Board of

3

Executive Clemency, including many juvenile offenders

who have been successfully rehabilitated. AJP has a

compelling interest in ensuring affected juvenile

defendants receive sentences that comply with the Eighth

Amendment’s prohibition on cruel and unusual

punishment.

The Federal Public Defender for the District of

Arizona (FPD) is the organization established under the

Criminal Justice Act of 1964, 18 U.S.C. § 3006A(g), to

provide representation of indigent criminal defendants

before the federal trial and appellate courts covering

Arizona. Under 18 U.S.C. §§ 3006A(a)(2)(B) and

3599(a)(2), the FPD also represents Arizona state

prisoners seeking relief in federal court under 28 U.S.C.

§ 2254 from their unconstitutional sentences of either

incarceration or death. The FPD has represented

numerous individuals in federal habeas proceedings

challenging the constitutionality of their life-withoutparole sentences following this Court’s decisions in Miller

and Montgomery.

Amici have a particular and informed perspective on

the operation of Arizona’s first-degree murder sentencing

scheme and Arizona’s response to this Court’s decision in

Miller declaring mandatory life-without-parole sentences

for juvenile offenders unconstitutional.

INTRODUCTION AND SUMMARY OF ARGUMENT

Dozens of juvenile offenders in Arizona—like the

petitioners in this case—were sentenced to life

imprisonment without the opportunity for any type of

release for crimes they committed as children. Because

the Arizona Legislature eliminated parole for all felonies

committed after 1993, juvenile offenders sentenced

between 1994 and 2014 in Arizona were sentenced under

4

a scheme in which judges had no discretion to grant a

parole-eligible sentence.

Despite this Court’s clear directive in Miller v.

Alabama, 567 U.S. 460 (2012), reaffirmed and made

retroactive in Montgomery v. Louisiana, 577 U.S. 190

(2016), that a sentencing scheme that requires a sentence

of life without the possibility of parole for a juvenile

offender constitutes cruel and unusual punishment in

violation of the Eighth Amendment, the State of Arizona

has repeatedly refused to allow individuals who received

these unconstitutional sentences to be resentenced. While

this Court recently reaffirmed in Jones v. Mississippi

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. 98, 100 (2021), the State of Arizona

interpreted that decision to foreclose any relief to Arizona

juvenile offenders unconstitutionally sentenced to

mandatory life without parole.

In the wake of Montgomery, the Arizona Supreme

Court held that individuals like the petitioners were

entitled to postconviction evidentiary hearings at which

they could prove that their sentences did not reflect

“irreparable corruption” so as to warrant a life-withoutparole sentence. State v. Valencia, 386 P.3d 392, 395–96

(Ariz. 2016) (quoting Miller, 567 U.S. at 479–80). But in

State ex rel. Mitchell v. Cooper (“Bassett”), 535 P.3d 3

(2023), cert. denied sub nom. Bassett v. Arizona, 144 S. Ct.

2494 (2024), the Arizona Supreme Court reversed course,

holding that juvenile offenders in Arizona are not eligible

for such hearings even though their life-without-parole

sentences were mandatory at the time they were

5

imposed. 2 In these cases, the courts below followed

Bassett, even though they are factually distinct. Without

this Court’s intervention, dozens of juvenile offenders who

were unconstitutionally sentenced to mandatory lifewithout-parole sentences will lose their chance to ever

have a Miller-compliant re-sentencing hearing.

ARGUMENT

1. At the time of petitioners’ trials and sentencing

hearings, Arizona had a mandatory life-withoutparole

sentencing

scheme,

which

is

unconstitutional as applied to juveniles under

Miller.

A. At the time petitioners were sentenced, Arizona

law did not allow a sentence less severe than life

without the possibility of parole.

Miller, this Court properly identified Arizona as a

jurisdiction with a mandatory life-without-parole

sentencing scheme. See 567 U.S. at 482, 486–487 & nn.9,

13, 15. Effective January 1, 1994, the Arizona legislature

prospectively eliminated the state’s parole scheme. Ariz.

Rev. Stat. § 41-1604.09; see also State v. Vera, 334 P.3d

754, 758 (Ariz. App. 2014) (“Because the Arizona

legislature had eliminated parole for all offenders who

The Valencia court resisted characterizing the sentences as

mandatory, even as it acknowledged a sentencing judge’s lack of

discretion to impose a parole-eligible sentence. Against the backdrop

of the aggravating and mitigating factors for first-degree murder, see

Ariz. Rev. Stat. § 13-752(F), (G), the court said that the “natural life

sentences at issue… were not mandatory but did amount to sentences

of life without parole” because the “system of ‘earned release

credits,’” which replaced the parole scheme, “did not by its terms

apply to natural life sentences.” 386 P.3d at 394 (citing State v. Vera,

334 P.3d 754, 758–59 (Ariz. Ct. App. 2014)).

2

6

committed offenses after January 1, 1994…, [a

defendant’s] only possibilities for release would be

through a pardon or commutation by the governor.”)

(cleaned up). Accordingly, when petitioners were

sentenced, no sentence the judge could have legally

imposed would have allowed for the possibility of parole.

See Lynch v. Arizona, 578 U.S. 613, 615 (2016) (per

curiam) (“But under state law, the only kind of release for

which Lynch would have been eligible—as the State does

not contest—is executive clemency.”).

In Bassett, the state argued that some Arizona courts’

mistaken belief that parole was still available after 1994

somehow converts Arizona’s sentencing scheme into one

that did not mandatorily impose life without parole for

first-degree murder. But the Arizona Supreme Court

itself has explained that a parole-eligible sentence was not

legally available when petitioners were sentenced. See

Chaparro v. Shinn, 459 P.3d 50, 52, 54 (Ariz. 2020)

(characterizing a sentence that “include[s] parole

eligibility after he has served 25 years,” as “illegally

lenient”). In fact, the state has previously argued and

acknowledged in other cases before this Court that

Arizona did have mandatory life-without-parole

sentencing before Miller. (Pet. 11.) And the state has

continued to argue in other cases, as recently as 2022, that

Arizona’s sentencing scheme unambiguously barred

parole eligibility and that judges understood that parole

was not available. See Defendant’s Motion for

Certification or Dismissal at 2, 12–13, Chaparro v. Ryan,

No. 2:19-cv-650-DWL (D. Ariz. Mar. 27, 2019);

Supplemental Merits Brief of Plaintiff-Appellant at 5,

Shinn v. Board of Executive Clemency, No. CV-21-0275PR (Ariz. May 24, 2022) (“[I]n 1994, first-degree

murderers… were not statutorily eligible for parole; they

were eligible only for ‘release,’ i.e. commutation or

pardon.”).

7

B. The availability of clemency—the only type of

“release” that was legally available at the time

petitioners were sentenced—is not constitutionally equivalent to the possibility of parole.

If an Arizona defendant convicted of first-degree

murder after 1993 received a sentence carrying the

possibility of “release after 25 years,” the “only kind of

release” for which that defendant was statutorily eligible

was executive clemency. Lynch, 578 U.S. at 615. Yet in the

decisions below, the Arizona Supreme Court ignored this

Court’s directive in Lynch: executive clemency is not

constitutionally equivalent to parole. 578 U.S. at 615–16;

see also Solem v. Helm, 463 U.S. 277, 303 (1983)

(“Recognition of such a bare possibility [of executive

clemency] would make judicial review under the Eighth

Amendment meaningless.”).

In Graham v. Florida, this Court explicitly held that

“the remote possibility” of executive clemency is not a

constitutionally adequate substitute for parole. 560 U.S.

48, 70 (2010). Graham considered a scheme analogous to

Arizona’s: Florida had abolished its parole system, leaving

executive clemency as the only available form of release.

Id. at 57 (“Because Florida has abolished its parole

system… a life sentence gives a defendant no possibility

of release unless he is granted executive clemency.”). This

Court concluded that, in the case of juveniles, Florida’s

sentencing scheme providing for executive clemency was

not constitutionally interchangeable with one providing

for parole. Id. at 70.

The Eighth Amendment distinguishes parole, which

represents a meaningful opportunity for release, from

executive clemency, which—in Arizona especially—

amounts to a de facto natural life sentence. See

Viramontes v. Att’y Gen. of Arizona, No. 4:16-cv-151-

8

TUC-RM, 2021 WL 977170, at *2 (D. Ariz. March 16,

2021) (“Unlike parole, the chances of obtaining release

through executive clemency are slim.”); id. at *2 n.2

(citing statistics from 2013 in which parole was granted in

approximately 24% of cases, while commutation was

granted in only 0.005% of cases); see also State v.

Dansdill, 443 P.3d 990, 1000 n.10 (Ariz. Ct. App. 2019)

(“[I]n Arizona, the possibility that a life sentence may

allow for release after twenty-five years is more

theoretical than practical. Parole was eliminated for all

offenses committed after January 1, 1994, leaving

commutation or pardon as the only possibilities for

release…. The likelihood of either is so remote that the

mandatory noncapital life sentence for felony murder is

constitutionally indistinct from the mandatory noncapital

natural life sentence for premeditated murder.”) (cleaned

up). The possibility of clemency is particularly illusory in

Arizona: amici who track clemency proceedings in

Arizona are not aware of a single instance in which an

individual convicted of first-degree murder since Arizona

eliminated parole in 1994 has received a grant of executive

clemency (i.e., commutation of sentence or pardon), which

requires a recommendation from the Board of Executive

Clemency and approval by the Governor.

As in Lynch, the Arizona courts in Bassett and the

cases below continue to fail to recognize the

constitutionally significant difference between the only

type of release petitioners’ sentencing judges could

lawfully permit—executive clemency—and the type of

release Miller requires a judge to have discretion to

impose—parole.

9

2. Petitioners and other similarly situated juvenile

offenders in Arizona have never received a Millercompliant sentencing hearing; unless this Court

grants review, Arizona law will ensure that no

court and no parole board will review their capacity

for rehabilitation.

A. Because Arizona’s sentencing scheme did not

allow for a parole-eligible sentence, juvenile

offenders in Arizona, including petitioners, did

not have Miller-compliant sentencing hearings.

This Court has repeatedly held that “the Eighth

Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile

offenders.” Miller, 567 U.S. at 479; see also Jones, 593

U.S. at 118 (“Today’s decision does not disturb [the]

holding” of Miller “that a State may not impose a

mandatory life-without-parole sentence on a murderer

under 18.”). Despite these clear precedents, the Arizona

Supreme Court in Bassett held that “Miller and its

progeny do not specifically require the availability of

parole when sentencing a juvenile offender.” Bassett, 535

P.3d at 11. That is the opposite of what this Court has said

is required in Miller, Montgomery, and, most recently,

Jones: “[A]n 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.” Jones, 593 U.S. at 100 (emphasis added).

The Arizona Supreme Court’s blatant disregard of this

Court’s precedent echoes similar rulings in capital cases,

which this Court recently rejected. See Cruz v. Arizona,

598 U.S. 17, 28 (2023).

As explained above, Arizona courts sentencing

offenders like petitioners between 1994 and 2014 did not

10

have discretion to impose a life sentence that carried the

possibility of parole. Sentences that are more severe were

available, including natural life with no eligibility for any

kind of executive clemency, and death. But Miller’s

prohibition on mandatory sentencing requires a sentencer

to have discretion to impose a sentence of life with the

possibility of parole or a less severe sentence than those

two. See 567 U.S. at 474–76.

Indeed, many of the individuals—including four of the

petitioners in this case— now sentenced to natural life for

crimes committed as juveniles were sentenced at a time

when death was an available sentence. It was not until

2005 that this Court held in Roper v. Simmons that

executing a person for a crime committed during

childhood violates the Eighth Amendment. 543 U.S. 551

(2005). Prior to Simmons, Arizona law allowed certain

offenders younger than 18 to be sentenced to death. Of the

29 individuals throughout Arizona currently serving

natural life for crimes committed when they were

children, 19 were sentenced before Simmons was

decided. This timing matters for two reasons. First,

Simmons marked the beginning of a paradigm shift—

continued in this Court’s later jurisprudence through

Miller and its progeny—in how juvenile crime and

punishment are understood under the Eighth

Amendment. While judges may have considered youth as

a chronological fact in pre-Simmons cases, they could not

have appreciated the constitutional significance of “youth

and its attendant characteristics” that this Court has since

held must factor into sentencing. Jones, 593 U.S. at 111

(quoting Montgomery, 577 U.S. at 210). Second, because

death was an alternative available punishment, the fact

that these individuals received a less severe sentence—

natural life—indicates that they are not among the “rarest

of children, those whose crimes reflect ‘irreparable

11

corruption.’” Montgomery, 577 U.S. at 195 (quoting

Miller, 567 U.S. at 479–80).

Under Arizona’s pre-Simmons scheme, a natural-life

sentence does not reliably indicate that an individual falls

within the class of juveniles for whom a life-without-parole

sentence is constitutionally permissible. To the contrary,

in these cases, a natural life sentence reflects either a

prosecutorial or judicial determination that an individual

is not one of the “worst of the worst” for whom the

harshest possible penalty—life without the possibility of

parole—is appropriate.

B. Arizona’s sentencing procedures did not

sufficiently narrow the class of juvenile

offenders for whom natural life is an

appropriate sentence.

Simmons marked the beginning of a dramatic shift in

how juvenile offenders are treated under the Eighth

Amendment––a shift that this Court has continued to bear

out and expand in the two decades since. Simmons

described the meaningful differences between child and

adult offenders and acknowledged that these differences

are of constitutional import. 543 U.S. at 569–71. In

Simmons, the Court concluded that, given juveniles’

“diminished culpability,” the “penological justifications”

for the most severe penalty “apply to them with lesser

force than to adults.” Id. at 571. Accordingly, in Miller,

this Court stated that “given all we have said in Roper,

Graham, and this decision about children’s diminished

culpability and heightened capacity for change, we think

appropriate occasions for sentencing juveniles to this

harshest possible penalty [i.e., life without the possibility

of parole] will be uncommon.” 567 U.S. at 479. While the

Court stopped short of outlawing life-without-parole

sentences for juveniles, it mandated that sentencers “take

12

into account how children are different, and how those

differences counsel against irrevocably sentencing them

to a lifetime in prison.” Id. at 480.

A few years later in Montgomery, this Court explained

that under Miller, “a lifetime in prison is a disproportionate sentence for all but the rarest of children, those

whose crimes reflect irreparable corruption.” 577 U.S. at

195 (cleaned up). This Court then affirmed in Jones the

outcome-driven policy behind Montgomery and Miller

that a discretionary sentencing scheme in which youth

and its attendant characteristics must be considered will

“help[] ensure that life-without-parole sentences are

imposed only in cases where that sentence is appropriate

in light of the defendant’s age,” 593 U.S. at 111–12, and

that these procedures themselves “would make lifewithout-parole sentences ‘relatively rare’ for juvenile

offenders.” Id. at 112–13. In Jones, this Court assumed

that Miller’s promise had come true, and that “when given

the choice, sentencers impose life without parole on

children relatively rarely.” Id. (quoting Miller, 567 U.S. at

483 n.10).

Unfortunately, in Arizona, Miller’s promise has not

proven true. Even assuming there was a meaningful

difference between life with the possibility of release and

natural life sentences, Arizona sentencing courts impose

natural life on juvenile offenders at an alarmingly high

rate. See Brief of Amicus Curiae Arizona Attorneys for

Criminal Justice at 11 and Appx. A, State v. Valencia, No.

CR-16-0156-PR (Ariz. July 15, 2016) (collecting data

demonstrating that more than 30% of juvenile offenders

convicted of first-degree murder in Arizona are sentenced

to natural life). And, in most cases, a child will spend more

of their life in prison than an adult who receives the same

sentence. This is hardly reconcilable with Jones’s

assumption that “when given the choice, sentencers

13

impose life without parole on children relatively rarely,”

593 U.S. at 112, and thus is more evidence that Arizona’s

scheme at the time petitioners were sentenced did not

comply with Miller’s directives.

C. The vast majority of juveniles in Arizona who

were unconstitutionally sentenced to life

without parole have not received any type of

relief since Miller.

In Jones, this Court assumed 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.” Jones, 593

U.S. at 110 n.4. But this assumption also has not proven

true in Arizona. The State of Arizona has successfully

fought to prevent re-sentencing hearings from occurring

in almost all cases. Immediately after Miller, the state

argued that Miller was not retroactive and did not provide

a basis for postconviction relief under Arizona law—a

position this Court rejected in Montgomery. Following

Montgomery, this Court vacated and remanded several

Arizona cases, finding that the Arizona courts had not

properly “take[n] into account how children are different,

and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” Tatum v.

Arizona, 580 U.S. 952, 952 (2016) (Sotomayor, J.,

concurring) (quoting Miller, 567 U.S. at 480). While a

handful of defendants were resentenced following

Montgomery and Tatum, most were not. In Maricopa

County—Arizona’s most populous county, where the vast

majority of natural life sentences in Arizona were

imposed—not a single one of the 25 juvenile offenders who

received natural life sentences has been resentenced since

Miller. This is not consistent with the Court’s assumption

when it decided Jones. Yet the State of Arizona has

continued to argue juveniles are not entitled to any

14

hearings on the constitutionality of their life-withoutparole sentences, most recently relying on this Court’s

decision in Jones to argue to Arizona courts that Miller is

meaningless in Arizona and to convince them to vacate

pending re-sentencing and postconviction proceedings.

Unlike the defendant in Jones, whose life-withoutparole sentence was upheld following a post-Miller resentencing hearing, petitioners and similarly situated

juveniles sentenced to mandatory life without parole in

Arizona have never received a re-sentencing hearing.

These individuals have never had the discretionary

sentencing at which a judge would consider a child’s

“‘diminished culpability and heightened capacity for

change’ before condemning him or her to die in prison.”

Montgomery, 577 U.S. at 195 (quoting Miller, 567 U.S at

479). As a result, Arizona’s procedures have failed to

distinguish between the “rarest” children whose crimes

reflect permanent incorrigibility—for whom life without

parole may be a permissible sentence—and the majority

of children whose crimes reflect transient immaturity—

for whom such a sentence is disproportionate under the

Eighth Amendment. Jones, 593 U.S. at 106 n.2 (quoting

Montgomery, 577 U.S. at 211).

D. The State’s arguments for denying review in

Bassett do not apply here.

In Bassett, the state encouraged this Court to deny

review because Mr. Bassett’s sentencing judge “expressly

considered whether parole-eligible sentences were

appropriate” for each of his first-degree convictions and

“imposed a sentence of ‘life with the possibility of parole

after 25 years’” on one count and natural life for the other.

Brief in Opposition at i, Bassett v. Arizona, No. 23-830

(May 7, 2024) (“Bassett BIO”). While acknowledging that

“[t]o be sure, Arizona law did not provide a parole-eligible

15

option at the time of Bassett’s sentencing,” the state

nevertheless defended the imposition of a natural life

sentence on one count because “[t]he record [in Mr.

Bassett’s case] makes clear that Bassett received a

natural life sentence only after his sentencer considered

his age and attendant characteristics and found that a

parole-eligible sentence was inappropriate for this

murder.” Id. at 1−2 (emphasis in original). The state did

not argue that a choice between two sentences, neither of

which provide eligibility for parole, would withstand

Miller; rather, the state argued that the facts of Mr.

Bassett’s case made that inquiry irrelevant. Id. at 16−18.

These arguments do not hold water here. First, there

is nothing in the record in petitioners’ cases to suggest

that the sentencing judges in these cases—or in the many

others in which relief or review has been denied since

Bassett—had a mistaken belief (like Mr. Bassett’s judge)

that they could legally sentence the defendants to a

parole-eligible sentence and considered imposing such a

sentence. (See Pet. at 24−25.) Unlike Mr. Bassett, none of

the petitioners received one natural life sentence and one

sentence of life with the possibility of parole. As explained

above, four of the petitioners—and many other similarly

situated defendants—were sentenced prior to this Court’s

decision in Simmons, making the death penalty an

available legal sentence. (See Pet. at 22−24.) In these

cases, the records show that the sentencing judges 3 were

really concerned with the choice between a death sentence

and a life sentence, with the natural life sentence being

chosen as a mitigated sentence as compared to death. The

possibility of imposing death in these cases was not

theoretical; in 1996 alone, the Arizona Supreme Court

Because many of these cases were also prior to this Court’s

decision in Ring v. Arizona, 536 U.S. 584 (2002), the capital

sentencing proceedings were handled by judges, not juries.

3

16

affirmed three death sentences imposed on juvenile

offenders. See State v. Jackson, 918 P.2d 1038 (Ariz. 1996);

State v. Laird, 920 P.2d 769 (Ariz. 1996); State v. SotoFong, 928 P.2d 610 (Ariz. 1996). In cases where death was

on the table, the sentencing judges were not thinking

about whether parole was available or if the individual

maybe one day would be released; they were considering

whether the individual was one of the worst of the worst

offenders for whom death at the hands of the state was

appropriate. In imposing the less severe sentence of

natural life, the sentencer necessarily concluded that they

were not.

Just months ago, the state in Bassett attested to this

Court that “Arizona is not arguing that the mere existence

of its two [life-without-parole] sentencing options saves it

from a Miller violation” and acknowledged that “[n]either

[sentencing] option allowed for parole-eligibility and

clemency-eligibility alone would have been insufficient.”

Bassett BIO at 22−23 (emphasis in original). The State

conceded that “[b]ut for the sentencer’s actual

consideration of parole-eligibility and the subsequent

statute effectuating this sentence, there would be a Miller

violation.” Id. at 23 (emphasis added). Based on these

concessions, the state should support review being

granted in this case. Unfortunately, the state’s arguments

in other cases suggest that it may try to change its

position on this issue once again. See State of Arizona’s

Response to Petition for Review at 14, State of Arizona v.

DeShaw et al., No. CR-24-0175-PR (Ariz. Sept. 24, 2024)

(arguing that the “discretionary process” that allowed for

a choice between two life sentences that did not legally

allow for the possibility of parole is sufficient to comply

with Miller); id. at 14−15 (“Because Bassett’s sentencer

was not required to sentence him to natural life… his

natural life sentence was not mandatory under Miller)

(internal citation omitted); id. at 17 (“While choosing

17

between natural life and life with the possibility of release,

Petitioners’ sentencers rejected the release-eligible

option based on the specific facts of each case after

considering

Petitioners’

youth

and

attendant

characteristics. That type of inquiry is what Miller

requires.”). It is alarming that in the span of four months,

the Attorney General’s office has changed its position and

is now arguing that actual consideration of parole

eligibility is not required. Compare Bassett BIO at 23.

(“But for the sentencer’s actual consideration of paroleeligibility and the subsequent statute effectuating this

sentence, there would be a Miller violation. It is the

combination of all three factors… that renders Bassett’s

natural life sentence Miller-compliant.”). This Court

should reject any such arguments in this case. The state

should not now be allowed to renege on the avowal it made

to this Court mere months ago about what it thought

Arizona law meant.

E. While Bassett is factually distinguishable from

petitioners’ cases, the lower Arizona courts

have relied on Bassett to foreclose any

possibility of resentencing or release on parole

to them and other similarly situated

defendants.

Despite the faulty logic of the Arizona Supreme

Court’s decision in Bassett, lower courts have found their

hands tied by the decision. As in petitioners’ cases, lower

courts in Arizona have denied relief and the Arizona

Supreme Court has denied review to all other juvenile

offenders in Arizona whose cases have been decided since

Bassett was issued. 4 See, e.g., State v. Pierce, No. 2 CANotably, these cases raised claims under Arizona Rule of

Criminal Procedure 32.1(g), the same state rule at issue in Cruz v.

Arizona, 598 U.S. 17 (2023).

4

18

CR 22-0160 PR (Ariz. Ct. App. Nov. 16, 2023) (denying

relief); State v. Aston, No. 1 CA-SA 22-0068 (Ariz. Ct. App.

Jan. 3, 2024) (granting special action relief and vacating

prior decision granting relief); State v. Aston, No. 1 CACR 22-0125 (Ariz. Ct. App. Oct. 1, 2024) (granting State’s

motion to dismiss appeal); State v. Conley, No. 1 CA-CR

22-0266 PRPC (Ariz. Ct. App. Feb. 6, 2024) (denying

relief); State v. Bosquez, No. 1 CA-CR 22-0360 PRPC

(Ariz. Ct. App. Feb. 6, 2024) (denying relief); State v.

Maciel, No. 1 CA-CR 23-0442 PRPC (Ariz. Ct. App. Mar.

21, 2024) (denying relief); State v. Cruz, No. 2 CA-CR

2023-0199-PR (Ariz. Ct. App. May 14, 2024) (denying

relief); State v. Rutledge, No. 1 CA-CR 22-0169 PRPC

(Ariz. Ct. App. May 16, 2024) (denying relief); State v.

Bustos, No. 1 CA-CR 23-0530 PRPC (Ariz. Ct. App. May

16, 2024) (denying relief); State v. Bustos, No. CR-240138-PR (Ariz. Oct. 15, 2024) (denying review); State v.

DeShaw, No. 1 CA-CR 21-0512 (Ariz. Ct. App. June 25,

2024) (affirming superior court order vacating

resentencing hearing and reinstating natural life

sentence); State v. Purcell, No. CA-CR 21-0541 (Ariz. Ct.

App. June 25, 2024) (same); State v. Tatum, No. CA-CR

22-0061 (Ariz. Ct. App. June 25, 2024) (same); State v.

Najar, No. CA-CR 22-0071 (Ariz. Ct. App. June 25, 2024)

(same).

While a handful of cases remain pending in the

Arizona courts, these results furnish no reason to believe

that they will depart from prior holdings. Thus, the

decisions below demonstrate that Bassett represents a

bar to all Arizona juveniles challenging their mandatory

life-without-parole sentences as unconstitutional under

Miller—a perverse result given this Court’s rulings in

Montgomery, Tatum, Jones, and Cruz.

This Court should grant review to correct the Arizona

Supreme Court’s error and allow these cases to proceed

19

to litigation on the merits of the individuals’ constitutional

claims challenging their sentences in the Arizona state

courts. The Arizona Attorney General’s Office has

previously asked this Court to deny review in similar

cases seeking certiorari review from the Ninth Circuit,

requesting this Court to delay review while Mr. Bassett’s

case was pending in state court because it was possible

that there would be a state remedy that would moot any

federal claims. See, e.g., Brief in Opposition at 27‒28, Rue

v. Thornell, No. 22-6027 (Mar. 7, 2023). The state further

argued that instead of using a habeas case subject to the

limitation on relief in 28 U.S.C. § 2254(d), “the better

vehicle [for this Court] to address the constitutionality of

Arizona [sentencing] statutes would be a decision from the

Arizona Supreme Court interpreting and analyzing those

statutes.” Id. at 28. The opportunity the State of Arizona

asked this Court to wait for in Rue is now here. The Court

should not allow the State of Arizona to continue to ignore

this Court’s precedents, to disavow its own previous

arguments, and to deny individuals with potentially

meritorious constitutional claims their day in court.

Finally, this Court in Jones concluded its analysis by

stating that the Court’s decision was “far from the last

word on whether Jones will receive relief from his

sentence” because the Court’s decision allowed him to

present his “moral and policy arguments for why he

should not be forced to spend the rest of his life in prison”

to “the state officials authorized to act on them.” Jones,

593 U.S. at 121. Unfortunately, no such opportunity exists

for juveniles like petitioners sentenced to natural life in

Arizona. Under Arizona law, a natural life sentence

prevents an individual from ever seeking review of his

sentence through any form of executive clemency and

denies him any opportunity to present evidence of his

rehabilitation. See Ariz. Rev. Stat. § 13-751(A)(1) (“A

defendant who is sentenced to natural life is not eligible

20

for commutation, parole, work furlough, work release or

release from confinement on any basis.”). As explained

above, the natural life sentence imposed on petitioners

and other juvenile offenders in Arizona is even harsher

than the life-without-parole sentences this Court

considered in Miller and Jones. If the Court allows the

decision of the Arizona Supreme Court below to stand, it

will truly shut the prison gates forever for impacted

juvenile offenders in Arizona.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

250 North 7th Avenue, Suite 600

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org

Additional counsel:

JEFFREY T. GREEN

Co-Chair, Amicus Committee

National Association of

Criminal Defense Lawyers

1660 L Street NW

Washington, DC 20036

AMY ARMSTRONG

SAM KOOISTRA

Arizona Capital

Representation Project

25 South Grande Avenue

Tucson, Arizona 85745

KAREN S. SMITH

KATHERINE PUZAUSKAS

Arizona Justice Project

4001 North 3rd Street,

Suite 401

Phoenix, Arizona 85012

DAVID J. EUCHNER

Co-Chair, Amicus Committee

Arizona Attorneys for

Criminal Justice

33 North Stone Avenue,

21st Floor

Tucson, Arizona 85701