Petition for Writ of Certiorari — Kenneth Jeremy Laird, Petitioner v. Ryan Thornell, Director, Arizona Department of Corrections, Rehabilitation and Reentry, et al.

No. 25-________

IN THE

Supreme Court of the United States

KENNETH JEREMY LAIRD,

Petitioner,

vs.

RYAN THORNELL, Director of the

Arizona Department of Corrections, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JON M. SANDS

Federal Public Defender

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 Petitioner

I

QUESTION PRESENTED

In 1994, an Arizona judge sentenced Mr. Laird to

death for a murder conviction and a total of 129 years in

prison for 13 other nonhomicide crimes. Mr. Laird was 17

years old when the murder took place. The judge did not

decide the “order” of the two sentences.

Eleven years later, this Court ruled in Roper v.

Simmons, 543 U.S. 551 (2005), that the Eighth

Amendment does not permit executing a person who

committed murder before their 18th birthday. In the wake

of that decision, the same Arizona judge, believing himself

bound as a matter of law to leave the 129-year sentence in

place, decided to reformulate the sentence for murder to

25 years to life in prison, the only other available sentence

for the murder count. He ran the murder sentence

consecutively to the 129-year aggregate sentence for the

murder counts.

This Court later held that a life-without-parole

sentence violates the Eighth Amendment if imposed on a

juvenile who has not committed homicide. See Graham v.

Florida, 560 U.S. 48 (2010). It then also held that a lifewithout-parole sentence violates the Eighth Amendment

if imposed on a juvenile who has committed homicide if the

judge has no discretion to impose any other sentence. See

Miller v. Alabama, 567 U.S. 460 (2012). Later still, this

Court clarified that the ordinary sentencing discretion

historically exercised by judges suffices to satisfy the

Eighth Amendment. See Jones v. Mississippi, 593 U.S. 98

(2021).

The question presented is: Does the revised sentence

violate the Eighth Amendment?

II

PARTIES TO THE PROCEEDING

The petitioner in this Court is Kenneth Jeremy Laird.

He was the petitioner in the district court and the

appellant in the court of appeals.

The respondents in this Court are Ryan Thornell,

Director of the Arizona Department of Corrections, and

Kris Mayes, Attorney General of Arizona. They were the

respondents in the district court and the appellees in the

court of appeals.

III

RELATED PROCEEDINGS

•

Laird v. Thornell, No. 18-16634 (9th Cir. filed Aug. 30,

2018)

•

Laird v. Ryan, No. 2:17-cv-482-PHX-JAT (D. Ariz.

filed Feb. 14, 2017)

•

State of Arizona v. Laird, No. CR-16-0449-PR (Ariz.)

•

State of Arizona v. Laird, No. 1 CA-CR 14-0568 PRPC

(Ariz. Ct. App.)

•

Laird v. Schriro, No. 05-16509 (9th Cir. filed Aug. 9,

2005)

•

Laird v. Stewart, No. 2:00-cv-2410-PHX-JAT (D. Ariz.

filed Dec. 19, 2000)

•

Laird v. Stewart, No. 2:97-cv-821-PHX-SMM (D. Ariz.

filed Apr. 21, 1997)

•

State of Arizona v. Laird, No. CR-94-0137-AP (Ariz.)

•

State of Arizona v. Laird, No. CR 1993-001792

(Maricopa Co. Super. Ct.)

IV

TABLE OF CONTENTS

Opinions below ..................................................................... 1

Jurisdiction ........................................................................... 1

Constitutional and statutory provisions involved ........... 2

Statement .............................................................................. 2

Reasons for granting the petition ..................................... 7

Conclusion ........................................................................... 18

Appendix

Memorandum Decision of the Ninth Circuit, Laird v.

Thornell, No. 18-16634 (May 12, 2025) ........................... 1a

Order Adopting Report & Recommendation,

Laird v. Ryan, No. 2:17-cv-482-PHX-JAT

(D. Ariz. Aug. 29, 2018) ...................................................... 4a

Report & Recommendation, Laird v. Ryan,

No. 2:17-cv-482-PHX-JAT (BSB)

(D. Ariz. Jun. 26, 2018) .................................................... 11a

Memorandum Decision Affirming Denial of

Postconviction Relief, State v. Laird,

No. 1 CA-CR 14-0568 (Ariz. Ct. App. Oct. 4, 2016) ..... 25a

Sentencing Transcript, State v. Laird, No. CR1993001792A (Maricopa Co. Super. Ct. Jul. 8, 2005) .......... 30a

V

TABLE OF AUTHORITIES

Cases:

Atkins v. Virginia, 536 U.S. 304 (2002) ...................... 9

Ewing v. California, 538 U.S. 63 (2003) ....... 13, 14, 15

Graham v. Florida,

560 U.S. 48 (2010) .......................... 5–6, 8–10, 12–14, 16

Harmelin v. Michigan,

501 U.S. 957 (1991) .......................................... 13, 14, 15

Helm v. Thornell,

112 F.4th 674 (9th Cir. 2024) .............................. 6, 7, 12

Hope v. Pelzer, 536 U.S. 730 (2002) ........................... 16

Hutto v. Davis, 454 U.S. 370 (1982) (per curiam) ... 14

Jones v. Mississippi, 593 U.S. 98 (2021) ............ 10, 11

Laird v. Schriro, No. 05-16509,

2006 WL 3206274 (9th Cir. Nov. 6, 2006) ................... 3

Lockyer v. Andrade, 538 U.S. 63 (2003) ................... 15

Marks v. United States, 430 U.S. 188 (1977) ........... 13

Marshall v. Rodgers,

569 U.S. 58 (2013) (per curiam) ................................. 17

Miller v. Alabama,

567 U.S. 460 (2012) ...................................... 5–10, 12–13

Montgomery v. Louisiana,

577 U.S. 190 (2016) ............................................ 9–10, 13

Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013) ............ 5

Oregon v. Ice, 555 U.S. 160 (2009) ....................... 15, 16

Penry v. Lynaugh, 492 U.S. 302 (1989) ...................... 9

Ralston v. Robinson, 454 U.S. 201 (1981) ................ 16

VI

Ring v. Arizona, 536 U.S. 584 (2002) .......................... 3

Robinson v. California, 370 U.S. 660 (1962) ........... 14

Roper v. Simmons,

543 U.S. 551 (2005) ...................................... 3, 4, 7, 8, 11

Rummel v. Estelle, 445 U.S. 263 (1980) .................... 14

Solem v. Helm, 463 U.S. 277 (1983) .......................... 15

State v. Allen, 166 P.3d 111 (Ariz. Ct. App. 2007) ..... 5

State v. Althouse, 375 P.3d 475 (Or. 2016) ............... 13

State v. Barreras, 892 P.2d 852 (Ariz. 1995) .............. 4

State v. Berger, 134 P.3d 378 (Ariz. 2006) .......... 12, 13

State v. Cota, 272 P.3d 1027 (Ariz. 2012) .................. 16

State v. Fillmore,

927 P.2d 1303 (Ariz. Ct. App. 1996) ............................. 7

State v. Garza, 962 P.2d 898 (Ariz. 1998) ................. 16

State v. Jonas, 792 P.2d 705 (Ariz. 1990) .................. 12

State v. Kasic, 265 P.3d 410 (Ariz. Ct. App. 2011) .... 5

State v. Laird, 920 P.2d 769 (Ariz. 1996) .................... 3

State v. Soto-Fong, 474 P.3d 34 (Ariz. 2020) ...... 12, 13

United States v. Farley,

607 F.3d 1294 (11th Cir. 2010) ................................... 13

Walton v. Arizona, 497 U.S. 639 (1990) ...................... 3

Weems v. United States, 217 U.S. 349 (1910) .... 14–16

Williams v. Taylor, 529 U.S. 362 (2000) .................. 17

Yarborough v. Alvarado, 541 U.S. 652 (2004) ......... 17

Constitution and statutes:

U.S. Const. amend. VIII ..................................... 3, 5–17

VII

28 U.S.C. § 1254 ............................................................. 1

28 U.S.C. § 2254 ................................................. 6, 12, 17

Ariz. Rev. Stat. § 13-708 (1994) .................................... 7

Ariz. Rev. Stat. § 13-711 ............................................. 15

Ariz. Rev. Stat. § 13-1105 ............................................. 2

1

In the Supreme Court of the United States

————

NO. 25-_____

KENNETH JEREMY LAIRD, PETITIONER,

v.

RYAN THORNELL, ET AL.

————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

————

PETITION FOR A WRIT OF CERTIORARI

————

Kenneth Laird respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The memorandum decision of the court of appeals is

unreported, but is included in the appendix at 1a. The

order of the district court is also unreported, but is

included in the appendix at 4a. The magistrate judge’s

report and recommendation is likewise unreported, but is

included in the appendix at 11a.

JURISDICTION

The court of appeals entered judgment against Mr.

Laird on May 12, 2025. This petition is timely. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Eighth Amendment to the U.S. Constitution:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted.

28 U.S.C. § 2254(d):

An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of

a State court shall not be granted with respect to

any claim that was adjudicated on the merits in

State court proceedings unless the adjudication of

the claim—

(1)

resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as

determined by the Supreme Court of the

United States; or

(2)

resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

STATEMENT

On March 5, 1993, the Maricopa County Attorney filed

a complaint in superior court that accused Mr. Laird of 16

criminal charges. They included one count of first-degree

murder, in violation of Ariz. Rev. Stat. § 13-1105, and 15

nonhomicide counts including kidnapping, theft, forgery,

arson, and trafficking in stolen property. The complaint

alleged that these crimes took place in late August and

early September of 1992, when Mr. Laird was 17 years

3

and 5 months old. See State v. Laird, 920 P.2d 769, 775

(Ariz. 1996). At trial, Mr. Laird was convicted of murder

and all but two of the nonhomicide counts. On April 15,

1994 (D.C. Dkt. #17-2), the trial judge 1 sentenced him to

death on the murder count and to a total of 129 years on

the remaining 13 counts. The sentencing judge did not

specify whether the death sentence was concurrent with

or consecutive to the other sentences. Under Stanford v.

Kentucky, 492 U.S. 361 (1989), the death sentence was a

constitutionally authorized punishment for the murder

conviction.

The Arizona Supreme Court affirmed Mr. Laird’s

convictions and sentences on July 9, 1996. Laird, 920 P.2d

at 769, cert. denied, 519 U.S. 1032 (1996). After exhausting

state postconviction remedies, Mr. Laird filed a federal

habeas petition in 2001 challenging his convictions and

sentences, including the death sentence. While Mr.

Laird’s habeas petition was pending in the district court,

this Court held that sentencing a juvenile homicide

offender to death violates the Eighth Amendment. See

Roper v. Simmons, 543 U.S. 551 (2005). The district court

accordingly granted the petition with respect to the death

sentence but denied it with respect to the underlying

convictions. The Ninth Circuit ultimately affirmed the

district court’s ruling. See Laird v. Schriro, No. 05-16509,

2006 WL 3206274 (9th Cir. Nov. 6, 2006).

In the wake of the district court’s grant of relief from

the death sentence, Mr. Laird and the state stipulated

before the sentencing court that the sentence on the

murder count should be reduced to life in prison without

Under Arizona law at the time, the judge sitting without a jury

determined both eligibility for the death penalty and whether to

impose it. See Walton v. Arizona, 497 U.S. 639 (1990), overruled by

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

1

4

the possibility of parole for 25 years, the only other

sentence for first-degree murder authorized by Arizona

law at the time of the crime. See State v. Barreras, 892

P.2d 852, 859–60 & n.7 (Ariz. 1995). On July 8, 2005, the

sentencing judge held a hearing at which he would decide

whether to make the sentence for the murder count

consecutive to or concurrent with the aggregate 129-year

sentence on the other counts.

The judge commended Mr. Laird’s former federal

habeas counsel for doing a “very nice job marshalling

together all of the mitigation evidence for Mr. Laird. It is

true that almost none of this was presented to me when I

sentenced him back in the mid ‘90s. It may have been, had

I had that information, that might have tipped the scales

for me to a life sentence. It looks like all this was available.

For whatever reason it did not get to me when I sentenced

him the first time. So I commend you for your work, your

hard work, on Mr. Laird’s behave [sic].” (App. 37a)

Ultimately, however, the judge decided against running

the murder sentence concurrent to the other sentences. “I

think the US Supreme Court has given him about all the

break he is entitled to. I reject the notion that he has been

a metal prisoner [sic] since his sentences during and

during [sic] his incarceration in the Department of

Corrections.” (App. 38a) “So,” the judge concluded, “had

I had all your good work when I sentenced him the first

time, I may very well have given him—I can’t imagine I

would have given him concurrent sentences. I don’t see

any reason to give him concurrent.” (App. 38a) The judge

accordingly ordered the murder sentence to run

consecutive to the sentences on the other counts, yielding

a total aggregate sentence of 154 years to life in prison.

(App. 38a)

In the course of the next seven years, this Court would

build on the 2005 ruling in Simmons and make two more

5

landmark rulings involving juvenile sentencing. First, in

Graham v. Florida, 560 U.S. 48 (2010), the Court held that

the Eighth Amendment categorically forbids a sentence

of life without parole for a juvenile who has not been

convicted of homicide. Second, in Miller v. Alabama, 567

U.S. 460 (2012), the Court held that the Eighth

Amendment forbids imposing a life-without-parole

sentence on a juvenile homicide offender if that sentence

is mandatory under state law.

On June 19, 2013, Mr. Laird filed a pro se notice of

postconviction relief, in which he sought a new sentencing

hearing based on the changes in the law wrought by

Graham and Miller. The court appointed counsel to assist

Mr. Laird in litigating his claim and, after hearing oral

argument on the matter, denied Mr. Laird’s Miller claim

because “he has [been] and shall be eligible for parole.”

Mr. Laird appealed the denial of his Eighth

Amendment claim to the Arizona Court of Appeals. That

court affirmed the denial of relief. It rejected Mr. Laird’s

argument based on Graham, pointing to prior Arizona

caselaw holding that “Graham does not prohibit the

imposition of cumulative sentences that result in an

aggregate term of imprisonment that exceeds a juvenile’s

life expectancy.” (App. 28a (citing State v. Kasic, 265 P.3d

410, 414–15 (Ariz. Ct. App. 2011))) The court

acknowledged that the Ninth Circuit had held differently,

see Moore v. Biter, 725 F.3d 1184, 1191–94 (9th Cir. 2013),

but declined to follow Ninth Circuit precedent because

that precedent was not binding on it. (App. 29a n.5 (citing

State v. Allen, 166 P.3d 111, 116 n.4 (Ariz. Ct. App. 2007)))

The court also ruled that “Miller did nothing to modify or

otherwise change Graham in any way that would require

a different result,” because under Arizona law the

aggregate length of multiple sentences is immune from

Eighth Amendment scrutiny. (App. 29a) The Arizona

6

Supreme Court denied a timely filed petition for review

without comment.

While his petition for review was pending in the

Arizona Supreme Court, Mr. Laird filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254 in the district

court. He again asserted that his total sentence of 154

years to life in prison violates the Eighth Amendment as

interpreted in Graham and Miller. The state answered

the petition on the merits, and Mr. Laird filed a reply.

A magistrate judge recommended denying Mr.

Laird’s petition. She observed that in Graham the

Supreme Court limited its holding to cases involving “only

those juvenile offenders sentenced to life without parole

solely for a nonhomicide offense.” (App. 19a (quoting

Graham, 560 U.S. at 63)) “Considering the distinction in

Graham between homicide and nonhomicide crimes, the

Arizona Court of Appeals’ conclusion that Petitioner, who

was convicted of both homicide and non-homicide crimes,

was not entitled to relief was not contrary to, or based on

an unreasonable application of, Graham.” (App. 19a–20a)

Nor did Mr. Laird’s sentence violate Miller, because his

sentence for the murder carries the possibility of parole.

(App. 20a)

Over Mr. Laird’s objections, the district court adopted

the magistrate judge’s recommendation. (App. 9a) It

certified the denial of the petition for appeal. (App. 9a)

The court of appeals ultimately affirmed the district

court’s denial of relief. Without addressing the question

whether the limitation on relief set forth in 28

U.S.C. § 2254(d) had been satisfied, the court ruled that

Mr. Laird’s aggregate sentence did not violate the Eighth

Amendment. (App. 2a (citing Helm v. Thornell, 112 F.4th

674, 676 (9th Cir. 2024))) It ruled that the component of

Mr. Laird’s sentence that was imposed for nonhomicide

7

crimes—the 129-year aggregate sentence—resulted from

the judge’s exercise of discretion to fashion an

appropriate total punishment. (App. 3a (citing State v.

Fillmore, 927 P.2d 1303, 1313 (Ariz. Ct. App. 1996)))

Similarly, when resentencing Mr. Laird for the murder

conviction in light of this Court’s decision in Roper v.

Simmons, 543 U.S. 551 (2005), the court of appeals ruled

that that was the product of the exercise of the same kind

of discretion. (App. 3a) So all in all, “the judge had

discretion to run all of [Laird’s] sentences concurrently,

such that [he] might be incarcerated for only 25 years and

would have some of [his] lifetime out of prison.” (App. 3a

(quoting Helm, 112 F.4th at 686)) “Miller requires no

more.” (App. 3a (quoting Helm, 112 F.4th at 687))

This timely petition follows.

REASONS FOR GRANTING THE WRIT

Both the district court’s denial of Mr. Laird’s habeas

petition and the court of appeals’s decision to affirm that

denial depart so far from this Court’s modern cases

involving sentences of life-without-parole for juvenile

offenders as to require this Court’s intervention in its

supervisory role over the courts of appeals.

1. The court of appeals’s treatment of the merits of

Mr. Laird’s Eighth Amendment claim defies this Court’s

precedent. It is true, so far as it goes, that the sentencing

judge in 1994 enjoyed, as a matter of state law, the

discretion to fashion a total aggregate sentence that he

considered to be adequate punishment for the sum of Mr.

Laird’s criminal activity. See Ariz. Rev. Stat. § 13-708

(1994). But a countervailing exercise of sentencing

discretion subsumed this discretion when the judge chose

to impose a death sentence. By virtue of that choice, the

judge had no reason to exercise the full measure of his

8

discretion to order the sentences for the sum of Mr.

Laird’s criminal activity. As a practical matter, imposing

a death sentence overrode the discretion to choose the

aggregate length of the sentences for the nonhomicide

crimes. Even if the judge had run all of those sentences

concurrently, effectively making that sentence total 21

years, Mr. Laird would have remained imprisoned, with

no chance of parole, until the death sentence were carried

out.

It was only after the death sentence had been vacated

by virtue of the decision in Roper v. Simmons, 543 U.S.

551 (2005), that the trial judge could fully exercise his

discretion to choose the aggregate length of the sentence

to be imposed for the sum of Mr. Laird’s criminal conduct.

But at this point, the judge decided to tie one hand behind

his back. “The only issue” before him in 2005, he said, was

“whether I run that sentence [for the murder] consecutive

to his other sentences or concurrently.” (App. 32a) Mr.

Laird’s “other sentences” already totaled 129 years. So

even though the sentence for the murder count by itself

carried the possibility of parole, that possibility would be

nullified whether or not the judge made the murder

sentence concurrent or consecutive. However the judge in

2005 exercised the component of the nonhomicide

sentencing discretion that remained in the wake of the

1994 sentencing, there was no possibility that Mr. Laird

would ever be released on parole.

This Court’s decisions in Graham v. Florida, 560 U.S.

48 (2010), and Miller v. Alabama, 567 U.S. 460 (2012),

apply retroactively because they are substantive

limitations on punishment. 2 So this Court’s review of the

Graham held that a life-without-parole sentence for a juvenile

convicted solely of nonhomicide crimes violates the Eighth

Amendment. 560 U.S. at 75. Because this is a categorical limitation on

punishment, it is a substantive rule that applies retroactively to Mr.

2

9

sentencing judge’s exercise of his discretion is viewed

through the lens of these cases.

Under Graham, when a judge imposes sentence on a

juvenile convicted solely of nonhomicide crimes, “the

Eighth Amendment forbids the sentence of life without

parole.” 560 U.S. 74 (2010). Put another way, the Eighth

Amendment prohibits a judge “from making the

judgment at the outset” that a juvenile convicted solely of

nonhomicide crimes “never will be fit to reenter society.”

Id. at 75. A total sentence of 129 years unquestionably

reflects a decision at the outset of Mr. Laird’s prison term

that he would never be fit to reenter society. Under

Graham, then, the sentencing judge’s exercise of

discretion here yielded an unconstitutional sentence—if

Mr. Laird had not also been convicted of murder.

To be sure, Graham carefully limited its constitutional

rule to apply to “only those juvenile offenders sentenced

to life without parole solely for a nonhomicide offense.” Id.

at 63. Miller articulated a slightly different rule for

juveniles convicted of murder. Miller held that lifewithout-parole sentences for juveniles convicted of

homicide were unconstitutional if they were the product

of a mandatory sentencing rule. A mandatory sentencing

rule “mak[es] youth (and all that accompanies it)

irrelevant to imposition of that harshest prison sentence.”

Miller, 567 U.S. at 479. But in view of the homicide

conviction, the Court altered Graham’s categorical

prohibition: “Although we do not foreclose a sentencer’s

ability to make that judgment [to impose a life-withoutLaird’s case. See Penry v. Lynaugh, 492 U.S. 302, 330 (1989),

overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002).

And this Court has expressly held that Miller applies retroactively as

a substantive limitation on punishment. See Montgomery v.

Louisiana, 577 U.S. 190, 207–09 (2016).

10

parole sentence] in homicide cases, we require it to take

into account how children are different, and how those

differences counsel against irrevocably sentencing them

to a lifetime in prison.” Id. at 480. This rule, the Court

would later explain, reserved life-without-parole

sentences for only “the rare juvenile offender who

exhibits such irretrievable depravity that rehabilitation is

impossible and life without parole is justified.”

Montgomery, 577 U.S. at 208.

Nothing in Jones v. Mississippi, 593 U.S. 98 (2021),

displaces these constitutional limits on the exercise of

sentencing discretion for juveniles, whether convicted of

homicide or not. Jones involved a juvenile convicted of

murder, so it could not have affected Graham’s

categorical rule. And Jones said in no uncertain terms that

the Court did not there “overrule Miller or Montgomery.”

593 U.S. at 118. It simply clarified that the ordinary

discretion that a sentencing judge enjoys as a matter of

state law is “constitutionally necessary and

constitutionally sufficient” to satisfy the requirements of

the Eighth Amendment. Id. at 105. “That sentencing

procedure ensures that the sentencer affords

individualized consideration to, among other things, the

defendant’s chronological age and its hallmark features.”

Id. at 109 (quoting Miller, 567 U.S. at 477) (internal

quotation marks omitted).

But this qualification itself has an important caveat. If

“a sentencer considering life without parole for a

murderer who was under 18 expressly refuses as a matter

of law to consider the defendant’s youth (as opposed to,

for example, deeming the defendant’s youth to be

outweighed by other factors or deeming the defendant’s

youth to be an insufficient reason to support a lesser

sentence under the facts of the case), then the defendant

might be able to raise an Eighth Amendment claim under

11

the Court’s precedents. Id. at 115 n.7. That is what

happened at Mr. Laird’s sentencing hearing in 2005. The

judge ruled that because the “only issue” he said he had

to decide was “whether I run” the sentence for the murder

conviction “consecutive to his other sentences or

concurrently.” (App. 32a) But this artificial limitation on

his sentencing discretion tied his hands to imposing only

one sentence—life without parole. Mr. Laird was already

serving a 129-year total sentence for the nonhomicide

convictions. Standing alone, that sentence violates the

Eighth Amendment. Adding the murder conviction to the

mix meant that, in order to comply with the Eighth

Amendment, the judge had to have the discretion to

impose a sentence that carried some meaningful

opportunity to earn release on parole. But because he

limited himself from reopening the entire sentencing

package, he took that discretion away from himself.

The court of appeals thought differently by cobbling

together two separate exercises of discretion separated in

time by over 11 years. But the unconstitutional exercise of

sentencing discretion in 1994—by imposing a term of

years greater than any documented human life 3 on top of

a death sentence—did not suddenly become constitutional

simply by virtue of this Court’s decision in Simmons 11

years later. By virtue of the 129-year aggregate decision,

there still remained a decision that, irrespective of Mr.

Laird’s capacity for rehabilitation, he would never have

the chance to earn release on parole. Whatever happened

at the 2005 sentencing hearing would not have changed

this fact, because the judge did not think the law allowed

According to the Guiness Book of World Records, the oldest

woman ever to have lived died aged 122 years and 164 days.

<https://www.guinnessworldrecords.com/world-records/oldestperson-(female)>.

3

12

him to do so. Mr. Laird’s Eighth Amendment claim should

have succeeded on the merits.

2. The court of appeals pretermitted the question

whether the Arizona Court of Appeals’s decision to deny

Mr. Laird’s Eighth Amendment claim was “contrary to,

or involved an unreasonable application of, clearly

established Federal law.” 28 U.S.C. § 2254(d)(1). (App. 2a)

It reasoned that where, “as here, a petitioner must clear

two hurdles in order to obtain affirmative habeas relief on

the merits, we may uphold a denial of relief on either

ground”—either on the merits of the underlying claim, or

because the state court’s decision was within the limits of

§ 2254(d). Helm v. Thornell, 112 F.4th 674, 685 (9th Cir.

2024). If the court of appeals had treated the merits of Mr.

Laird’s Eighth Amendment claim correctly, it would then

have had to reckon with the § 2254(d) question. That was

the basis on which the district court, having adopted the

magistrate judge’s recommendation, denied relief to Mr.

Laird. (App. 6a–8a)

The state court pointed out that neither “Graham nor

Miller addressed consecutive sentences.” (App. 28a) But

it rejected Mr. Laird’s Eighth Amendment claim by

applying Arizona law holding that the aggregate length of

consecutive sentences is immune from Eighth

Amendment scrutiny. (App. 28a) If “the sentence for a

particular offense is not disproportionately long, it does

not become so merely because it is consecutive to another

sentence for a separate offense or because the consecutive

sentences are lengthy in aggregate.” State v. Berger, 134

P.3d 378, 384 (Ariz. 2006) (citing State v. Jonas, 792 P.2d

705, 712 (Ariz. 1990)). This rule applies with equal force to

Eighth Amendment challenges brought by juveniles

convicted of homicide offenses. See State v. Soto-Fong, 474

P.3d 34, 41 (Ariz. 2020) (quoting Berger, 134 P.3d at 384).

Whether or not Mr. Laird had been convicted of homicide,

13

under Arizona law he had no cognizable Eighth

Amendment claim to the aggregate length of his sentence,

even under Graham, Miller, and Montgomery. See SotoFong, 474 P.3d at 41.

This holding was contrary to this Court’s Eighth

Amendment caselaw. The “Eighth Amendment contains a

narrow proportionality principle that does not require

strict proportionality between crime and sentence but

rather forbids only extreme sentences that are grossly

disproportionate to the crime.” Graham, 560 U.S. at 59–

60 (discussing Harmelin v. Michigan, 501 U.S. 957, 997,

1000–01 (1991) (opinion of Kennedy, J.)). 4 In order to

determine whether a “sentence for a term of years is

grossly disproportionate for a particular defendant’s

crime,” courts engage in a two-step inquiry. Id. at 60.

First, the court compares “the gravity of the offense and

the severity of the sentence.” Id. (citing Harmelin, 501

U.S. at 1005 (opinion of Kennedy, J.)). If this threshold

comparison does not lead to an inference of gross

disproportionality, then the sentence is not cruel and

unusual. See Ewing v. California, 538 U.S. 11, 30 (2003)

(opinion of O’Connor, J.) (citing Harmelin, 501 U.S. at

1005 (opinion of Kennedy, J.)). 5

Second, in “the rare case in which this threshold

comparison leads to an inference of gross proportionality

the court should then compare the defendant’s sentence

Justice Kennedy’s opinion in Harmelin sets forth the holding of

the Court under the rule of Marks v. United States, 430 U.S. 188, 193

(1977). See Ewing v. California, 538 U.S. 11, 23–24 (2003); United

States v. Farley, 607 F.3d 1294, 1339–40 (11th Cir. 2010); Berger, 134

P.3d at 381 n.1.

4

Justice O’Connor’s opinion in Ewing sets forth the holding of

the Court under the Marks rule. See State v. Althouse, 375 P.3d 475,

489 n.14 (Or. 2016); Berger, 134 P.3d at 381 n.1.

5

14

with the sentences received by other offenders in the

same jurisdiction and with the sentences imposed for the

same crime in other jurisdictions.” Id. (cleaned up) (citing

Harmelin, 501 U.S. at 1005 (opinion of Kennedy, J.)). “If

this comparative analysis validates an initial judgment

that the sentence is grossly disproportionate, the

sentence is cruel and unusual.” Id. (citing Harmelin, 501

U.S. at 1005 (opinion of Kennedy, J.)).

This Court’s “cases addressing the proportionality of”

noncapital sentences consider “all of the circumstances of

the case to determine whether the sentence is

unconstitutionally excessive.” Graham, 560 U.S. at 59. A

survey of the Court’s principal cases in this area,

beginning in 1910, confirms that “all of the circumstances

of the case” under the Eighth Amendment proportionality

inquiry encompasses the aggregate length of the sentence

imposed for multiple crimes.

•

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

Court held that a sentence involving 15 years of

“hard and painful labor” in shackles, followed by

perpetual supervision on release, violated the

Eighth Amendment.

•

In Robinson v. California, 370 U.S. 660 (1962), the

Court held that imprisonment for 90 days simply

because the defendant was addicted to narcotics,

without any other culpable conduct, violated the

Eighth Amendment.

•

In Rummel v. Estelle, 445 U.S. 263 (1980), the

Court held that a sentence of life with parole for a

third felony conviction, involving theft of $120.75,

did not violate the Eighth Amendment.

•

In Hutto v. Davis, 454 U.S. 370 (1982) (per curiam),

the Court held that two consecutive 20-year

15

sentences for possessing and distributing a total of

nine ounces of marijuana did not violate the Eighth

Amendment.

•

In Solem v. Helm, 463 U.S. 277 (1983), the Court

held that a sentence of life without parole imposed

for a seventh nonviolent felony conviction violated

the Eighth Amendment.

•

In Harmelin, after looking at all aspects of the

sentence imposed, the Court held that a sentence

of life without parole, imposed as a mandatory

punishment for possession of 650 grams or more of

cocaine, did not violate the Eighth Amendment.

•

In Ewing and in Lockyer v. Andrade, 538 U.S. 63

(2003), the Court held that sentences of 25 years to

life under California’s three-strikes law, including

(in Andrade) two consecutive such sentences, did

not violate the Eighth Amendment.

In sum, for over a century the Eighth Amendment’s

proportionality requirement for noncapital sentences has

taken into account all aspects of the sentence imposed,

including the consecutive nature of those sentences. A

century after Weems, the Court characterized all such

challenges as extending to “all of the circumstances of the

case to determine whether the sentence is

unconstitutionally excessive.” Graham, 560 U.S. at 59.

Arizona follows the “common-law tradition” of

imparting to sentencing judges “unfettered discretion [to

decide] whether sentences for discrete offenses shall be

served consecutively or concurrently.” Oregon v. Ice, 555

U.S. 160, 163 (2009). State law makes consecutive

sentences the default, but allows concurrent sentences if

the judge explains the reason for making them

concurrent. See Ariz. Rev. Stat. § 13-711(A). This statute

16

“does not constrict to any degree the trial court’s

discretion to impose concurrent sentences for the

defendant’s crimes.” State v. Cota, 272 P.3d 1027, 1043

(Ariz. 2012) (quoting State v. Garza, 962 P.2d 898, 902

(Ariz. 1998)).

It is obvious that “a concurrent sentence is

traditionally imposed as a less severe sanction than a

consecutive sentence.” Ralston v. Robinson, 454 U.S. 201,

216 n.9 (1981). “The decision to impose consecutive

sentences alters the single consequence most important

to convicted noncapital defendants: their date of release

from prison.” Ice, 555 U.S. at 174 (Scalia, J., dissenting).

Thus the fact that a judge has discretion to run multiple

sentences concurrently or consecutively means that the

judge has discretion to impose either lenient or serious

punishment.

“The Cruel and Unusual Punishments Clause

prohibits the imposition of inherently barbaric

punishments under all circumstances.” Graham, 560 U.S.

at 59 (citing Hope v. Pelzer, 536 U.S. 730 (2002)).

“Embodied in the Constitution’s ban on cruel and unusual

punishments is the precept of justice that punishment for

crime should be graduated and proportioned to the

offense.” Id. (quoting Weems, 217 U.S. at 367). This

precept implies that the Eighth Amendment imposes

some limitation on a judge’s traditional sentencing

discretion. And because that traditional sentencing

discretion extends to imposing concurrent or consecutive

sentences for multiple crimes, the Eighth Amendment

also must constrain the exercise of that particular

discretion.

Arizona’s general rule against considering the

aggregate length of criminal punishment when reviewing

a sentence for gross disproportionality fails to implement

17

the core protection of the Eighth Amendment. Under

Arizona’s general rule, a patently barbaric sentence of

nearly 300 years in prison for a series of burglaries is

immune from constitutional scrutiny simply because none

of

the

component

sentences

is

individually

disproportionate to the conduct underlying each such

sentence. Yet an unbroken line of cases from this Court

extending back to 1910 makes plain that all aspects of

criminal sentencing fall under the Eighth Amendment’s

protection against cruel and unusual punishment.

Arizona’s general rule flies in the face of that longstanding

jurisprudence.

Against the backdrop of this caselaw, the district

court’s conclusion that no clearly established law applies

to Mr. Laird’s Eighth Amendment claim cannot stand.

Under § 2254(d)(1), the “lack of a Supreme Court decision

on nearly identical facts does not by itself mean that there

is no clearly established federal law, since a general

standard from this Court’s cases can supply such law.”

Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (per curiam)

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)). There is no doubt that Arizona’s rule exempting

the aggregate length of a sentence from Eighth

Amendment scrutiny is contrary to this Court’s general

rule that the gross-disproportionality inquiry encompasses all aspects of a criminal sentence. See Williams v.

Taylor, 529 U.S. 362, 405 (2000) (“A state-court decision

will certainly be contrary to our clearly established

precedent if the state court applies a rule that contradicts

the governing law set forth in our cases.”).

The district court’s error under § 2254(d) compounds

the court of appeals’s error on the merits of Mr. Laird’s

Eighth Amendment claim. This Court should intervene to

correct these gross deviations from the usual rules of

habeas and constitutional law.

18

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JON M. SANDS

Federal Public Defender

KEITH J. HILZENDEGER

Counsel of Record

Assistant Federal Public Defender

850 West Adams Street, Suite 201

Phoenix, Arizona 85007

(602) 382-2700 voice

keith_hilzendeger@fd.org