Helm, Jr. v. Shinn

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Roger Scott Helm, Jr., No. CV-20-02173-PHX-ROS 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. [14] 15 Before the Court is Petitioner Roger Scott Helm, Jr.’s Petition for a Writ of Habeas 16 Corpus Under 28 U.S.C. § 2254 . (Doc. 1). At age fourteen, Helm murdered his father, 17 mother, and sister. See State v. Helm, 245 Ariz. 560 , 561 (Ariz. Ct. App. 2018). He pled 18 guilty to avoid the death penalty and received an aggregate prison sentence of 67 years to 19 life. (Doc. 1 at 4). 20 The sole question in this petition is whether Helm’s sentence is unconstitutional 21 under Miller v. Alabama, 567 U.S. 460, 479 (2012) (“[T]he Eighth Amendment forbids a 22 sentencing scheme that mandates life in prison without possibility of parole for juvenile 23 offenders”), and Montgomery v. Louisiana, 577 U.S. 190, 208-09 (2016) (holding Miller 24 applies retroactively). The state courts held Miller does not apply, see Helm, 245 Ariz. at 25 561, and the Report and Recommendation (“R&R”) prepared by Magistrate Judge Camille 26 D. Bibles recommends the Court reach the same conclusion. (Doc. 22). The Court agrees 27 Miller does not apply to Helm and accordingly will adopt the R&R’s Miller analysis and 28 deny Helm’s application. 1 BACKGROUND 2 On April 29, 1984, Roger Scott Helm, Jr. killed his father, mother, and sister. (Doc. 3 1 at 4). He was fourteen years old at the time (Doc. 1 at 4) and possibly high on narcotics. 4 (Doc. 17-6 at 71). Helm pled guilty to one count of first-degree murder, two counts of 5 second-degree murder, and one count of armed robbery. (Doc. 1 at 4). He was sentenced 6 to 25 years to life on the first-degree murder count, 21 years each on the second-degree 7 murder counts, and 21 years on the count of armed robbery, with the murder counts to run 8 consecutively with each other and concurrently with the count of armed robbery. (Doc. 1 9 at 4). In total, he claims this amounts to a prison sentence of 67 years to life, and he is not 10 eligible for release until he will be at least age 81.1 (Doc. 1 at 4). 11 Because Helm in theory could have been subject to the death penalty, the sentencing 12 court held a hearing on January 28, 1986 to consider aggravating and mitigating factors. 13 (Doc. 17-6 at 74-77). Helm’s youth was a mitigating factor considered by the court. (Doc. 14 17-6 at 74). 15 In 2013, Helm filed a petition for post-conviction relief (“PCR”), arguing that the 16 recent decision in Miller rendered his sentence unconstitutional. (Doc. 1 at 4-6). That 17 petition was denied in 2017 and, after appealing through the state courts unsuccessfully, he 18 filed this Petition for a Writ of Habeas Corpus. (Doc. 1 at 6). 19 LEGAL STANDARD 20 The parties agree that the Anti-Terrorism and Effective Death Penalty Act 21 (“AEDPA”) of 1996 applies to this petition, even though it was enacted after Helm was 22 convicted and sentenced. (Doc. 1 at 6; Doc. 17 at 3). AEDPA precludes federal habeas 23 relief unless the state court reached “a decision that was contrary to, or involved an 24 unreasonable application of, clearly established Federal law, as determined by the Supreme 25 Court of the United States,” or “resulted in a decision that was based on an unreasonable 26 determination of the facts in light of the evidence presented in the State court proceeding.” 27 1 ). The State claims that Helm has erroneously calculated his prison term and that he will in fact be “eligible for release after serving approximately 49.5 years.” (Doc. 17 at 3). 28 Helm argues 49.5 years is the date of parole of some of his offenses, but not the date of release. (Doc. 20 at 8). [1] 28 U.S.C. § 2254 (d); Harrington v. Richter, 562 U.S. 86, 102 (2011). 2 ANALYSIS 3 I. The State Court Ruling Was Not Contrary to Clearly Established Law 4 The state court’s determination was not contrary to, or an unreasonable application 5 of, clearly established federal law. 6 In Miller, the Supreme Court held “the Eighth Amendment prohibits a sentencing 7 scheme that mandates life in prison without possibility of parole for juvenile offenders.” 8 Miller, 567 U.S. at 479 . The Court explained four years later that “Miller . . . did more 9 than require a sentencer to consider a juvenile offender's youth before imposing life without 10 parole; it established that the penological justifications for life without parole collapse in 11 light of ‘the distinctive attributes of youth.’” Montgomery, 577 U.S. at 208 (citing Miller, [12] 567 U.S. at 472 ). However, the Miller rule is limited; Miller expressly did not establish a 13 categorical bar against life sentences for juvenile offenders, Miller, 567 U.S. 479 , and did 14 not say whether the rule applies to aggregate sentences that amount to more than the 15 offender’s lifespan but are not technically life-without-parole sentences. 16 Helm is not entitled to habeas relief because he cannot show it was clearly 17 established at the time the state court denied his PCR petition that his sentence was 18 unconstitutional. See Williams v. Taylor, 529 U.S. 362, 390 (2000). “Helm argues the 19 state court contravened clearly established law because “it ruled that the consecutive nature 20 of Mr. Helm’s sentence played no part in the Eighth Amendment analysis.”2 (Doc. 1 at 8). 21 Helm cites several Supreme Court cases, such as the Three-Strikes-Law case, Lockyer v. 22 Andrade, 538 U.S. 63 (2003), in support of the principle that consecutive sentences are not 23 outside the ambit of the Eighth Amendment. (Doc. 1 at 8). This argument is misplaced, 24 however, because the state court did not actually hold consecutive sentences are not subject 25 to the Eighth Amendment. Rather, it reached the narrower holding that Miller does not [26] 2 Helm also argues the state court violated clearly established law because no judge made 27 a “permanent incorrigibility” finding prior to issuing a life sentence. (Doc. 1 at 8). However, the Supreme Court’s recent decision in Jones v. Mississippi, 141 S.Ct. 1307 , 28 1321 (2021), clarified that formal findings of permanent incorrigibility are not required prior to issuing life sentences without possibility of parole to juvenile offenders. 1 apply to consecutive sentences. See Helm, 245 Ariz. at 562. 2 That holding may be wrong.3 But even if it was wrong, it was not clearly wrong. 3 The Supreme Court has not expressly held that Miller applies to consecutive sentences; nor 4 has the Ninth Circuit.4 It therefore was not clearly established that Miller applies to 5 consecutive sentences at the time the state court decided Helm’s PCR petition. 6 II. Miller Does Not Apply to Helm’s Sentence 7 Moreover, Miller does not apply to Helm’s sentence for another reason. (Doc. 22 8 at 14-19). Miller applies only to mandatory life-without-parole sentences. See Miller, 567 9 U.S. at 479 (“[T]he Eighth Amendment forbids a sentencing scheme that mandates life in 10 prison . . . .”) (emphasis added). Helm’s sentence was not mandatory. Rather, the record 11 indicates that Helm’s counsel at his sentencing argued the sentencing judge should order 12 the two second-degree murder charges and the robbery charge to run concurrently with the 13 mandatory 25-year sentence for first-degree murder. (Doc. 17-6 at 64-65). The 14 prosecution argued for all the sentences to run consecutively. (Doc. 17-6 at 70-71). The 15 sentencing judge ordered all but one of the sentences to run consecutively because it found 16 “the Defendant is extremely dangerous and potentially a violent person . . . not subject to 17 rehabilitation,” and “who could well kill again if released, other than at a very old age.” 18 (Doc. 17-6 at 75-77). If Helms had received an aggregate sentence of 25 years, he would 19 be out of prison already and his sentence would not have been life without the possibility 20 of parole. As it is, it is possible he will live to be old enough to complete his sentence, 21 because he will be eligible for release at age 81. His sentence therefore was not a 22 mandatory sentence of life without the possibility of parole. 23 III. A Certificate of Appealability Will Be Granted 24 3 For example, the Ninth Circuit has held, in the context of non-homicide juvenile offenders, that a state court decision was contrary to clearly established law because it had 25 held a consecutive sentence amounting to 254 years was not a life sentence without possibility of parole. See Moore v. Biter, 725 F.3d 1184, 1192 (9th Cir. 2013) (“Contrary 26 to the California Court of Appeal's analysis, Graham's focus was not on the label of a ‘life sentence’—but rather on the difference between life in prison with, or without, possibility 27 of parole.”). 4 Moore v. Biter held the state court violated a clearly established Supreme Court precedent 28 concerned with non-homicide juvenile offenses, Graham v. Florida, 560 U.S. 48 (2010), not Miller. See Moore, 725 F.3d at 1192 . 1 “A state prisoner whose petition for a writ of habeas corpus is denied by a federal 2 district court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S.Ct. 759 , 3 773 (2017). To appeal, he must first obtain a certificate of appealability (“COA”) from a 4 district or appellate court. Id. A COA may issue “only if the applicant has made a 5 substantial showing of the denial of a constitutional right.” Id. (quoting 28 U.S.C. § 6 2253(c)(2)). However, the “COA inquiry . . . is not coextensive with the merits analysis. 7 At the COA stage, the only question is whether the applicant has shown that ‘jurists of 8 reason could disagree with the district court's resolution of his constitutional claims or that 9 jurists could conclude the issues presented are adequate to deserve encouragement to 10 proceed further.’” Id. (quoting Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). This 11 inquiry should occur without “full consideration of the factual or legal bases adduced in 12 support of the claims.” Miller-El, 537 U.S. at 336 . 13 A certificate of appealability will be granted. Helm’s claims are well presented and 14 jurists of reasons might disagree on the Court’s conclusion. In particular, the Court notes 15 that in Moore v. Biter, the Ninth Circuit reversed a California state court’s decision to deny 16 relief to a juvenile offender who received an aggregate consecutive sentence of 254 years. 17 Moore, 725 F.3d at 1192 . Although the Court does not interpret the Supreme Court’s cases 18 in such a manner that would render the state court’s determination contrary to clearly 19 established law, “the issues presented are adequate to deserve encouragement to proceed 20 further.” See Miller-El, 537 U.S. at 336 . 21 CONCLUSION 22 For the foregoing reasons, the R&R (Doc. 22) will be adopted, Helm’s Petition for 23 a Writ of Habeas Corpus (Doc. 1) will be denied, and a certificate of appealability will be 24 granted. 25 Accordingly, 26 IT IS ORDERED Petitioner Roger Scott Helm, Jr.’s Petition for a Writ of Habeas 27 Corpus Under 28 U.S.C. § 2254 (Doc. 1) is DENIED. 28 IT IS FURTHER ORDERED the Report and Recommendation prepared by || Magistrate Judge Camille D. Bibles is ADOPTED. 2 IT IS FURTHER ORDERED a Certificate of Appealability is GRANTED. 3 IT IS FURTHER ORDERED the Clerk of Court is directed to enter judgment 4|| against Petitioner Roger Scott Helm Jr. 5 Dated this 5th day of May, 2022. 6 fo □ 7 ( — . 9 Senior United States District Judge [28] -6-