PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

____________________________________ 

ATORRUS RAINER, 

 Petitioner - Appellant, 

v. 

MATTHEW HANSEN, Warden, 

Sterling Correctional Facility; and 

PHIL WEISER, Attorney General of 

the State of Colorado, 

 Respondents - 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 Attorney General (Phillip J. Weiser, 

Attorney General, with him on the briefs), Office of the Attorney General 

for the State of Colorado, Denver, Colorado, for Respondents-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 Court
2 

 The Constitution requires states to offer juveniles 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 obligation, Mr. Atorrus Rainer 

sought habeas relief, claiming that the State 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 required opportunity through the combination 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 years old, Mr. 

Rainer was convicted of two counts of attempted first-degree murder, two 

counts of first-degree assault, one count of first-degree burglary, and one 

count of aggravated robbery. For these crimes, the district court sentenced 

Mr. Rainer to 224 years in prison.

On direct appeal, the convictions were affirmed. 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, because the crimes 
3 

could have been based on identical evidence. The Colorado Court of 

Appeals thus modified Mr. Rainer’s sentences to run for 112 years. 

II. The Postconviction Proceedings 

After the direct appeal, the 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 based on demonstrated maturity and 

rehabilitation. Id. 

Shortly after Graham was decided, Mr. Rainer filed a postconviction 

motion in state district court, arguing that his 112-year sentence was 

unconstitutional. The state district court held that (1) Graham was 

inapplicable because it had addressed only sentences designated as life 

without parole, not lengthy term-of-years sentences, and (2) Graham did 

not apply retroactively. 

The Colorado Court of Appeals reversed both holdings, concluding 

that Graham encompassed lengthy term-of-years sentences and applied 

retroactively. People v. Rainer, 412 P.3d 520, 531 (Colo. App. 2013). 

Applying these conclusions, the Colorado Court of Appeals held that Mr. 

Rainer lacked a meaningful opportunity for release based on demonstrated 

maturity and rehabilitation. Id. at 534–36. The Colorado Court of Appeals 

found that 
4 

 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 become eligible for parole 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 Appeals held that Mr. Rainer 

lacked a meaningful opportunity for release. 

 The Colorado Supreme Court 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). Because Mr. Rainer had a 

lengthy term-of-years sentence 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 imprisonment without parole. But the 

respondents argued 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 and 
5 

 even if Graham did apply, JCAP provided Mr. Rainer with a 

meaningful opportunity for release. 

Mr. Rainer appealed, and we affirm. Although Graham applies, the State 

has provided Mr. Rainer with a meaningful opportunity for release through 

the combination of JCAP 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 involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of 

the United States; or 

 based on an unreasonable determination of the facts in light of 

the evidence presented in state court. 

28 U.S.C. § 2254(d). 

The Colorado Supreme Court rejected Mr. Rainer’s claim on the 

merits. People v. Rainer, 394 P.3d 1141, 1144 (Colo. 2017). Mr. Rainer 

was thus subject to the restriction in § 2254(d). 

 To determine whether the state court’s decision was contrary to or 

involved an unreasonable application of clearly established law, we engage 
6 

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 whether the state court’s decision was contrary to or 

involved an unreasonable application of the Supreme Court precedent. Id. 

 As the respondents concede, the Colorado Supreme Court’s decision 

was contrary to Graham. In Budder v. Addison, a state court declined to 

apply Graham to a juvenile offender sentenced to 131 years in prison, 

reasoning that Graham did not apply to lengthy term-of-years sentences. 

851 F.3d 1047, 1059 (10th Cir. 2017). We held that this decision was 

contrary to Graham, reasoning that the Supreme Court had not drawn “any 

distinctions with regard to the . . . severity of nonhomicide crimes a 

defendant had committed or indicate that anything short of homicide would 

rise to the level of moral 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 long term-of-years sentence 

for multiple crimes. People v. Rainer, 394 P.3d 1141, 1144 (Colo. 2017). 

The Colorado Supreme Court’s decision is thus contrary to Graham, and 

§ 2254(d) does not 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 juvenile offenders who were 

convicted of non-homicide offenses and 

 Mr. Rainer’s offenses, attempted 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 convicted 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 nonhomicide crimes . . . .”). The term 

“homicide” is widely understood as the killing of another person. See 

Black’s Law Dictionary 881 (Garner editor-in-chief, 11th ed. 2019) (giving 

the primary definition of “homicide” as “[t]he killing of one person by 

another”); I Bouvier Law Dictionary 1219 (2012) (defining “homicide” as 

“[c]ausing the end of the life of another human being”); Bryan A. Garner, 

Dictionary of Legal Usage 413 (3d ed. 2009) (stating that “homicide refers 

. . . to the lawful or unlawful killing of a person”). The Colorado Supreme 

Court adheres to this broad understanding of “homicide,” defining it as 
8 

“the killing of a human being by another.” Leopold v. People, 95 P.2d 811, 

813 (Colo. 1939). 

Despite this widely recognized definition of “homicide,” the district 

court and the respondents focus 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 categorically less deserving of the most 

serious forms of punishment than are murderers.” 560 U.S. 48, 69 (2010). 

But right after this sentence, the Court focuses on the gravity of crimes 

leading to a victim’s death: 

There is a line “between homicide and other serious violent 

offenses against the 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 compared to murder in their ‘severity and 

irrevocability.’” This is because “[l]ife is over for the victim of 

the murderer,” but for the victim of even a very serious 

nonhomicide crime, “life . . . is not over and normally is not 

beyond repair.” Although an offense 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 other crimes is based on whether the victim dies. 

For example, the Graham Court cited Kennedy v. Louisiana, which 

explains that “harm to the victim, though grave, cannot be quantified in the 

same way as death of the victim.” 554 U.S. 407, 439 (2008). 
9 

Graham Court was using the term “homicide” to refer to crimes causing the 

victim’s death. 

With this conclusion, we consider Colorado’s version of attempted 

first-degree murder. This version of the crime does not require the victim’s 

death, see People v. Beatty, 80 P.3d 847, 852 (Colo. App. 2003) (upholding 

a conviction for attempted first-degree murder when the victims did not 

die), so it does not constitute 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. Nov. 23, 2016) (unpublished) (same).2

The respondents disagree, pointing to Graham’s (1) reliance on a 

study that characterized attempted murder as a homicide offense and 

(2) observation that Israel 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 embraced all of the 

 

2

 The only court to disagree did so in an unpublished 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 Court’s ultimate holding, which is framed solely in 

terms of convictions for homicide. Id. at 80–81. 

* * * 

We conclude that under Colorado law, attempted first-degree murder 

is not a homicide offense. Graham thus applies to Mr. Rainer, and the State 

must provide him with a meaningful opportunity for release based on 

demonstrated maturity and rehabilitation. Graham v. Florida, 560 U.S. 48, 

75 (2010). 

II. The combination of JCAP and the general parole program gives 

Mr. Rainer a meaningful opportunity for release based on 

demonstrated maturity and rehabilitation. 

Mr. Rainer argues that he lacks a meaningful opportunity for release 

based on demonstrated maturity and rehabilitation. In our view, however, 

this opportunity exists through 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. Rainer’s opportunities for 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 appear in the record. 
11 

offenders. This program is generally restricted to juvenile 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 responsibility and commitment in these 

programs, accepted responsibility for the criminal behavior underlying 

their offenses, and demonstrated growth and change through developmental 

maturity and quantifiable good behavior during the course of their 

incarceration. Colo. Rev. Stat. § 17-34-101(1)(a)(I). 

Mr. Rainer will be eligible to apply for JCAP at age 39. If he is 

accepted and completes the program in the anticipated three-year period, 

Colo. Rev. Stat. § 17-34-102(3), he could 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 could obtain seven 

opportunities for release through JCAP. 

Mr. Rainer argues that JCAP does not provide a meaningful 

opportunity for release because the governor must ultimately grant the 

offender’s parole application upon completion of the program. According 

 

4

 Though juvenile offenders normally must serve only twenty years of 

their sentence, juvenile offenders convicted of certain 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, this 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 offender’s application. See, e.g., 

Executive Order B-002-99 § 3(A) (Feb. 16, 1999) (Colorado’s executive 

clemency program). Unlike executive clemency, JCAP constrains this 

discretion by requiring the governor to consider (1) the existence of 

extraordinary mitigating circumstances and (2) the compatibility of early 

release with societal safety and welfare. 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 program and served at least twenty-five 

years of the sentence. Colo. Rev. Stat. § 17-34-102(8). Mr. Rainer could 

qualify for this presumption by age 44. JCAP thus provides Mr. Rainer an 

opportunity for early release despite the need for the governor’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 governor’s discretion was constrained by the need to 

consider specific factors). 

Mr. Rainer also questions the practical availability of JCAP. As he 

points out, consideration of his application 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 suggest 
13 

that JCAP will become unavailable to Mr. Rainer based on the nature of 

the offense or the impact on the victims. A 2019 status report shows that 

seventeen of the JCAP applications (42%) were approved. Twenty-three 

(58%) were rejected. Colo. Dep’t of Corrections, SB 16-180 Status Report 

Juvenile Re-Integration Program, Dec. 2019.5

 Of the twenty-three 

unsuccessful applicants, only one applicant was rejected because of the 

nature of the offense. The report suggests that the 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 impact on the victims.6

 

 

5

 Mr. Rainer asks us to remand to the district court for an evidentiary 

hearing that would address the statistical data. But Mr. Rainer did not 

object to our consideration of the information, and he had an opportunity 

to submit evidence to the district court and 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 does not obtain early release through 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 eligibility 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 program gives Mr. Rainer opportunities for early release 

beyond the opportunities available under JCAP. 

Mr. Rainer downplays the significance of the opportunity for parole, 

pointing to its discretionary nature. We reject this contention. Though 

parole in Colorado is ordinarily 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 state was not required to release juvenile offenders; 

 

7

 The parties disagree on when Mr. Rainer 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 become eligible for parole at 75. See Part 

II, above. Mr. Rainer treats 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) the good-time credits that Mr. Rainer earned since 

the Court of Appeals’s issuance of an opinion or (2) the credits that he 

could earn in the future. The opportunity for these 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 only to guarantee a meaningful opportunity for release. 

560 U.S. at 74–75. A discretionary parole system can thus comply with

Graham. 

Mr. Rainer contends that the severity of the crime is the primary 

reason for denying parole. He bases this argument on a misreading of the 

parole board’s 2018 report. This report states that the most common reason 

for denying parole is “the severity of the crime of conviction or behaviors 

that represent risks to the public (for example, institutional violations and 

violence).” Colo. Div. of Crim. Justice, Analysis of Colorado State Board 

of Parole Decisions: FY 2017 Report at 8 (2018). From this evidence, one 

can’t tell whether an offender is being rejected because of the severity of 

the crime or a lack of rehabilitation.8

 

Mr. Rainer also perceives shortcomings 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 “central consideration.” Colo. Rev. Stat. 

§ 17-22.5-404(1)(a); 8 Colo. Code Regs. § 1511-1, 6.01(A). This focus on 

the risk of recidivism allows 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 prevents a meaningful 

opportunity to demonstrate maturity and rehabilitation.9

 Mr. Rainer instead points to the results in other cases, stating that the 

Colorado Court of Appeals found that 90% of parole 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 does not show whether any of the applicants were 

juveniles when they committed their crimes. The omission of this data is 

significant because under Colorado law, the parole board can consider 

juvenile status at the time of the offense as a mitigating factor supporting 

parole. People v. Davis, 429 P.3d 82, 95 (Colo. Ct. App. 2018). 

Similar omissions render the habeas record sparse on (1) the 

characteristics of the offenders who are denied parole the first time and 

(2) the reasons for the denial of first-time applications for parole. Given 

the sparsity of evidence 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 the 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 opportunities for early release through 

Colorado’s general parole program.10

Conclusion 

Under Graham v. Florida, the State of Colorado must provide Mr. 

Rainer with a meaningful opportunity for early release based on 

demonstrated maturity and rehabilitation. Mr. Rainer has not shown a 

failure by the State to provide this opportunity. Under JCAP, almost half 

of the inmates to apply have been accepted. If Mr. Rainer obtains 

acceptance into the program when he becomes eligible, he could obtain 

release by age 42. Even if he does not obtain release through JCAP, he 

could obtain release by age 60 through the general parole program. 

In combination, JCAP and the general parole program supply Mr. 

Rainer with a meaningful opportunity for early release based on 

demonstrated maturity and rehabilitation. 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 Colorado’s general parole program. We express no 

opinion on whether 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 this argument in his reply brief. See 

United States v. Mendoza, 468 F.3d 1256, 1260 (10th 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 consider an inadequately 

developed argument).