PUBLISH
UNITED STATES CO URT OF APPEALS
FOR THE TENTH CIRCUIT

____________________ ________________ ATORRUS RAINER,
Pe titioner - Appellant,

v. MATTHEW HANSEN, Warden, Sterling Correctional Facility; and PHIL WEISER, Attorney General of the State of Colorado,
Re spondents - Appellees. No. 18-1427

__________________ _______________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1: 18-CV-00395-RPM)

____________________ _____________ Kathleen A. Lord , Lord Law Firm, LLC, Denver , Colorado, for PetitionerAppellant. Ryan A. Crane, Senior Assistant At torney General (Phillip J. Weiser, Attorney General, with him on the br iefs), Office of th e Attorney General for the State of Colorado, Denver, Colorado, for Res pondents-Appellees.

____________________ _____________ Before BRISCOE, KELLY, and BACHARACH , Circuit Judges.

____________________ _____________ BACHARACH , Circuit Judge.

__________________ ______________ FILED United States Court of Appeals Tenth Circuit 

### February 25, 2020 Christopher M. Wolpert Clerk of Court2 The Constitution requires states to offer juvenile s convicted of nonhomicide crimes “some meaningful opportunity for release based on demonstrated maturity and rehabilitation.” Graham v. Florida , 560 U.S. 48, 75 (2010). Invoking this constitutional obligatio n, Mr. Atorrus Rainer sought habeas relief, clai ming that the St ate of Colorado had deprived him of this opportunity by imposing a 112 -year sentence for crimes committed when he was a juvenile. We conclude that the State has provided Mr. Rainer with the requir ed opportunity through the comb ination of the Juveniles Convicted as Adults Program (JCAP) and the general parole
program. Background
I. The Original Sentencing After committing crimes when he was seventeen y ears old, Mr. Rainer was convicted of two counts of attempted first-degree murder, two counts of first-degree assault, one c ount of first-degree burglary, and one count of aggravated robbe ry. For these crimes, the district court sentenced Mr. Rainer to 224 years in prison. On direct appeal, the convictions were affirm ed. But the Colorado Court of Appeals ordered modification of the sentences, concluding that the prison terms for attempted first- degree murder and first-degree assault should run concurrently, rather than consecutively, b ecause the crimes3 could have been based on identical evidence. Th e Colorado Court of Appeals thus modified Mr. Rainer’s sentences to r un for 112 years.
II. The Postconvicti on Proceedings After the direct appeal, th e Supreme Court held in Graham v. Florida that the Eighth Amendment prohibits life imprisonment without the possibility of parole for juveniles convicted of nonhomicide crimes. 560 U.S. 48, 75 (2010). Under Graham , these juveniles are entitled to a meaningful opportunity for release ba sed on demonstrat ed maturity and rehabilitation. Id

. Shortly after Graham was decided, Mr. Rainer filed a postconviction motion in state district court, ar guing that his 112-year sentence was unconstitutional. Th e state district co urt held that (1) Graham was inapplicable because it ha d addressed only senten ces designated as life without parole, not lengthy te rm-of-years sentences, and (2) Graham did not apply retr oactively. The Colorado Court of Appeals reversed both holdings, concluding that Graham encompassed lengthy term-of-y ears sentences and applied retroactively. People v. Rainer , 412 P.3d 520, 531 (Colo. App. 2013). Applying these conc lusions, the Colorado Court of Appeals held that Mr. Rainer lacked a meaningf ul opportunity for release based on demonstrated maturity and rehabilitation. Id. at 534–36. The Colorado Court of Appeals found that4  Mr. Rainer’s life expectancy was between 63.8 and 72 years according to tables published by the Centers for Disease Control and

 Mr. Rainer would beco me eligible for paro le when he was 75 years old. Id. at 533–36. Because Mr. Rainer’s life expectancy preceded his eligibility for parole, the Colorado Court of Appeal s held that Mr. Rainer lacked a meaningful oppor tunity for release. The Colorado Supreme Cour t reversed, holding that Graham applied only to juveniles sentenced to life without parole for a single crime. People
v. Rainer , 394 P.3d 1141, 1144 (Colo. 2017). Becaus e Mr. Rainer had a lengthy term-of-years se ntence for six different offenses, the court reasoned, Graham did not apply. Id.
III. The Federal Habeas Proceedings Mr. Rainer then brought a federal habeas action. In district court, the respondents conceded that the Colorado Supreme Court’s decision was contrary to Graham because Graham covered lengthy prison terms as well as sentences designated as life im prisonment withou t parole. But the respondents argu ed that (1) Graham did not apply because Mr. Rainer had been convicted of homicide offenses and (2) Mr. Rainer had a meaningful opportunity for release through JCAP and Colorado’s general parole program. The district court held that

 Graham did not apply to Mr. Rainer because he was convicted of homicide offenses and5  even if Graham did apply, JCAP provided Mr. Rainer with a meaningful opportunity for release. Mr. Rainer appealed, an d we affirm. Although Graham applies, the State has provided Mr. Ra iner with a meaningful oppo rtunity for re lease through the combination of JC AP and the general parole program. Standard for Habeas Relief We engage in de novo review of the district court’s legal conclusions. Byrd v. Workman , 645 F.3d 1159, 1165 ( 10th Cir. 2011). In district court, consideration of habeas challenges is deferential to the state courts when they reject a claim on the merits. In this circumstance, 28 U.S.C. § 2254(d) prohibits habeas relief unless the state court’s decision

was

 contrary to, or involve d an unreasonable ap plication of, clearly established Federal law, as determined by the Supreme Court of the United States; or

 based on an unreasonable determin ation of the facts in light of the evidence presente d in state court. 28 U.S.C. § 2254(d). The Colorado Supreme Court reject ed Mr. Rainer’s claim on the merits. People v. Rainer , 394 P.3d 1141, 1144 (Col o. 2017). Mr. Rainer was thus subject to the restriction in § 2254(d). To determine whether th e state court’s decision was contrary to or involved an unreason able application of clearly established law, we engage6 in a two-step process. We first identify the clearly established law based on Supreme Court precedent. Williams v. Taylor , 529 U.S. 362, 379 (2000). We then determine whethe r the state court’s decisi on was contra ry to or involved an unreas onable application of the Supreme Court precedent. Id

. As the respondents c oncede, the Colorado Supr eme Court’s decision was contrary to Graham . In Budder v. Addison , a state court declined to apply Graham to a juvenile offender sent enced to 131 year s in prison, reasoning that Graham did not apply to lengthy term-of-years sentences. 851 F.3d 1047, 1059 (10th Cir. 2017). We held th at this decision was contrary to Graham , reasoning that the Suprem e Court had not drawn “any distinctions with regard to the . . . severity of nonho micide crimes a defendant had committed or indicate that anything short of homicide would rise to the level of mora l culpability that could justify a sentence of life without parole for a juvenile offender.” Id. at 157–58. Just like the state court in Budder , the Colorado Supreme Court declined to apply Graham here in light of the l ong term-of-years sentence for multiple crimes. People v. Rainer , 394 P.3d 1141, 1144 (Colo. 2017). The Colorado Supreme Court’s deci sion is thus contrary to Graham , and § 2254(d) does no t bar relief. The Constitutionality of the Sentence Though § 2254(d) does not prevent habeas relief, we conclude that Mr. Rainer’s sentence complies with Graham

.7 I. Graham applies because attempted murder is not a homicide offense. The respondents argue that Graham does not apply to Mr. Rainer because

 Graham ’s holding is limited to j uvenile offenders who were convicted of non-hom icide offenses and

 Mr. Rainer’s offenses, attemp ted first-degree murder, were homicide offenses. The district court agreed, holding that Graham did not apply. We conclude that Graham does apply here because attempted first-degree murder is not a homicide offense. Graham ’s holding is limited to offenders convic ted of non-homicide offenses. Graham v. Florida , 560 U.S. 48 , 74 (2010); see also Miller v. Alabama , 567 U.S. 460, 473 ( 2012) (“To be sure, Graham ’s flat ban on life without parole applied only to nonhomicid e crimes . . . .”). The term “homicide” is widely understood as the killing of another person. See Black’s Law Dictionary 881 (Garner editor-in-chie f, 11th ed. 2019) (giving the primary definition of “homicide” as “[t]he killing of one person by another”); I Bouvier Law Dictionary 1219 (2012) (d efining “homicide” as “[c]ausing the end of the life of anot her human being”); Bryan A. Garner, Dictionary of Legal Usage 413 (3d ed. 2009) (stating that “homicide refers . . . to the lawful or un lawful killing of a person”). The Colorado Supreme Court adheres to this broad understa nding of “homicide, ” defining it as8 “the killing of a huma n being by another.” Leopold v. People , 95 P.2d 811, 813 (Colo. 1939). Despite this widely rec ognized definition of “h omicide,” the district court and the respondents focu s on a single sentence in Graham : “The Court has recognized that defendants who do not kill, intend to kill, or foresee that life will be taken are cat egorically less deserving of the most serious forms of punishm ent than are mu rderers.” 560 U.S. 48, 69 (2010). But right after this sent ence, the Court focuses on the gravity of crimes leading to a victim’s death: There is a line “betw een homicide and other serious violent offenses against th e individual.” . . . . Serious nonhomicide crimes “may be devastating in their harm . . . but ‘in terms of moral depravity and of the injury to the person and to the public,’ . . . they cannot be co mpared to murder in their ‘severity and irrevocability.’” This is because “[l]ife is over for the victim of the murderer,” but fo r the victim of even a very serious nonhomicide crime, “life . . . is not over and normally is not beyond repair.” Although an offens e like robbery or rape is “a serious crime deserving serious punishment,” those crimes differ from homicide crimes in a moral sense. Id. (citations omitted) 1 (emphasis added). The Court thus relied on the broad understanding of “ homicide,” distinguishing between crimes based on whether they cause a death. Id . Given this context, we conclude that the

1 The citations for this passage also suggest that the distinction between homicides and othe r crimes is based on wh ether the victim dies. For example, the Graham Court cited Kennedy v. Louisiana , which explains that “har m to the victim, t hough grave, cannot be quantified in the same way as death of the vic tim.” 554 U.S. 407, 439 (2008).9 Graham Court was using the term “homicide” to refer to cr imes causing the victim’s death. With this conclusion, we consider Colorado’s version of attempted first-degree murder. This version of th e crime does not re quire the victim’s death, see People v. Beatty , 80 P.3d 847, 852 (Colo. App. 2003) (upholding a conviction for attempte d first-degree murder when the victims did not die), so it does not const itute a homicide offense under Graham

. See, e.g. , Bramlett v. Hobbs , 463 S.W.3d 283 , 288 (Ark. 2015) (holding that attempted capital murder is a non-homicide crime under Graham ); Gridine
v. State , 175 So. 3d 672, 674 (Fla. 2015) (same); State v. Tram , 378 P.3d 1014, 1021 (Haw. Ct. App. 2016) (same); State v. Hampton , 2016 WL 6915581, at *7 (Tenn. Crim. App. No v. 23, 2016) (unpublished) (same). 2 The respondents disa gree, pointing to Graham ’s (1) reliance on a study that characterized attempted murder as a homicide offense and (2) observation that Isr ael does not impose life without parole for nonhomicide offenses, limiting this sentence to juveniles convicted of homicide or attempted homicide. 560 U.S. 48, 62–64, 80–81 (2010). But reliance on a study does not mean that the Court em braced all of the

2 The only court to disa gree did so in an unpub lished opinion without analysis. Twyman v. State , 26 A.3d 215 (Del. 2011) (unpublished); see also People v. Gipson , 34 N.E.3d 560, 576 (Ill. App. Ct. 2015) (“seriously question[ing] whether attempted murder constitutes a nonhomicide offense” but declining to decide the issue).10 study’s definitions. And the Court’s observation about Israel’s practice does not override the Cour t’s ultimate holding, whic h is framed solely in terms of convicti ons for homicide. Id. at 80–81.
* * * We conclude that under Colorado la w, attempted firs t-degree murder is not a homicide offense. Graham thus applies to Mr. Rainer, and the State must provide him with a meaningful oppo rtunity for release based on demonstrated maturity and rehabilitation. Graham v. Florida , 560 U.S. 48, 75 (2010).
II. The combination of JCAP and th e general parole program gives Mr. Rainer a meaningful opport unity for release based on demonstrated maturity and rehabilitation. Mr. Rainer argues that he lacks a meaningful opport unity for release based on demonstrated maturity and rehabilitation. In our view, however, this opportunity exists th rough the combination of JCAP and the State’s general parole program. A. Mr. Rainer’s Opportunities for Release Between the Ages of 42 and 60 We first examine Mr. Ra iner’s opportunities fo r release between the ages of 42 and 60. 3 When Mr. Rainer is 42, he will become eligible for release through JCAP, the state’s specialized parole program for juvenile

3 All references to Mr. Rainer’s age are approximations because his birth date does not ap pear in the record.11 offenders. This program is generally restricted to juve nile offenders who have been convicted as adults and have served twenty years of their prison term. Colo. Rev. Stat . § 17-34-101(1)(a)(I). 4 Those offenders can apply to JCAP if they have participated in programs offered by the Colorado Department of Corrections, shown res ponsibility and commitment in these programs, accepted respon sibility for th e criminal behavior underlying their offenses, and demons trated growth and change through developmental maturity and quantifiable good beha vior during the course of their incarceration. Colo. Rev. Stat. § 17-34-101(1)(a)(I). Mr. Rainer will be elig ible to apply for JCAP at age 39. If he is accepted and completes the program in the anticipa ted three-year period, Colo. Rev. Stat. § 17-34-102(3), he co uld obtain release by the age of 42. If his application is denied, he could re -apply every three years. Colo. Rev. Stat. § 17-34-101(5). From ages 42 to 60, Mr. Rainer coul d obtain seven opportunities for rel ease through JCAP. Mr. Rainer argues that JCAP does not provide a meaningful opportunity for release b ecause the governor must ultimately grant the offender’s parole applic ation upon completion of the program. According

4 Though juvenile offend ers normally must serve only twenty years of their sentence, juvenile o ffenders convicted of certa in types of first-degree murder must first serve twenty-five years of their sentence. Colo. Rev. Stat. § 17-34-101(1)(a)(III).12 to Mr. Rainer, th is program resembles executive clemency, which Graham regarded as inadequate. 560 U.S. 48, 70, 82 (2010). Executive clemency is inadequate because it affords the governor complete discretion to approve or deny an o ffender’s application. See, e.g ., Executive Order B-002-99 § 3(A) (Feb. 16, 1999) (Colorado’s executive clemency program). Unlike executiv e clemency, JCAP constrains this discretion by requiring the governor to consider (1) the existence of extraordinary mitigating circumstances and (2) th e compatibility of early release with societal safety and we lfare. Colo. Rev. Stat. § 17-22.5- 403(4.5)(a). Moreover, JCAP creates a presumption in favor of early parole if the offender has completed the prog ram and served at least twenty-five years of the sentence. Colo. Rev. St at. § 17-34-102(8). Mr. Rainer could qualify for this presumption by age 44. JCAP thus provide s Mr. Rainer an opportunity for early release despite th e need for the gov ernor’s approval.
See Carter v. State , 192 A.3d 695, 710–11, 723–24 (Md. 2018) (holding that Graham was satisfied in Maryland by an executive order that provided for parole because the gove rnor’s discretion was cons trained by the need to consider specific factors). Mr. Rainer also questions the prac tical availability of JCAP. As he points out, consideration of his app lication for entry into JCAP could include inquiry into the seriousness of his offenses and the impact on the victims. Colo. Rev. Stat. § 17-34-101(2 ). But the record does not suggest13 that JCAP will become una vailable to Mr. Rainer based on the nature of the offense or the impact on the victims. A 2019 st atus report shows that seventeen of the JCAP applications (42%) were appr oved. Twenty-three (58%) were rejected. Colo . Dep’t of Corrections, SB 16-180 Status Report Juvenile Re-Integrati on Program, Dec. 2019. 5 Of the twenty-three unsuccessful applicants, only one applicant was re jected because of the nature of the offense. Th e report suggests that th e nature of the offense rarely bars participation in JCAP. We thus have little reason to expect rejection of Mr. Rainer’s application for JCAP based on the seriousness of the offense or imp act on the victims. 6

5 Mr. Rainer asks us to remand to the district court for an evidentiary hearing that would address the statis tical data. But Mr. Rainer did not object to our cons ideration of the information, and he had an opportunity to submit evidence to the district court an d to our court on the administration of JCAP.

6 We base our assessment of JCAP on the current evidentiary record. Subsequent data on the administration of JCAP could affect how we assess its creation of opportunities for early release based on demonstrated maturity and rehabilitation.14 B. Mr. Rainer’s Opportunities for Release Starting at Age 60 Even if Mr. Rainer do es not obtain early release th rough JCAP, he could become eligible for the state’s general parole program at 60 if he earns all available good-time credits. 7 Mr. Rainer argues that even if eligibil ity comes at age 60, Colorado’s general parole program would not satisfy Graham . We need not decide whether Colorado’s general parole program satisfies Graham . Even if it doesn’t, the prog ram gives Mr. Rainer opport unities for early release beyond the opportunities available under JCAP. Mr. Rainer downplays th e significance of the opportunity for parole, pointing to its discretion ary nature. We reject this contention. Though parole in Colorado is or dinarily discretionary, People v. Davis , 429 P.3d 82, 94 (Colo. App. 2018), it may still comply with Graham . In Graham , the Court observed that a stat e was not required to rel ease juvenile offenders;

7 The parties disagree on when Mr. Ra iner will become eligible for parole. The government says 60; Mr. Rainer says 75. But this apparent disagreement is illusory . As Mr. Rainer observes , the Colorado Court of Appeals predicted that he would b ecome eligible for parole at 75. See Part II, above. Mr. Rainer treat s this prediction as a factual finding and asks us to presume its correctness. But the Colorado Court of Appeals’s prediction does not consider (1) th e good-time credits that Mr. Rainer earned since the Court of Appeals’s issu ance of an opinion or (2) the credits that he could earn in the future. The opportuni ty for thes e credits exists as a matter of law. Colo. Rev. Stat. § 17 -22.5-405. We thus consider these credits and need not decide whether we should apply the presumption of correctness to the Court of Appeals’s prediction.15 the state needed on ly to guarantee a meaningful opportunity for release. 560 U.S. at 74–75. A discretionary pa role system can thus comply with Graham

. Mr. Rainer contends that the seve rity of the crime is the primary reason for denying parole . He bases this argument on a misreadi ng of the parole board’s 2018 report. This repor t states that the most common reason for denying parole is “the severity of the crim e of conviction or behaviors that represent risks to th e public (for example, inst itutional violations and violence).” Colo. Div. of Crim. Justi ce, Analysis of Co lorado State Board of Parole Decision s: FY 2017 Report at 8 (2018). From this evidence, one can’t tell whether an offe nder is being rejected be cause of the severity of the crime or a lack of reha bilitation. 8 Mr. Rainer also perceives shortcom ings in Colorado’s procedural safeguards for parole hearings. As Mr . Rainer points out , the state does decline to provide some procedural safeguards. But Mr. Rainer has not

8 Under Colorado’s criteria for parole, the risk of recidivism constitutes the parole board’s “centra l consideration.” Colo. Rev. Stat. § 17-22.5-404(1)(a); 8 Co lo. Code Regs. § 1511-1, 6.01(A). This focus on the risk of recidivism a llows the state parole board to promote integration into the community, an objective embraced in Graham . 560 U.S. at 74–75.16 explained how the denial of these safeguards preven ts a meaningful opportunity to demonstrate ma turity and rehabilitation. 9 Mr. Rainer instead points to the re sults in other cases, stating that the Colorado Court of Appeal s found that 90% of pa role applications are denied the first time. For this finding, the court relied on a state audit on parole decisions through 2008. The audit does not reveal any information on (1) which inmates are denied parole or (2) why they are denied parole. For example, the audit doe s not show whether any of the applicants were juveniles when they committed their cr imes. The omission of this data is significant because under Colorado law, the parole board can consider juvenile status at the time of the o ffense as a mitigatin g factor supporting parole. People v. Davis , 429 P.3d 82, 95 (C olo. Ct. App. 2018). Similar omissions render the hab eas record sparse on (1) the characteristics of the offenders who ar e denied parole the first time and (2) the reasons for the denial of first-time applications for parole. Given the sparsity of eviden ce in these two areas, the Colorado Court of Appeals’s reference to the 90% statistic does not undermine the

9 The parties disagree on whether to assess the general parole program based on (1) when th e offender becomes eligible for parole or (2) how long the offender is expected to live. But we need not resolve this disagreement.17 significance of Mr. Rainer’s opport unities for early release through Colorado’s general parole program. 10
Conclusion Under Graham v. Florida , the State of Colora do must provide Mr. Rainer with a meanin gful opportunity for early release based on demonstrated maturity and rehabilita tion. Mr. Rainer has not shown a failure by the State to pr ovide this opport unity. Under JCAP, almost half of the inmates to apply have been accepted. If Mr . Rainer obtains acceptance into the program when he becomes elig ible, he could obtain release by age 42. Even if he does not ob tain release th rough JCAP, he could obtain release by ag e 60 through the genera l parole program. In combination, JCAP and the general parole program s upply Mr. Rainer with a meanin gful opportunity for early release based on demonstrated maturity and rehabilitati on. We thus affirm the district court’s denial of habeas relief.

10 In his reply brief, Mr. Rainer asks us to remand for an evidentiary hearing based on Colora do’s general parole pr ogram. We express no opinion on whethe r the general parole program alone would suffice; we conclude only that Graham is satisfied by the combination of JCAP and Colorado’s general parole program. See p. 5, above. In any event, Mr. Rainer’s opening brief did not address the need for an evidentiary hearing, and he did not adequately develop th is argument in his reply brief. See United States v. Mendoza , 468 F.3d 1256, 1260 (10t h Cir. 2006) (reply brief too late to present an argument for reversal); United States v. Hunter , 739 F.3d 492, 495 (10th Cir. 2013) (declining to cons ider an in adequately developed argument).