NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CEDRIC JOSEPH RUE, Jr., 

Petitioner-Appellant, 

 v. 

JULI ROBERTS, Warden, 

Respondent-Appellee.

No. 17-17290 

D.C. No. 2:15-cv-02669-PGR 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, District Judge, Presiding

Argued and Submitted February 6, 2019

Submission Vacated March 19, 2019

Resubmitted August 12, 2022

Phoenix, Arizona

Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.

Cedric Rue was convicted in Arizona state court of various crimes, including 

first-degree murder. Rue, who was sixteen at the time of the crimes, was sentenced 

to life without the possibility of parole (“LWOP”) for the murder. Rue

unsuccessfully sought post-conviction relief in state court, arguing that his sentence 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

AUG 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
 2 

violated the Eighth Amendment prohibition against cruel and unusual punishment

because of his age when the murder was committed. Rue’s 28 U.S.C. § 2254 habeas 

corpus petition was then denied by the district court, which granted a certificate of 

appealability. We affirm. 

1. Rue contends that his LWOP sentence was unconstitutional under the 

Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and 

Montgomery v. Louisiana, 577 U.S. 190 (2016), because his sentencing judge did 

not determine that he was permanently incorrigible. But that argument is foreclosed 

by Jones v. Mississippi, in which certiorari was granted for the express purpose of 

explaining “how to interpret Miller and Montgomery.” 141 S. Ct. 1307, 1313 (2021). 

Jones clarified that the Eighth Amendment categorically forbade mandatory 

sentencing schemes and required “only that a sentencer follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing” 

LWOP. Id. at 1311 (quoting Miller, 567 U.S. at 483). The Court stressed that “a

separate factual finding of permanent incorrigibility is not required,” id. at 1318, nor 

is an “on-the-record sentencing explanation with an implicit finding of permanent 

incorrigibility,” id. at 1320. The “key assumption of both Miller and Montgomery,” 

the Court explained, “was that discretionary sentencing allows the sentencer to 

consider the defendant’s youth, and thereby helps ensure that life-without-parole 

sentences are imposed only in cases where that sentence is appropriate in light of the 
3 

defendant’s age.” Id. at 1318; see also Jessup v. Shinn, 31 F.4th 1262, 1266 (9th 

Cir. 2022) (“Miller requires, for a juvenile offender, an individualized sentencing 

hearing during which the sentencing judge assesses whether the juvenile defendant 

warrants a sentence of life with the possibility of parole.”).

2. Rue’s sentencing complied with the rule announced in Jones. Arizona law 

at the time of the sentencing did not require that LWOP be imposed “automatically, 

with no individualized sentencing considerations whatsoever.” Id. at 1267; see Ariz. 

Rev. Stat. § 13-703(A) (2001). The sentencing judge explicitly considered Rue’s 

age before imposing LWOP. Rue contends that he did not receive an individualized 

hearing because the judge sentenced him and his co-defendant in a single hearing. 

But despite the consolidated hearing, the sentencing judge made separate findings 

as to each. As Jones held, the Eighth Amendment requires no more. 

3. Rue also argues that his sentence was unconstitutional because the Arizona 

legislature had in 1993 eliminated parole for crimes committed in 1994 or later, and 

had replaced parole with a credit system for early release, see Jessup, 31 F.4th at 

1266–67, and thatstatutory scheme was not amended until after the Supreme Court’s 

decision in Miller to allow life sentences with the possibility of parole for juvenile

offenders convicted of first-degree murder, see State v. Randles, 334 P.3d 730, 732 

(Ariz. Ct. App. 2014). However, in Jessup, we found that habeas relief was not 

warranted in these circumstances because in imposing an LWOP sentence, the 
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sentencing judge considered the defendant’s “age and other relevant considerations” 

before concluding that no possibility of release was warranted. 31 F.4th at 1267. 

We also noted that nothing “in the record suggests that the precise form of potential 

release at issue had any effect on the sentencing judge’s exercise of discretion. Much 

to the contrary, the record makes clear that the sentencing judge (and everyone else 

involved) genuinely, if mistakenly, thought that he was considering a sentence of 

life with the possibility of parole.” Id. The same is true here.1

AFFIRMED.

1

 Rue’s motion for judicial notice is granted.