Rainer v. Hansen

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS March 10, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

ATORRUS RAINER,

Petitioner - Appellant,
No. 18-1427
v. (D.C. No. 1:18-CV-00395-RPM)
(D. Colo.)
MATTHEW HANSEN, Warden, Sterling
Correctional Facility, et al.,

Respondents - Appellees.
_________________________________

ORDER
_________________________________

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.
_________________________________

This matter is before the court on Respondents’ Petition for Rehearing

(“Petition”). In the Petition, Respondents ask us to grant panel rehearing to clarify that

they did not concede that the Colorado Supreme Court’s decision in People v. Rainer,

394 P.3d 1141, 1144 (Colo. 2017) was contrary to the United States Supreme Court’s

decision in Graham v. Florida, 560 U.S. 48, 75 (2010). Upon careful consideration, we

direct as follows.

Pursuant to Fed. R. App. P. 40, the petition for panel rehearing is granted to the

extent of the modifications in the attached revised opinion. The court’s February 25, 2020
opinion is withdrawn and replaced by the attached revised opinion, which shall be filed

as of today’s date.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk

2
 FILED
United States Court of Appeals
PUBLISH Tenth Circuit

March 10, 2020
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
____________________________________

ATORRUS RAINER,

Petitioner - Appellant,

v. No. 18-1427

MATTHEW HANSEN, Warden,
Sterling Correctional Facility; and
PHIL WEISER, Attorney General of
the State of Colorado,

Respondents - Appellees.
_________________________________

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 Petitioner-
Appellant.

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.
________________________________
 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

2
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

3
  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 acknowledged that under our precedent, the Colorado Supreme

Court’s decision was contrary to Graham because we had held that Graham

covered lengthy prison terms as well as sentences designated as life

imprisonment without parole. 1 But the respondents argued that (1) Graham

did not apply because Mr. Rainer had been convicted of homicide offenses

1
While acknowledging our precedent, the respondents added that they
were preserving a challenge to the correctness of our precedent. The
respondents take the same position on appeal.
4
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

 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).

5
 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

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.

We conclude that 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).

6
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.

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

7
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

“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.

8
Id. (citations omitted) 2 (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

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). 3

2
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).
3
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).

9
 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 non-

homicide 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

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.

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 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. 4 When Mr. Rainer is 42, he will become eligible for

release through JCAP, the state’s specialized parole program for juvenile

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). 5 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.

4
All references to Mr. Rainer’s age are approximations because his
birth date does not appear in the record.
5
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).

11
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

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

12
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

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. 6 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. 7

6
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.
7
We base our assessment of JCAP on the current evidentiary record.
Subsequent data on the administration of JCAP could affect how we assess

13
 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. 8

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

its creation of opportunities for early release based on demonstrated
maturity and rehabilitation.
8
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.

14
Court observed that a state was not required to release juvenile offenders;

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. 9

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

9
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.

15
explained how the denial of these safeguards prevents a meaningful

opportunity to demonstrate maturity and rehabilitation. 10

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

10
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.

16
significance of Mr. Rainer’s opportunities for early release through

Colorado’s general parole program. 11

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.

11
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).
17