UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ DWAIN EDWARD THOMAS, Plaintiff

- Appellant,

v. KEVIN STITT, Governor; STEVEN BICKLEY, Executive Director of the Oklahoma Pardon and Parole Board; T. HASTINGS SIEGFRIED, Chair of the Oklahoma Board of Corrections; SCOTT CROW, Director of the O klahoma Department of Corrections, Defendants

- Appellees.

-------------------------- CAMPAIGN FOR THE FAIR SENTENCING OF YOUTH, Amici Curiae. No. 21

- 6011 (D.C. No. 5:20

- CV

- 00944

- D) (W.D. Okla.)

_____________________________ ____ ORDER AND JUDGMENT *

_________________________________ Before HOLMES , PHILLIPS , and EID , Circuit Judges.

_________________________________

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2) ; 10th Cir. R. 34.1(G) . The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32 .1 and 10th Cir. R. 32.1

. FILED United States Court of Appeals Tenth Circuit 

### February 1, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 12 Dwain Edward Thomas, an Oklahoma state prisoner, appeals from the district court’s order dismissing his 42 U.S.C

. § 1983 complaint on screening under
2 8 U.S.C. § 1915A (a)

- (b) (1) for failure to state a claim upon which relief may be granted. Exercising jurisdiction under 28 U.S.C. § 1291 , w e reverse and remand for further proceedings consistent with this order and judgment.
I. INTRODUCTION Mr. Thomas filed suit against the Governor of Oklahoma, the Executive Director of the Oklahoma Pardon and Parole Board (PPB) , the C hair of the Oklahoma Board of Corrections, and the D irector of the Oklahoma Department of Cor rections (DOC) claiming that Okla

. Stat. tit. 57, § 332.7

— Oklahoma’s statute governing parole consideration

— is unconstitutional as applied to juvenile homicide offenders

s entenced to life

. Mr. Thomas alleges that Oklahoma’s parole system is unconstitutional under the Eighth Amendment and Article II, § 9 of the Oklahoma Constitution because it fails to provide a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation as required by the Supreme Court’s juv enile

- sentencing precedents

. A magistrate judge screened the complaint and issued a report and recommendation to dismiss the complaint for fa ilure to state a claim upon which relief may be granted. See § 1915A(a)

- (b)(1)

. Mr. Thomas filed timely objectio ns
. The district court conducted a de novo review, overruled the objections, and adopted the magistrate judge’s recommendation. The court found that Mr. Thomas failed to state a claim for relief under the Eighth Amendment and declined to exercise Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 23 supplem ental jurisdiction over his claim under the Oklahoma Constitution. Accordingly, the court dismissed the complaint. Mr. Thomas appeals.
II. MR. THOMAS’S COMPLAINT In 1997, when he was 15 years old, Mr. Thomas pled guilty to three homicide offenses

— one count of first

- degree murder and two counts of murder . U nder the sentencing scheme applicable at the time, the court was required to impose mandatory life sentences . As such, Mr. Thomas was sentenced without any individualized decision that considered his youth or other attendant characteristics. Mr. Thomas was eligible for parole consideration after serving fifteen years of each
sentence. Mr. Thomas alleges that throughout more than two decades in prison, h e has consistently demonstrated good behavior . He has received “Excellent” or “Outstanding” ratings in all aspects of the “current patterns of behavior” section of his periodic “Adjustment Review” from the Department of Corrections (D OC). A plt. App. at 39 (internal quotation marks omitted) . Moreover, since at least 2003, Mr. Thomas has maintained “Level IV” privilege status

— the highest level an inmate may achieve under relevant operations procedures. Id

. at 7. He works as a technic ian for the facility maintenance department

— a position he has held for more than eighteen
years

— and has also achieved several certifications. In summary, Mr. Thomas maintains that he has been a model prisoner. Mr. Thomas has been considered for and denied parole on four occasions. On each occasion, his parole investigators have given favorable recommendations to the Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 34 PPB based on his demonstrated good behavior. Moreover, “ DOC classification counselors assessing [his] readiness for parole have [ repeatedly ] noted his ‘excellent ’ record and observed that the only issue hindering his release is the State’s parole system.” Id . at 38

. Mr. Thomas further maintains that “[n]othing in [his] record suggests, nor was an y finding ever made, that his crime reflected that he was among the rarest juveniles whose crime reflects permanent incorrigibility.” Id . at 37 (brackets and internal quotation marks omitted). Despite his excellent record, Mr. Thomas has never progresse d past the first stage of parole review. To the best of his knowledge, the PPB has refused to recommend him for parole solely due to the “aggravating factors associated with the original crime.” Id . at 13, 26, 36 (internal quotation marks omitted).
T ur n ing to Oklahoma’s parole system, Mr. Thomas states that PPB regulations establish only the timing of parole review and a two

- stage review process. “ The first stage is a ‘ jacket review, ’” when the PPB votes on whether to pass the offender to stage two. I d

. at 28

. At stage two, the PPB votes to determine whether to recommend parole. According to Mr. Thomas , these threadbare regulations make no distinctions or accommodations for individuals who committed crimes as juveniles. And to make matters worse, Mr. Thomas alleges “ PPB’s practices penalize [juvenile offenders] by relying on risk assessment tools that assess the individual as i f frozen i n time upon their arrival,” and , as such, do not consider their “maturation over time, accomplishments, or institutional record[s].” Id

. at 29. Further, there are no Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 45 evidentiary rules, no right to obtain expert assistance or testimony, no cross

examinati on, no compulsory process, no assistance of counsel, no right to challenge the accuracy of any information in the PPB’s file, and no right to an explanation. Mr. Thomas alleges that the authority to grant parole to any person convicted of a violent crim e , rests exclusively with the Governor

. Although the law contemplates that the Governor’s parole power may be constrained, according to
Mr. Thomas, no constraints or enforceable standards have ever been adopted. This

means the Governor can reject the PPB’s recommendation for any reason, without any explanation or opportunity for review.
III. LEGAL FRAMEWORK
Mr. Thomas’s claims are based on a serie s of Supreme Court cases beginning with Roper v. Simmons , 543 U.S. 551 (2005) , followed by Graham v. Florida , 560 U.S. 48 (2010) , continuing in Miller v. Alabama , 567 U.S. 460 (2012) and Montgomery v. Louisiana , 577 U.S. 190 (2016) , and addressed most recently in Jones v. Mississippi , 141 S. Ct. 1307 (2021) . C ollectively, these cases frame the contours of the Eighth Amendment as applied to the sentencing of juvenile offenders. Roper held that the Eighth Amendment prohibits senten cing juvenile offenders to death

. See 543 U.S. at 568 . Building on Roper , which recognized the lesser culpability of juveniles and their capacity for change, Graham held that the Eighth Amendment categorically bars sentencing juvenile offenders to life w ithout parole for non

- homicide offenses. See 560 U.S. at 74

. Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 56 I n Miller , the Court extended its reasoning in Graham to hold that the Eighth Amendment prohibits imposing a mandatory sentence of life without parole on a juvenile homicide offender. See 567 U.S. at 479

. Based on its recognition that a lifetime in prison is a disproportionate sentence for all but those juveniles whose crimes reflect “ irreparable corruption,” id

. at 479

- 80 , the Court held that that “mandatory penalty schemes” that “remov [e] youth from the balance” and “ prevent the sentencer from taking account of these central considerations,” are unconstitutional , id . at 474

. While t his does not mean that “‘[a] State is . . . required to guarantee eventual freedom,’ [it] must provide ‘ s ome meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.’” Id . at 479 (quoting Graham , 560 U.S. at 75 ).
In Montgomery , the Court gave retroactive effect to Miller’s rule that “ l ife without parole [is] an uncons titutional penalty for a class of defendants because of their status

— that is, juvenile offenders whose crimes reflect the transient immaturity of youth. ” 577 U.S. at 208

. When the State has imposed a mandatory sentence of life without parole on a homicide juvenile offender, it can cure that violation in one of two ways: (1) the State can conduct an individualized sentencing proceeding and resentence the offender to life wi thout parole if it follows a process that considers youth and its attendant characteristics 1 or (2) the State can allow juvenile homicide

1 See Jones v. Mississippi , 141 S. Ct. 1307, 1311 (2021) (holding that before sentencing a juvenile homicide offender to life without parole, a sentencer must “consider an offender’s youth and attendant characteristics , ” but need not make a specific finding regarding incorrigibility) Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 67 offenders to be considered for parole. See id . at 212

. “Allowing those offenders to be considered for parole ensure s that juveniles whose crimes reflected only transient immaturity

— and those who have since matured

— will not be forced to serve a disproportionate sentence in violation of the Eighth Amendment.” Id

. “T hose prisoners who have shown an inability to reform w ill continue to serve life sentences,” while “[t]he opportunity for release will be afforded to those who demonstrate the truth of Miller ’s central intuition

— that children who commit even heinous crimes are capable of change.” Id

. Relying on these prec edents, Mr. Thomas maintains that it is not enough for Oklahoma to impose a life sentence that makes him eligible for parole; instead, the State must operate a system that provides what the Eighth Amendment requires

— a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. He further alleges that Oklahoma’s ad hoc system of executive clemency falls wo efully short.
IV. STANDARD OF REVIEW “Dismissal for failure to state a claim is a legal question we review de novo.” Young v. Davis , 554 F.3d 1254, 1256 (10th Cir. 2009) . Our review is “ for plausibility; that is , whether the complaint includes enough [well

- pleaded] facts to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted) ; see also Ashcroft v. Iqbal , 556 U.S. 662, 679 (2009) (“When there are well

pleaded factual allegations, a court should assume their ve racity and then determine whether they plausibly give rise to an entitlement to relief.”). Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 78 A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misc onduct alleged.” Iqbal , 556 U.S. at 678 . “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. ( internal quotation marks omitted).
V. ANALYSIS The district court determined that Mr. Thomas’s complaint failed to state a claim for relief under the Eighth Amendment claim for three reasons. First, the court found “ Graham ’s holding” that “juvenile nonhomicide offenders must be afforded some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” applies only “to offenders convicted of non

- homicide offenses. ” Aplt. App. at 11 0 (in ternal quotation marks omitted). The court thus concluded that “to the extent Graham ” requires a state parole system to provide a meaningful opportunity to obtain release, “ th [ at ] requirement [] do [ es ] not extend to juvenile homicide offenders such as [Mr. Thomas].” Id. But as the Supreme Court explained
in Miller , “ Graham ’s reasoning implicates any life

- without

- parole sentence imposed on a juvenile , even as its categorical bar [against life sentences without parole] relates only to nonhomicide offenses.” 567 U.S. at 473

. Second, the district court found that although “ Miller . . . prohibits mandatory life

- without

- parole sentences for juvenile offenders” and “ Montgomery . . . provided that a Miller violation could be remedied by permitting juvenile homicide offenders to be considered for parole ,” neither case “ expanded existing parole procedures for Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 89 persons convicted as juveniles .” Aplt. App. at 110

- 11. But the Supreme Court has
not specifically addressed Mr. Thomas’s argument

— whether the Eighth Amendment requires the State to operate a parole system that affords a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, or whether simply making a juvenile lifer eligible for parole is enough. Also, a fair reading of the cases does not foreclose Mr. Thomas’s claims. Last, the district court found that “while Miller ’s holding included a procedural component in that it requires a sentencer to consider a juvenile offender’s youth and attendant characteristic s before determining that life without parole is a proportiona te sentence , that procedur e was not violated here because [ Mr. Thomas] was not sentenced to life without parole.” Id. at 111 (internal quotation marks omitted). Or as Mr. Thomas frames th e order : [T]he district court held that as long as a state on pap er offers a purported

“ parole ” system for juvenile homicide offenders, that state has satisfied its constitutional obligations even if that system operates as a wholly arbitrary system of ad hoc executive clemency that provides no meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. Aplt. Opening Br. at 24. Regardless of how the district court’s order is framed, it purports to address complex issues of first impression without an opportunity for the parties to develop the facts and their legal arguments

. O ur careful review of Mr. Thomas’s complaint and his arguments on appeal convinces us that he has stated plausible claims for Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 910 relief. This is not to say that Mr. Thomas will prevail; however, the complaint

con tains enough well

- pleaded facts to plausibly entitl e him to relief.
VI. CONCLUSION The district court’s order dismissing Mr. Thomas’s complaint is vacated, and the case remanded for further proceedings consistent with this order and judgment.

E ntered for the Court
Gregory A. Phillips Circuit Judge Appellate Case: 21-6011 Document: 010110639715 Date Filed: 02/01/2022 Page: 10