FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

F REDDIE C RESPIN , Petitioner

- Appellee,

v.

C HARLES L. R YAN ; Attorney General for the State of Arizona

, Respondents

- Appellants. No. 18

- 15073

D.C. No. 2:15

- cv

- 00992

- SPL

OPINION

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted February 6, 2019

Submission Vacated March 19, 2019 Resubmitted August 12, 2022 Phoenix, Arizona

Filed August 19, 2022

Before: Michael Daly Hawkins, Milan D. Smith, Jr., and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz2 C RESPIN V

. R YAN

SUMMARY *

Habeas Corpus

The panel affirmed the district court ’ s grant of a conditional writ of habeas corpus to Freddie Crespin, who in 1995 was charged in Arizona with first

- degree murder committed when he was sixteen years old.

Because the Supreme Court had not yet held that the death penalty could not be imposed on defendants younger than eighteen when the crime occurred, Crespin faced a possible capital sentence if convicted. To avoid that possibility, he entered into a plea agreement under which he agreed to a sentence of life without the possibility of parole (LWOP). In Miller v. Alabama , 567 U.S. 460 (2012), the Supreme Court held that the imposition of LWOP for those convicted of a crime committed while under the age of ei ghteen violated the Eighth Amendment under some circumstances. Crespin unsuccessfully sought post

conviction relief (PCR) in Arizona state court. He then filed a 28 U.S.C. § 2254 habeas corpus petition. While that petition was pending, the Supreme Court held in Montgomery v. Louisiana , 577 U.S. 190 (2016), that the Miller rule was retroactive. The district court then granted the conditional writ.

The panel held that the plea agreement, in which Crespin waived the right to appeal “the judgment and sent ence to a higher court,” did not waive Crespin’s right to pursue a PCR challenge of his sentence. Nor did Crespin’s guilty plea

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.C RESPIN V

. R YAN 3

waive his ability to collaterally attack the constitutionality of his LWOP sentence, as Crespin was unaware of the Eighth Amend ment right announced in Miller when he entered into the plea agreement, let alone that he could not be sentenced to death under the not

- yet announced rule in Roper v. Simmons , 543 U.S. 551 (2005).

T he panel therefore turned to the merits of Crespin ’ s Mill er claim. The Arizona Court of Appeals found that because the trial court had the discretion to reject the plea agreement if it found the stipulated sentence inappropriate, and the judge was aware of Crespin ’ s youth and the circumstances of the crime befo re accepting the agreement, Crespin ’ s Miller rights were not violated. The panel held that this was an unreasonable application of Miller . The panel explained that under Miller , a sentencer must have discretion to impose a lesser sentence than LWOP. He re, the trial judge made it clear that he did not have this discretion. Because the judge correctly recognized that his only sentencing option was LWOP, Crespin ’ s sentencing violated the Eighth Amendment. The panel concluded that there was at least a rea sonable possibility that a sentencing proceeding conducted in accordance with Miller ’ s requirements would result in a non- LWOP sentence.

COUNSEL

Terry M

. Crist III (argued)

, Kristina Reeves, and Joshua C. Smith, Assistant Attorneys General; J.D. Nielsen, Habeas Unit Chief ; Joseph T. Maziarz , Chief Counsel; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona ; for Respondents- Appellants.4 C RESPIN V

. R YAN

Molly Brizgys (argued) , Mitchell Stein Carey Chapman PC, Phoenix, Arizona; Karen S. Smith, Arizona Justice Project, Phoenix, Arizona; for Petitioner -Appellee.

OPINION

HURWITZ, Circuit Judge:

In 1995 Freddie Crespin was charged in Arizona with first

- degree murder. The crime was committed when Crespin was sixteen years old, but because the Supreme Court had not yet held that the death penalty could not be imposed on defendants younger than eighteen when the crime occurred, see Roper v. Simmons , 543 U.S. 551 (2005), Crespin faced a possible capital sentence if convicted. To avoid that possibility, he entered into a plea agreement under which he agreed to a sentence of life without the possibility of parole (“LWOP”). After the Supreme Court dec ided in Miller v. Alabama , 567 U.S. 460 (2012), that the imposition of LWOP for those convicted of a crime committed while under the age of eighteen violated the Eighth Amendment under some circumstances, Crespin unsuccessfully sought post- conviction relie f (“PCR”) in Arizona state court. He then filed a 28 U.S.C. § 2254 habeas corpus petition, and the district court granted a conditional writ. We affirm.

I.

Betty Janecke was murdered in Apache Junction, Arizona in 1995. Crespin was promptly arrested wit h several others and charged with numerous crimes, including first

- degree murder. At the time, Arizona law provided three possible sentences for those convicted of first

- degree murder: death, LWOP, or life with the possibility of release.C RESPIN V

. R YAN 5

Ariz. Rev. Stat

. § 13

- 703(A) (1998). 1 To avoid the possibility of a death sentence, Crespin pleaded guilty to first

- degree murder; the plea agreement required an LWOP sentence. The plea agreement waived Crespin’s “right to appeal the judgment and sentence to a higher court.”

The state trial judge twice accepted the plea agreement, first in March 1998 and again in September 1998. 2 At the September hearing the judge stated that “the sentence that’s provided, no matter what testimony is presented on your behalf, and I know [your lawyer] wants your family members to talk to me, once I’ve accepted the plea agreement, you’ll receive a life sentence, which is natural life sentence with no possibility of parole, commutation of sentence, et cetera.” The court also emphasized that “there is no sentence to be given other than what’s called for in the plea agreement.”

The court then nonetheless allowed Crespin’s mother to speak. She stated that Crespin was a “wonderful son,” an

1 Because Arizona had abolished parole, see State v. Vera , 334 P.3d 754, 758

– 59 (Ariz. Ct. App. 2014), the only possibili ty of release for those sentenced to the third alternative was executive clemency, see State v. Wagner , 510 P.3d 1083, 1084 (Ariz. Ct. App. 2022). Arizona law was subsequently amended to make all defendants convicted of first

- degree murders committed whil e under the age of eighteen previously sentenced to life with the possibility of release eligible for parole. Ariz. Rev. Stat. § 13

- 716.

2 After the trial court accepted the plea agreement in March 1998, new counsel filed a motion to vacate that order, ar guing it was the result of undue pressure from previous counsel. Crespin subsequently withdrew the motion to vacate and the trial court confirmed at the September hearing that Crespin wanted to go forward with it, had spoken to his attorney about his rights, and was aware of the agreed

- upon sentence.6 C RESPIN V

. R YAN

“honor roll student,” “never a violent person,” and that he would have never committed the murder if he had not been “under the influence of Barry and under the influence of drugs.” In response, the court told Ms. Crespin that it had read letters that had been submitted on Crespin’s behalf, including one from his school principal, but reiterated that “there is no option on the nature of the sentence.” After asking counsel and the probation officer whether the imposition of LWOP was “justified,” the Court stated:

Mr. Crespin, what I’ve done is previously

a ccepted your plea agreement and made a finding, which I’ll make again, that you are guilty of the offense of murder in the first degree, in violation of A.R.S. 13

- 1105, 13

- 1101, 13

- 703, and 13

- 801, a class 1 dangerous felony.

The punishment provided for th at offense only consists of three alternative sentences. And pursuant to the recommendations of the presentence report, your plea agreement and my independent view of the underlying facts of this offense, which is set forth in the official version of the presentence report, and my independent review of the provisions of A.R.S. 13

- 703, including mitigating and aggravating factors, I’m not going to specifically list those here today, but I will find that the aggravating factor of the nature of this murder, t hat is that it was heinous and cruel, that effect in itself is reason for imposing the second highest of the three penalties allowed and that is provided in your plea agreement.C RESPIN V

. R YAN 7

So as punishment, sir, I am going to order that you serve a life term in the A rizona Department of Corrections with no possibility of parole or release until the completion of your natural life.

The court then confirmed that Crespin understood he could not “file a direct appeal to a higher Court,” but noted that Crespin had not give n up his “right to file a petition for post

conviction relief.”

After the Supreme Court decided Miller , Crespin filed a PCR petition in the Superior Court pursuant to Arizona Rule of Criminal Procedure 32, arguing that his LWOP sentence was unconstitutiona lly imposed. The Superior Court denied the petition. Crespin then filed a discretionary petition for review in the Arizona Court of Appeals. See Ariz. R. Crim. P. 32.16. That court granted review but denied relief in an unpublished memorandum. State v . Crespin , No. 2 CA

- CR 2014

- 0254

- PR, 2014 WL 7345697, at *3 (Ariz. Ct. App. Dec. 26, 2014). In relevant part, the court held that the LWOP sentence was constitutional because it was “clear from the record the court not only understood there were multiple sentencing options for first

- degree murder, but that it considered those options in the context of Crespin’s character, age and the nature of the offense before deciding if it would accept the plea agreement.” Id . Because the sentencing court “had the di scretion to reject the plea agreement if it deemed the stipulated sentence inappropriate,” the Court of Appeals perceived no Miller

error. Id . The Arizona Supreme Court denied a petition for review.

In 2015, Crespin filed a 28 U.S.C. § 2254 habeas corpus petition. While that petition was pending, the Supreme8 C RESPIN V

. R YAN

Court held that the Miller rule was retroactive. Montgomery v. Louisiana , 577 U.S. 190 (2016). The district court then granted a conditional writ

. See Crespin v. Ryan , No. CV

- 15

- 00992

- PHX

- SPL (ESW), 2016 WL 10519137, at *9 (D. Ariz. Oct. 21, 2016). This timely appeal followed.

We have jurisdiction under 28 U.S.C. § § 1291 and 2253(a). Because Crespin’s habeas corpus petition was filed after the effective date of the Anti

- Te rrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may grant relief only if the decision of the Arizona Court of Appeals was: (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Sup reme Court of the United States;” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d).

II.

Miller held that sentencing schemes requiring LWOP sentences for juveniles convicted of homicide violate the Eighth Amendment. See 567 U.S. at 489. The Court did not outright “foreclose a sentencer’s ability to [impose LWOP on juveniles] in homicide cases,” bu t required that the sentencer be able 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. The Court characterized this as an “individualized conside ration” and stated that “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Id. at 479

– 80.

In making the Miller rule retroactive, Montgomery emphasized that it was not only procedural, but also substantive. See 577 U.S. at 209. Reinforcing the languageC RESPIN V

. R YAN 9

of Miller, the Court stated that LWOP is inappropriate “for all but the rarest of juvenile offenders.” Id

. Montgomery stressed that a sentencer must not only “consider a juvenile offender’s youth and atten dant characteristics before determining that life without parole is a proportionate sentence,” id. at 209

– 10, but also the offender’s capacity for change, and that LWOP should only be imposed on an offender “whose crimes reflect permanent incorrigibility,” id . at 209, not on “a child whose crime reflects unfortunate yet transient immaturity,” id. at 208 (cleaned up).

However, Jones v. Mississippi , 141 S. Ct. 1307, 1321 (2021), while expressly disclaiming that it was overruling either Miller or Montgomery , narrowed the potential sweep of those decisions. The Court explained that under Miller

, “an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment.” Id. at 1311. The Court stressed that Miller “mandated only that a sentencer follow a c ertain process

— considering an offender’s youth and attendant characteristics

— before imposing” LWOP and did not require a factual finding that a defendant is permanently incorrigible or an “on

- the

- record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.” Id. (cleaned up). 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 tha t life

- without

- parole sentences are imposed only in cases where that sentence is appropriate in light of the defendant’s age.” Id. at 1318.

Since Jones , we have twice addressed juvenile LWOP sentences in published opinions. In United States v. Briones

,10 C RESPIN V

. R YAN

w e affirmed an LWOP sentence imposed at a post

- Miller resentencing hearing. 35 F.4th 1150, 1153, 1159 (9th Cir. 2021). We rejected the argument that Miller required a finding of incorrigibility before LWOP could be imposed, emphasizing that “a ‘discretion ary sentencing system is both constitutionally necessary and constitutionally sufficient ,’ because such discretion ‘suffices to ensure individualized consideration of a defendant’s youth.’” Id. at 1156 (quoting Jones , 141 S. Ct. at 1313, 1321). Briones’s hearing, at which the judge explained he considered the defendant’s youth, therefore was constitutional because “a sentencer with discretion to consider youth ‘necessarily will consider’ it, ‘especially if,’

— as here

— ‘defense counsel advance[d] an argument based on the defendant’s youth.’” Id. (quoting Jones , 141 S. Ct. at 1319). And in Jessup v. Shinn , we explained that Miller “requires, for a juvenile offender, an individualized sentencing hearing during which the sentencing judge assesses whether the j uvenile defendant warrants a sentence of life with the possibility of parole.” 31 F.4th 1262, 1266 (9th Cir. 2022). We held that Jessup’s sentencing hearing did not violate Miller because the sentencing judge considered the petitioner’s “age and other

re levant considerations” before concluding that he did not warrant any form of release. Id. at 1267.

III.

The state first contends that Crespin’s plea agreement waived any habeas Miller challenge and that, in any event, Miller does not apply when a defendan t chooses to forego the opportunity to argue that mitigating evidence requires a

non

- LWOP sentence by agreeing to a stipulated sentence. The Arizona Court of Appeals did not address waiver, so AEDPA deference does not apply to our analysis of thisC RESPIN V

. R YAN 11

issue. See Frantz v. Hazey , 533 F.3d 724 (9th Cir. 2008). We find no waiver.

The starting point is, of course, Crespin’s plea agreement. That agreement only waived the right to appeal “the judgment and sentence to a higher court.” As the trial court explained , this meant Crespin could not “file a direct appeal to a higher Court,” but had not given up his “right to file a petition for post

- conviction relief.” Indeed, in so providing, the agreement simply echoed Arizona law. A defendant pleading guilty in a no ncapital case in Arizona does not have the right to appeal a sentence or conviction. See Ariz. Rev. Stat. § 13

- 4033(B); Ariz. R. Crim. P. 17.1(e). Any such challenges must be instead pursued through an “of

- right” PCR proceeding. See Ariz. R. Crim. P. 32 .1; State v. Shrum , 203 P.3d 1175, 1177 (Ariz. 2009). That is what Crespin did here.

We have made “clear

. . . that a waiver of collateral attack must be express, and that a plain waiver of appeal does not suffice.” Lemke v. Ryan , 719 F.3d 1093, 1096 (9th Cir. 2013) (holding that a waiver that did “not mention collateral attack” did not bar a § 2254 petition). M oreover, a
waiver of the right to appeal a sentence does not apply if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challen ge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement.12 C RESPIN V

. R YAN

United States v. Wells , 29 F.4th 580, 587 (9th Cir. 2022). Thus, the plea agreement did not waive Cre spin’s right to pursue a PCR challenge of his sentence.

Nor did Crespin’s guilty plea waive his ability to collaterally attack the constitutionality of his LWOP sentence. The general bar on collaterally attacking guilty pleas is “predicated on the idea th at a valid guilty plea removes the issue of factual guilt from the case.” Lemke

, 719 F.3d at 1097 (cleaned up). But Crespin does not challenge his conviction, only his sentence. The cases the State relies upon, Brady v. United States , 397 U.S. 742, 752

– 53 (1970), and Dingle v. Stevenson , 840 F.3d 171, 173 (4th Cir. 2016), involved challenges to unconstitutional convictions

. 3

Moreover, a defendant cannot voluntarily and intelligently waive a constitutional right of which he is

unaware. See Iowa v. Tovar , 541 U.S. 77, 81 (2004) (“Waiver

. . . of constitutional rights in the criminal process generally, must be a knowing, intelligent act done with sufficient awareness of the relevant circumstances.”) (cleaned up); see also Johnson v. Zerbst , 304 U.S. 458, 4 64 (1938) (stating that waiver is an “intentional relinquishment or abandonment of a known right or privilege”). Crespin was of course unaware of the Eighth Amendment right announced in Miller when he entered into the plea agreement, let alone that he cou ld not be sentenced to death under the not

- yet announced rule of Roper

. See Stevens v.

3 United States v. Abarca , 985 F.2d 1012 (9th Cir. 1993), also cited by the State, is not to the contrary. Abarca waived an appeal of his federal conviction on the condition he receive a Guidelines senten ce and then argued on habeas that he should have received a lesser one. Id.
at 1013

– 14. In federal court, unlike Arizona, a defendant may directly appeal a sentence. See 18 U.S.C. § 3742.C RESPIN V

. R YAN 13

State , 422 P.3d 741, 748 (Okla. Crim. App. 2018) (stating that the petitioner “could not have been aware that he had the right to an individualized sentencing hearing b ecause this right was not recognized until the Supreme Court announced it in Miller ”), overruled on other grounds by White v. State

, 499 P.3d 762 (Okla. Crim. App. 2021).

The Fourth Circuit has declined to find waiver under identical circumstances. See Ma lvo v. Mathena

, 893 F.3d 265, 277 (4th Cir. 2018), abrogated on other grounds by Jones , 141 S. Ct. at 1313. Malvo had entered into a plea agreement with a stipulated LWOP sentence that waived his right to “appeal any decisions made by” the trial court. I d. at 270. The Fourth Circuit noted that there was no “ express waiver of Malvo’s right to challenge the constitutionality of his sentence in a collateral proceeding in light of future Supreme Court holdings.” Id. at 277. The court also “decline[d] to ho ld that Malvo implicitly waived his right to argue, based on intervening Supreme Court holdings, that his sentences were ones that the State could not constitutionally impose on him.” Id. (citing Class v. United States , 138 S. Ct. 798, 804

– 05 (2018)). We find no reason to reach a different conclusion here and therefore turn to the merits of Crespin’s Miller claim. 4

4 We question whether an express waiver of Miller rights would be enforceable. See Malvo , 893 F.3d at 276 (“[I]t is far from clear that a broad waiver of a substantive constitutional right

. . . would even be enforceable.”); Stevens , 422 P.3d at 747 (reasoning that, even when a defendant pleads guilty, “after Miller , a court is without the power to sentence a juvenile offender to life without the possibility of parole without the benefit of an individualized sentencing hearing”). But we need not today decide the issue.14 C RESPIN V

. R YAN

IV.

“A hearing where ‘youth and its attendant characteristics’ are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not. The hearing does not replace but rather gives effect to Miller ’s substantive holding.” Montgomery , 577 U.S. at 210 (citation omitted). As Jones emphasized, a sentencer must “follow a certain process

— considering an offender’s youth and attendant characteristics

— before imposing” an LWOP sentence. 141 S. Ct. at 1311.

Crespin’s sentencing did not comply with these critical requirements. Indeed, the sentencing judge recognized as much. He repeatedly stated that because he had previously approved a plea agreement providing for LWOP, nothing presented at the sentencing hearing could affect Crespin’s sentence. The judge recognized that accepting the p lea agreement automatically determined the sentence, no matter what Crespin’s “attendant characteristics” might be.

The Arizona Court of Appeals nonetheless found that because the trial court had the discretion to reject the plea agreement if it found the stipulated sentence inappropriate, and the judge was aware of Crespin’s youth and the circumstances of the crime before accepting the agreement, Crespin’s Miller rights were not violated. This was an unreasonable application of Miller

. The sentencing judg e of course had the discretion under Arizona law to either accept or reject the plea agreement. See Ariz. R. Crim. P. 17.4(d); Espinoza v. Martin , 894 P.2d 688, 690 (Ariz. 1995) (requiring a judge to “consider the merits of [a plea] agreement in light of the circumstances of the case” and “exercise his or her discretion with regard toC RESPIN V

. R YAN 15

that agreement”); State v. Superior Ct. , 611 P.2d 928, 930 (Ariz. 1980) (explaining that a court must “review the plea agreement to see if the ends of justice and the protect ion of the public are being served by such agreement”). The issue before us, however, is not whether the trial judge complied with state law, but rather whether the procedural and substantive requirements of Miller were satisfied.

They were not. The tria l judge simply considered whether the stipulated LWOP sentence could be “justified.” Miller requires more. Under Miller , a sentencer must also have the discretion to impose a lesser sentence than LWOP. Jones , 141 S. Ct. at 1311. The trial judge made it clear that he did not have this discretion, warning Crespin that it did not matter what testimony was presented on his behalf and telling Crespin’s mother that no matter what she might say, there was “no sentence to be given other than what’s called for t he in the plea agreement.” Although the judge had the discretion to determine whether this was a plea agreement that he could accept, he did not have the discretion to choose which sentence he felt was best for Crespin. See Malvo

, 893 F.3d at 276 (granti ng habeas relief despite state court’s power to accept or reject the plea agreement). Indeed, if the judge rejected the agreement, he could not have given Crespin a non

- LWOP sentence; the most he could have done without the consent of the parties was reje ct the guilty plea and proceed to trial. See State v. Oatley , 847 P.2d 625, 626

– 27 (Ariz. Ct. App. 1993). Because the judge quite correctly recognized that his only sentencing option was LWOP, Crespin’s sentencing violated the Eighth Amendment.

C.

To war rant habeas relief, the constitutional error must have “had a substantial and injurious effect or influence” on Crespin’s sentence. Brecht v. Abrahamson , 507 U.S. 619,16 C RESPIN V

. R YAN

637 (1993) (cleaned up). “There must be more than a ‘reasonable possibility’ that the error was harmful.” Davis v. Ayala , 576 U.S. 257, 268 (2015) (quoting Brecht , 507 U.S. at 637).

The State argues that Crespin cannot show the required prejudice because of the serious nature of his crime, his lack of remorse, and findings of psychologists that he would likely murder again if given the opportunity. But, because of the plea agreement, Crespin had no reason to present evidence arguing for a lesser sentence, particularly because rejection of the agreement would have put him in jeopardy of a d eath sentence. And, even on the thin record of this case, there was evidence that might have supported a lesser sentence. Crespin was only 16 when the crime was committed. His mother testified that Crespin had succumbed to negative peer influences, and his principal explained that Crespin was an “adolescent rebel” with “tremendous potential.” The trial judge, however, was not free to give weight to these facts and others under the plea agreement. There is thus at least a “reasonable possibility” that a sentencing proceeding conducted in accordance with Miller ’s requirements would result in a non

- LWOP
sentence.

AFFIRMED.