NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CEDRIC JOSEPH RUE, Jr., No. 17-17290
Petitioner-Appellant, D.C. No. 2:15-cv-02669-PGR
v.
MEMORANDUM*
JULI ROBERTS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted February 6, 2019
Submission Vacated March 19, 2019
Resubmitted August 12, 2022
Phoenix, Arizona
Before: HAWKINS, M. SMITH, and HURWITZ, Circuit Judges.
Cedric Rue was convicted in Arizona state court of various crimes, including
first-degree murder. Rue, who was sixteen at the time of the crimes, was sentenced
to life without the possibility of parole (“LWOP”) for the murder. Rue
unsuccessfully sought post-conviction relief in state court, arguing that his sentence
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
violated the Eighth Amendment prohibition against cruel and unusual punishment
because of his age when the murder was committed. Rue’s 28 U.S.C. § 2254 habeas
corpus petition was then denied by the district court, which granted a certificate of
appealability. We affirm.
1. Rue contends that his LWOP sentence was unconstitutional under the
Supreme Court’s decisions in Miller v. Alabama, 567 U.S. 460 (2012), and
Montgomery v. Louisiana, 577 U.S. 190 (2016), because his sentencing judge did
not determine that he was permanently incorrigible. But that argument is foreclosed
by Jones v. Mississippi, in which certiorari was granted for the express purpose of
explaining “how to interpret Miller and Montgomery.” 141 S. Ct. 1307, 1313 (2021).
Jones clarified that the Eighth Amendment categorically forbade mandatory
sentencing schemes and required “only that a sentencer follow a certain process—
considering an offender’s youth and attendant characteristics—before imposing”
LWOP. Id. at 1311 (quoting Miller, 567 U.S. at 483). The Court stressed that “a
separate factual finding of permanent incorrigibility is not required,” id. at 1318, nor
is an “on-the-record sentencing explanation with an implicit finding of permanent
incorrigibility,” id. at 1320. 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 that life-without-parole
sentences are imposed only in cases where that sentence is appropriate in light of the
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defendant’s age.” Id. at 1318; see also Jessup v. Shinn, 31 F.4th 1262, 1266 (9th
Cir. 2022) (“Miller requires, for a juvenile offender, an individualized sentencing
hearing during which the sentencing judge assesses whether the juvenile defendant
warrants a sentence of life with the possibility of parole.”).
2. Rue’s sentencing complied with the rule announced in Jones. Arizona law
at the time of the sentencing did not require that LWOP be imposed “automatically,
with no individualized sentencing considerations whatsoever.” Id. at 1267; see Ariz.
Rev. Stat. § 13-703(A) (2001). The sentencing judge explicitly considered Rue’s
age before imposing LWOP. Rue contends that he did not receive an individualized
hearing because the judge sentenced him and his co-defendant in a single hearing.
But despite the consolidated hearing, the sentencing judge made separate findings
as to each. As Jones held, the Eighth Amendment requires no more.
3. Rue also argues that his sentence was unconstitutional because the Arizona
legislature had in 1993 eliminated parole for crimes committed in 1994 or later, and
had replaced parole with a credit system for early release, see Jessup, 31 F.4th at
1266–67, and that statutory scheme was not amended until after the Supreme Court’s
decision in Miller to allow life sentences with the possibility of parole for juvenile
offenders convicted of first-degree murder, see State v. Randles, 334 P.3d 730, 732
(Ariz. Ct. App. 2014). However, in Jessup, we found that habeas relief was not
warranted in these circumstances because in imposing an LWOP sentence, the
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sentencing judge considered the defendant’s “age and other relevant considerations”
before concluding that no possibility of release was warranted. 31 F.4th at 1267.
We also noted that nothing “in the record suggests that the precise form of potential
release at issue had any effect on the sentencing judge’s exercise of discretion. Much
to the contrary, the record makes clear that the sentencing judge (and everyone else
involved) genuinely, if mistakenly, thought that he was considering a sentence of
life with the possibility of parole.” Id. The same is true here. 1
AFFIRMED.
1
Rue’s motion for judicial notice is granted.
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