united states versus sam and rose versus reed was the first case for argument this morning is rue versus roberts counsel please proceed good morning your honor is may please the court my name is keith ellison dr i'm with the federal public defender's office and i represent the petitioner cedrick through i to save two minutes for rebuttal and because i know that i'm likely to get a lot of questions about all the issues in this case i want to remember to save a little bit of time in my opening presentation for a short statement about the merits but if i may i'd like to talk a lot about the statue of limitations issues in this case if i may the district court correctly ruled that equitable reasons justified overlooking the passing of the statute of limitations and reaching the merits of mr roos claim under miller versus alabama the district court actually ruled that that was the recommendation report of the magistrate judge and as i read the district court's ruling it said since i'm going to reject this claim on the merits i'm going to assume that the magistrate judge's decision was correct he says that is not what happened here yeah that that that is what happened you're looking at the district court ever really address the statute of limitations claim other than to say i assume i assume equitable tolling for purposes of my decision that is the extent of the district judges discussion of the issues yes your honor and i think that that statement amounts to an adoption of the magistrate judge's reason one says it here's here's here's the question i have for you let's assume that we agree with you that the proceedings that your client went through in a state court violated the miller rule i'm under statute of limitations issue why shouldn't we send it back to the district court to decide we don't really have a decision by anyone well this court reviews i know we could decide it right well the but and you should your honor because this court reviews the  report's findings de novo the judge didn't see any reason to disagree with him he could have he could have stayed if i remember correctly the state objected to the magistrate judge's determination that equitable tolling was a playable and the judge presumably reviewed those objections to novo because he was required to do so and he said they were correct and i think that ruling is sufficient for this court to take up the issue and decide whether that was correct if it if it decides that the issue is before counsel i'm far less troubled about the equitable tolling issue that i am how miller applies here ok so we may i'd like to focus your attention on that the  state court of appeals determine and i want to get this right the arizona revised statutes section thirteen dash seven one six remedy any unconstitutionality in the sentencing scheme because the parole was now available to juvenile offenders as you know in montgomery the court sprint cars said it was ok to correct miller type problems with an amended statute so my question to you is a problem in this case the court of appeals made a critical mistake section seven sixteen does not apply to mr ruef because because you never got a sentence of less than l wop correct your honor section seven sixteen only applies to actually grant juvenile prisoners parole when the sentencing judge determined that the sentence should be life with the possibility of release after twenty five years that section seven sixteen was designed to rule partly remedy the fact that the arizona legislature abolished the parole scheme in one thousand nine hundred four and in its wisdom the legislature decided that those juvenile defendants for whom the sentencing appeals pointed to its prior decision in the very case which said that otherwise the sentencing seems effectively mandatory let's assume that miller magon marie applies for the purpose of the question i'm about to ask you ok wasn't is there was evidence about that it was undisputed and all of that evidence suggested that mr roughead the capacity to change over time those defendants are entitled are not eligible under miller for a life of the the second answer have your honor is that didn't matter because the sentencing scheme did not allow the judge to impose a sentence that had any meaningful possibility of release when that no matter what sentence seem to assume that part away for a second i understand the argument that arizona was a mandatory l wop state at the time your your client was sentenced even if it wasn't under the statutes where is was the sentencing judge required at all to look at incorrigibility or make any determinations about it no it's just that you just simply said you balance the aggravators in the minute mitigators it's now seven fifty two was a different number that that's right and the judge in his discretion looks at the raters in the mitigators and makes a decision so even if the judge had discretion at the time as to the substantive part of miller in montgomery which is that you're supposed to not use of the specific words but make a determination  to life without possibility of parole was on constitution but there were also recognize it was going to affect a lot of people a lot of cases and so on and they wanted to be sure that each defendant in that situation had a sentencing cases the only people killed anyone what i say that any way that the judge was concerned about these things he concluded after hearing the testimony that  forty one at the time of the sentencing which isn't a shorter answer to the question that the judge did not make a finding of incorrigibility that is in any form whatsoever because under arizona law at the time that was not a consideration that is the shorter is capable of change correct and as i recall your honor he credited that testimony in mitigation yes thank you very well let's hear from government really required was that the trial court that the defendant in this case that you get an individual i sentence an under scheme that affords discretion that's plainly not true that's not what my gum recess montgomery says miller has both a procedural and substantive component the procedural component is unique it is individualized hearing to be able to have this information considered the substantive component is that only the rarest of juvenile offenders ought to be sentenced to l wop the court says the judge doesn't have to make that determination in a particular way but that's the substantive part of of miller slash montgomery so my question is where in this record can i find any indication that the judge made a determination of incorrigibility of the substance of aspect of it is the substance of the rule of consideration so your view is that all that miller requires is that the judge hear evidence about this he's not required to use it in any particular way was required to consider it it's there is need required to consider it on the issue of incorrigibility era media building don't those of us exact words appear in montgomery sure but montgomery doesn't require any sort of specific finding in all i agree i agree i'm not talking about a specific finding i'm trist trying to look at this record and see how i can possibly make the conclusion that the sentencing judge was considering incorrigibility as opposed to simply weighing a list of aggravators and mitigators which is what the statute told them today because i was the evidence i was presented before him well that may be the evidence that was presented before and but the question is whether or not there's any indication on this record that he used that evidence to make the kind of decision that montgomery and miller require of the the evidence is that under state law you're pretty he's presumed to consider everything that's presented before i we're missing each other  considered everything he was a careful judge indeed miller hadn't come down yet so he didn't know what he was supposed to do but if a judge today got this evidence in front of him because it's a miller miller in montgomery apply retroactively wouldn't the judge the crew question i told you doesn't have to be in a specific form doesn't the judge at the end of the day have to make in order to impose it all lob sentence internally and externally and whatever way a determination at this particular juvenile  but does not necessarily have to tick through each of the elements is that your analogy certainly are i mean to win when we consider under the statute it says it's considered the age but to say that i consider to juveniles age it's not just a number that's  not what what i consider that you're sixteen that's it that is my analysis no it's everything that that goes with it and all you're the state's position in this so i suppose that the other two cases that are before us is that there's no requirement under miller mcgovern marie persson it's in judge to weigh transience immaturity against irreparable corruption no requirement whatsoever to to i mean there were the requirement are without making specific find if the record if that in the record it if there's been not are my findings for the purpose of the question i just asked you if there's no requirement post miller postmen grammar first sentencing judge facing a juvenile offender to weigh transience immaturity against irreparable compulsion or corruption there supreme court says this applies back ye said that montgomery merely explains miller and therefore it's part of miller because what the supreme court said the supreme court said we made clear in bill are the following now to be fair justice scalia said no you didn't but we don't get the counted dissenters and the majority said this is what we said we said that it has both the procedural and substantive component in the substantive component is the one judge hawkins is talking about you not only have to hear the evidence you've got to use it in a certain way assuming that's what it said and assuming that it applies here that wasn't done here was white i think it was done here wasn't done with the there wasn't a specific way that that  him in anyway and since the evidence was presented before him the question becomes is does he didn't use permanent courts ability he didn't use trains in a majority nor should he be faulted for failing to use those specific terms but i mean phrases a little bit different than mike evilly that my colleague let's assume for a moment that of course when the milliken didn't exist yet but all of the evidence that would have been required for an appropriate miller evaluation was presented to him all things yes or as if miller existed or indeed if my camera existed and the judge made a determination with all of that in mind if it had been post armory it would have clearly qualified would it still make it in this setting where as my colleague pointed out under arizona law at the time there was no requirement to weigh that it but if the evidence was there is that sufficient to me that well don't you said the supreme court didn't say that the supreme court said here the states with mandatory l wop and arizona is one of them is listed as it listed as one of them because of the abolition of parole and we all know since graham that the possibility of executive clemency is not sufficient under under miller the supreme court right or wrong they're often wrong but we're stuck with  supreme court right or wrong said this was a mandatory l wop system that's established supreme court law doesn't that end our analysis no it's at that given time again it's something that can be fixed in the future and i it wasn't fixed in any way that helps him he was required under the system at the time to be sentenced to l wop the fact that you've now fix this system for people who weren't doesn't doesn't help mr r nobody got the availability yet that the judge had the ability to vaile ability at that time well to say see i think i actually think you may be right as a matter of state law but unfortunately in this job i'm required to follow the supreme court and the supreme court said it's a say three times in the decision that arizona system is mandatory l wop and this is the kind of system that is illegal if we believe the supreme court doesn't that in the analysis no because again there was there under state law at that under the law at the time and the supreme court may have been wrong i'm giving you i'm giving you that the supreme court may have been wrong can i tell the supreme court they were wrong no you can't tell the supreme court i have to believe i'm down on the supreme court also said that you get t arizona didn't pass a law making mr roux eligible for parole it only passed a law making others eligible for parole correct but those that received the less harsh sentence there at the some of the time he was sentenced yes yes the answer my question is yes these seven sixteen did not make mr roux eligible for  question if you can move the yes or no if through were sentenced today in superior court right here in phoenix would the judge have to make a determination of irreparable versus i guess i just want to say one thing that addresses charge her with this question and maybe this is more for the benefit of those law clerks but on page four eighty six of the miller decision it says of the twenty nine interest expense mandating life without parole for children it drops a footnote footnot thirteen lists arizona as one of those states it's and as i said it may be wrong it may be wrong as a member state law i will defer to your greater expertise than mine your honor but that's what the supreme court said in miller that arizona so is it your miller say that there is no court of appeal said so in the very decision well i'm not sure it did i think it said well we can assume that our system was that way but we've now fixed it with respect to people who have been offered who got a sentence of less than  wop because we've now reinstated pro i've got a question and you may be handling this other case there's a case called jessop that's my case yes ok figured you were and it's now up on appeal and it involves this very issue  that's where the briefing is and just is that the appropriate case to address that issue or is this case also appropriate in which to address it you know i or no if you can a fruit your client or sentence today in a sentencing judge your america county said i have an evidence before me before or from one expert saying this is transit immaturity he's capable of change  a state court trial judge did that might i'm doing exactly same to him on the record i'm doing exactly what the supreme court told me to do if the subject says on the record i'm doing exactly what the supreme court told me to do i would that all of the evidence that would have been required to fully comply with miller and my cameraman presented to the judge but the law was what it was at the time the judge weighed all of it and made a determination that he did in this case with that comply with miller and my gum or even though the law at that time was different no it would not comply with miller and not come rape because simply balancing aggravating and mitigating factors and allowing aggravating factors to overcome the transit immaturity of a general defender that i want to be sure you understand my question all of those factors have been presented in the transient nature of and problems of youth and so on everything that would be normally presented in the miller mike armory hearing all that's presented he doesn't say anything about it no magic words but he makes the same kind of evaluation that he would under miller and my comrie you're saying that would would or would not qualify it would not qualify as complying with miller because because there would be no way to tell from the record that the judge actually determined maybe not made a specific finding but determined in the way that miller requires that the juvenile before him is not constitutionally ineligible for a life without  but it so i'd ask your posing counsel whether we treat this like that at thirty five fifty three a situation where you don't have to take everything off their list them as long as the judges consider them all the evidence is there and the judge considers that why would this not qualify well there's plenty of thirty fifty five thirty five fifty three a law that says the record has to be adequate for appellate review so that a reviewing court can say that the judge that but it was in this particular case before miller was decided the judge had all that before i'm you're saying that nonetheless it would not qualify no it would not qualify without some some evidence that there was this determination in the records of the problem we're all grasping with here is the problem of retroactivity and so if exactly what happened in this case twenty years ago happened today and the judge gave your client l wop i think a much stronger case could be made that he knew the law he may not have made specific findings and therefore he must have chosen incorrigibility the problem is trying to figure out what a judge did not knowing that any of this stuff was required and that's why we're struggling on posts it's with us as well the easy thing for this parts of it was directed just a court to grant a petition and and and make a superior court judge do it correctly suspect state doesn't agree to i've i've well exceeded my time right we these are important cases we answer questions so thank you both for your argument a very helpful the case just argued is submitted