131 Nev., Advance Opinion 616
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 62931
Appellant,
vs.
ANDRE D. BOSTON,
F"
Respondent. 13
Appeal from a district court order granting a post-conviction
petition for a writ of habeas corpus. Eighth Judicial District Court, Clark
County; Elissa F. Cadish, Judge.
Vacated and remanded for further proceedings.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Jonathan VanBoskerck, Chief Deputy District Attorney,
and Parker P. Brooks, Deputy District Attorney, Clark County,
for Appellant.
Law Offices of Martin Hart, LLC, and Martin Hart, Las Vegas,
for Respondent.
BEFORE THE COURT EN BANC.
OPINION
By the Court, CHERRY, J.:
The Clark County District Court sentenced Andre Boston, a
juvenile at the time he committed his crimes, to serve 14 consecutive life
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terms with the possibility of parole, plus a consecutive term of 92 years in
prison. Boston subsequently filed a post-conviction petition for a writ of
habeas corpus. The district court granted the petition based on Graham v.
Florida, 560 U.S. 48 (2010), wherein the United States Supreme Court
concluded that a sentence of life without the possibility of parole for a
nonhomicide offense committed when the defendant was a juvenile
constitutes cruel and unusual punishment. In this case, we consider
whether the holding in Graham applies when an aggregate sentence
imposed against a juvenile defender convicted of more than one
nonhomicide offense is the equivalent of a life-without-parole sentence.
We hold that it does. We further conclude that the decision in Graham
provides good cause and actual prejudice for Boston's untimely and
successive petition. Additionally, we conclude A.B. 267 remedies Boston's
unconstitutional sentence.
FACTS AND PROCEDURAL HISTORY
In 1983, 16-year-old Andre Boston committed a number of
horrific crimes against a 12-year-old victim, a 15-year-old victim, and their
stepmother. Boston was convicted, pursuant to a jury verdict, of firstdegree kidnapping with the use of a deadly weapon, six counts of sexual
assault with the use of a deadly weapon, robbery with the use of a deadly
weapon, and attempted dissuading a victim/witness from reporting a
crime with the use of a deadly weapon for the crimes committed against
the 15-year-old victim. He was also convicted of burglary, lewdness with a
minor with the use of a deadly weapon, assault with the use of a deadly
weapon, and battery with the use of a deadly weapon, for the acts
committed against the 12-year-old victim and her stepmother. The
district court sentenced Boston to 14 life sentences with the possibility of
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parole, plus a consecutive 92 years in prison. Thus, Boston will have to
serve approximately 100 years in prison before he is eligible for parole.
Boston appealed from his judgment of conviction, and this
court dismissed the appeal. Boston v. State, Docket No. 19607 (Order
Dismissing Appeal, October 24, 1989). The remittitur issued on November
14, 1989.
In 1990, Boston filed a petition for post-conviction relief
pursuant to NRS 177.315. The district court denied the petition without
an evidentiary hearing, and this court remanded for an evidentiary
hearing. Boston v. State, Docket No. 21871 (Order of Remand, September
30, 1991). After holding an evidentiary hearing, the district court again
denied Boston's petition. Boston untimely appealed the district court's
denial, which this court dismissed for lack of jurisdiction. Boston v. State,
Docket No. 26034 (Order Dismissing Appeal, October 7, 1994).
In 2011, Boston filed a pro se post-conviction petition for a
writ of habeas corpus in the district court. Boston claimed that his
sentence constituted cruel and unusual punishment pursuant to Graham
v. Florida, 560 U.S. 48 (2010). The district court denied the petition
without considering Boston's good cause argument, and Boston appealed.
This court affirmed in part, reversed in part, and remanded the case to the
district court to consider whether Graham prohibits aggregate sentences
that are the functional equivalent of life without the possibility of parole
and whether Graham provided good cause to excuse the procedural
defects. Boston v. State, Docket No. 58216 (Order Affirming in Part,
Reversing in Part and Remanding, February 3, 2012). Following an
evidentiary hearing, the district court determined that Graham prohibited
aggregate sentences that were the functional equivalent of life without the
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possibility of parole and that Graham also provided good cause and
prejudice to overcome the procedural bar. Accordingly, the district court
granted Boston's petition and ordered a new sentencing hearing. The
State appeals from the order granting the petition.
While Boston's instant appeal was pending before us, the
Nevada Legislature passed Assembly Bill No. 267. A.B. 267, 78th Leg.
(Nev. 2015). A.B. 267 amended NRS 176.025 and NRS Chapter 213, and
took effect on October 1, 2015. Id. As of October 1 of this year, NRS
176.025 prohibits sentences of life imprisonment without the possibility of
parole if the offender was a juvenile at the time he or she committed the
crime. Id. A.B. 267 also adds a new subsection to NRS Chapter 213,
which makes prisoners eligible for parole after 15 years if their sentences
were for nonhomicide crimes committed while they were juveniles. Id.
Based on the new law, we issued an Order Directing
Supplemental Briefing and Inviting Amicus Briefing. Boston v. State,
Docket No. 62931 (Order Directing Supplemental Briefing and Inviting
Amicus Briefing, June 19, 2015). In accordance with our order, the State,
Boston, and amici filed supplemental briefs.
DISCUSSION
Procedural bars
Boston filed his petition on January 5, 2011—more than 21
years after this court issued the remittitur from his direct appeal. Thus,
Boston's petition was untimely. See NRS 34.726(1). Boston's petition was
also untimely because he filed it nearly 17 years after the effective date of
NRS 34.726. See 1991 Nev. Stat., ch. 44, §§ 5, 33, at 75-76, 92; Pellegrini
v. State, 117 Nev. 860, 874-75,
34 P.3d 519, 529 (2001). Furthermore,
Boston's petition was successive, as he previously filed a post-conviction
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petition for a writ of habeas corpus. See NRS 34.810(1)(b)(2). Accordingly,
Boston's petition is procedurally barred absent a demonstration of good
cause and actual prejudice. See NRS 34.726(1); NRS 34.810(1)(b); NRS
34.810(3).
Boston asserts that the U.S. Supreme Court's decision in
Graham v. Florida, 560 U.S. 48 (2010), constitutes good cause to overcome
the procedural bars. We have recognized that good cause may be
established where the "legal basis for the claim was not reasonably
available" for a prior, timely petition. Bejarano v. State, 122 Nev. 1066,
1072,
146 P.3d 265, 270 (2006). The Supreme Court did not decide
Graham until 2010, and Boston filed his petition within one year of the
Court's decision. Therefore, Boston has demonstrated good cause for the
late filing if Graham applies to aggregate sentences that are the functional
equivalent of life without the possibility of parole.' To demonstrate actual
prejudice,X-Gfe4dajmust show error that worked to his actual and
substantial disadvantage. See Hogan v. Warden, 109 Nev. 952, 960,
860
P.2d 710, 716 (1993).
"We also recognize that the decision in Graham would only apply in
this case if Graham applied retroactively. See Teague v. Lane, 489 U.S.
288, 310 (1989) ("Unless they fall within an exception to the general rule,
new constitutional rules of criminal procedure will not be applicable to
those cases which have become final before the new rules are
announced."). Using our well-established retroactivity analysis, we
conclude that Graham applies retroactively because it is a new rule that
falls within one of the exceptions to the general rule of nonretroactivity
because the decision in Graham prohibits a specific punishment for a class
of persons. See Colwell v. State, 118 Nev. 807, 817,
59 P.3d 463, 470
(2002); see also Moore v. Biter, 725 F.3d 1184, 1190-91 (9th Cir. 2013)
(concluding that Graham established a new rule that was retroactive on
collateral review).
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Graham v. Florida
Boston argues that Graham prohibits aggregate sentences
that constitute life without the possibility of parole for a nonhomicide
offense committed by a juvenile. We agree.
In Graham, Graham, at the age of 16, pleaded guilty to armed
burglary with assault or battery and attempted armed robbery. 560 U.S.
at 53-54. The Florida court initially placed Graham on probation. Id. at
54. Within six months, Graham was arrested for committing additional
robberies and other infractions, in violation of his probation. Id. at 54-55.
After revoking probation, the court sentenced Graham to life in prison for
the armed burglary conviction and 15 years for the attempted robbery
conviction. Id. at 57. Because Florida abolished its parole system, the
sentence required that Graham spend the rest of his life in prison unless
he received a grant of executive clemency. Id.
On review, the U.S. Supreme Court considered whether a
juvenile offender could receive a sentence of life without the possibility of
parole for a nonhomicide offense. Id. at 52-53. The Court held that such a
sentence violated the Eighth Amendment's prohibition against cruel and
unusual punishment. Id. at 74. In reaching its decision, the Court
surveyed every state that allowed a juvenile to be sentenced to life without
the possibility of parole and noted that there were only 123 juvenile
nonhomicide offenders serving life without the possibility of parole in this
country; the Court reported five in Nevada. Id. at 62-64. This information
led the Court to believe that there is a national consensus against
sentencing juvenile nonhomicide offenders to life without the possibility of
parole. Id. at 67.
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The Supreme Court reasoned that "[j] uveniles are more
capable of change than are adults, and their actions are less likely to be
evidence of 'irretrievably depraved character' than are the actions of
adults." Id. at 68 (quoting Roper v. Simmons, 543 U.S. 551, 570 (2005)).
Moreover, juveniles who receive a sentence of life without the possibility of
parole will spend a greater percentage of their lives in prison than adults
serving the same sentence. Id. at 70. Consequently, the Court concluded
that "none of the goals of penal sanctions that have been recognized as
legitimate—retribution, deterrence, incapacitation, and rehabilitation—
provides an adequate justification" for imposing such a sentence against a
nonhomicide juvenile offender. Id. at 71 (internal citation omitted). The
Court's rule "prohibit[s] States from making the judgment at the outset
that those offenders never will be fit to reenter society." Id. at 75. The
Court also concluded that "[a] State is not required to guarantee eventual
freedom to a juvenile offender[,]" but the State must give "some
meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation." Id.
Applying Graham to aggregate sentences
Since the Supreme Court's decision, courts have inconsistently
decided whether the Graham holding prohibits sentences that, when
aggregated, constitute the functional equivalent of life without the
possibility of parole. Several jurisdictions have concluded that Graham
prohibits sentences that constitute the functional equivalent of life
without the possibility of parole. See, e.g., Moore, 725 F.3d at 1191, 1193-
94 (explaining that Graham focused on sentences that, "regardless of the
underlying nonhomicide crime," "mean[ ] that a juvenile is incapable of
returning to society," and holding that an aggregate 254-year sentence
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was the functional equivalent of life without the possibility of parole);
People v. Caballero, 282 P.3d 291, 295 (Cal. 2012) (holding that a 110-
year-to-life sentence was the functional equivalent of a sentence of life
without the possibility of parole); Floyd v. State, 87 So. 3d 45, 45 (Fla.
Dist. Ct. App. 2012) (holding that an 80-year sentence was the functional
equivalent of life without the possibility of parole and unconstitutional).
These courts concluded that to allow the functional equivalent of a
sentence of life without the possibility of parole for juvenile nonhomicide
offenders would frustrate the Supreme Court's reasoning regarding a
juvenile's opportunity to demonstrate growth and maturity. Caballero,
282 P.3d at 295; Moore,
725 F.3d at 1192-93. The juvenile would not have
a realistic opportunity for release from prison because the opportunity to
receive parole would not arise during the juyenile's natural life
expectancy. Caballero, 282 P.3d at 295; Moore, 725R.3d at 1194.
In contrast, other courts have concluded that aggregate
sentences that constitute the functional equivalent of life without the
possibility of parole do not violate the Graham rule. Seeeg., Bunch v.
Smith, 685 F.3d 546, 550 (6th Cir. 2012), cert. denied sub nom. Bunch v.
Bobby, 133 S. Ct. 1996 (2013); State v. Kasic,
265 P.3d 410, 414-15 (Ariz.
Ct. App. 2011). These courts (Le., the Bunch and Kasic courts) focus on a
passage in Graham, which states that "Mlle instant case concerns only
those juvenile offenders sentenced to life without parole solely for a
nonhomicide offense." 560 U.S. at 63; see also Bunch, 685 F.3d at 551;
Kasic, 265 P.3d at 414. These courts further note that in determining that
a national consensus existed, the Supreme Court relied on data regarding
juveniles who were specifically sentenced to life in prison without the
possibility of parole. Bunch, 685 F.3d at 551-52. The Bunch court
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determined that because the Supreme Court did not consider the number
of juveniles who received the functional equivalent of life without the
possibility of parole, these cases do not fall within the categorical ban
enunciated in Graham. Bunch, 685 F.3d at 552.
The most significant concern for a non-functional-equivalent
court is that Graham provides no direction on how to determine when
aggregate sentences are the functional equivalent of a sentence of life
without the possibility of parole. Instead of applying Graham to an
aggregate sentence, one court observed that the proper focus was "on the
sentence imposed for each specific crime, not the cumulative sentence."
Kasic, 265 P.3d at 415 (quoting United States v. Aiello,
864 F.2d 257, 265
(2d Cir. 1988)). Under this reasoning, if each individual sentence offers
the juvenile nonhomicide offender the opportunity , for parole, the
aggregate sentence is acceptable according to Graham.
In the instant case, the State advocates for the non-functional-equivalent approach, arguing that the Supreme Court's holding in
Graham applies solely to a single sentence for a nonhomicide offense. The
State asserts that for Graham to apply, three factors must be present: (1)
the offender must have been a juvenile when he or she committed the
offense; (2) the sentence imposed must be for a single, nonhomicide
offense; and (3) the district court must have sentenced the defendant to
life without the possibility of parole. We disagree and are persuaded that
the Graham rule applies to aggregate sentences that are the functional
equivalent of a sentence of life without the possibility of parole.
Nowhere in the Graham decision does the Supreme Court
specifically limit its holding to offenders who were convicted for a single
nonhomicide offense, and the State does not cite to any language in the
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case to support its claim that the Graham decision does. Consequently,
the State's argument does not comport with Graham: Graham did not
receive the specific sentence of life without parole; he received the
sentence of life in a jurisdiction that abolished its parole system. Graham,
560 U.S. at 57. Therefore, just like Boston, Graham received the
functional equivalent of life without parole. See id.
This court recognizes that the Florida court sentenced
Graham to life under a sentencing scheme in which parole is not provided
for one offense, id., however, we conclude that if we were to read the
Supreme Court's holding as the State argues we should, we would
undermine the Court's goal of "prohibit[ing] States from making the
judgment at the outset that those offenders never will be fit to reenter
society." Id. at 75. As this court has previously stated, a sentence of life
without the possibility of parole for a juvenile offender "means denial of
hope; it means that good behavior and character improvement are
immaterial; it means that whatever the future might hold in store for the
mind and spirit of [the convict], he will remain in prison for the rest of his
days." Naovarath v. State, 105 Nev. 525, 526,
779 P.2d 944, 944 (1989);
see Graham, 560 U.S. at 70 (quoting Naovarath, 105 Nev. at 526,
779 P.2d
at 944); see also Moore v. Biter,
725 F.3d 1184, 1191 (9th Cir. 2013) ("Life
in prison without the possibility of parole gives [a juvenile] no chance for
fulfillment outside prison walls, no chance for reconciliation with society,
no hope." (quoting Graham, 560 U.S. at )). The functional-equivalent
approach best addresses the concerns enunciated by the U.S. Supreme
Court and this court regarding the culpability of juvenile offenders and the
potential for growth and maturity of these offenders.
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Nothing in our opinion today requires the State to ensure that
nonhomicide juvenile offenders are given "eventual freedom." See
Graham, 560 U.S. at 75. But juvenile offenders must have a "meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation." See id. We therefore hold that a district court violates the
prohibition of cruel and unusual punishment when it sentences a
nonhomicide juvenile offender to the functional equivalent of life without
the possibility of parole. Because the decision in Graham applies to
juvenile offenders with aggregate sentences that are the functional
equivalent of life without the possibility of parole, we conclude that Boston
demonstrates good cause and actual prejudice to overcome the procedural
bars, and his ground for relief has merit.
We recognize that our holding today raises complex and
difficult issues, not the least of which is when will aggregate sentences be
determined to be the functional equivalent of a sentence of life without the
possibility of parole. We need not answer this question today for two
reasons. First, Boston's aggregate sentences, which require him to serve
approximately 100 years before being eligible for parole, are without a
doubt the functional equivalent of a sentence of life without the possibility
of parole. Second, we need not answer this question because the
Legislature has made Boston parole-eligible.
Assembly Bill No. 267
In 2015, the Legislature addressed the concerns of juvenile
sentencing raised in Graham in a significant way in A.B. 267. A.B. 267
prohibits the district courts from sentencing nonhomicide juvenile
offenders to life without parole and addresses the parole eligibility of
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nonhomicide juvenile„ offenders. 2 A.B. 267, 78th Leg. (Nev. 2015).
Amendments to NRS076/0171 direct trial courts to "consider the
differences between juvenile and adult offenders, including, without
limitation, the diminished culpability of juveniles . . . and the typical
characteristics of youth."/A713. 267 also amended NRS 176.025 to preclude
A
the district courts from sentencing nonhomicide juvenile offenders to life
without parole:
A sentence of death or life imprisonment
without the possibility of parole must not be
imposed or inflicted upon any person convicted of
a crime now punishable by death or life
imprisonment without the possibility of
parole who at the time of the commission of the
crime was less than 18 years of age. As to such a
person, the maximum punishment that may be
imposed is life imprisonment. . . with the
possibility of parole.
A.B. 267 § 2, 78th Leg. (Nev. 2015) (emphasis in original to indicate
amendments to statute).
The Legislature further added a new section to NRS Chapter
213, which allows for parole eligibility, after serving 15 years of
incarceration, for those who committed nonhomicide crimes as juveniles:
1. Notwithstanding any other provision
of law, except as otherwise provided in
subsection 2 or unless a prisoner is subject to
earlier eligibility for parole pursuant to any
other provision of law, a prisoner who was
sentenced as an adult for an offense that was
2 If the juvenile's offense results in the death of one victim, the
juvenile offender, regardless of the district court's sentence, will be eligible
for parole after serving 20 years of imprisonment. A.B. 267; /NRS-4-7-670-1-7-0 -*
NRS 213.1235.
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committed when he or she was less than 18
years of age is eligible for parole as follows:
(a) For a prisoner who is serving a
period of incarceration for having been
convicted of an offense or offenses that did
not result in the death of a victim, after the
prisoner has served 15 calendar years of
incarceration, including any time served in a
county jail.
Id. § 3(1) (emphasis in original to indicate amendments to statute); NRS
213.12135. Regardless of the minimum prison sentence that the trial
court sets for eligibility, the juvenile offender will be parole-eligible after
serving a minimum sentence of 15 years. 3 Id. § 3(1). These amendatory
provisions apply retroactively. Id. § 5.
The State argues that aggregate sentences that constitute the
functional equivalent of life without the possibility of parole are -ust7
included with the amendments set forth in A.B. 267. We Ailagree.
Although the record does not reflect whether Boston has ever elected to
aggregate his sentences pursuant to NRS 213.1212, the statutory
provision recently enacted through A.B. 267 does just that.
The new statutory provision to be set forth in NRS Chapter
213 gives a juvenile offender parole eligibility after 15 years of
incarceration "for having been convicted of an offense or offenses that did
not result in the death of a victim." Id. (emphasis added). The plural form
of "offense" demonstrates the Legislature's intent to allow parole eligibility
after 15 years when a juvenile defendant is convicted of more than one
3 A.B. 267 does not guarantee that nonhomicide juvenile offenders
will be released on parole after serving 15 years of imprisonment. A.B.
267 solely makes these offenders eligible for parole after serving 15 years.
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nonhomicide offense and the sentences therefore aggregate. Thus, we
conclude that the legislative changes set forth in A.B. 267 apply to
aggregate sentences and a nonhomicide juvenile offender is eligible for
parole after serving 15 calendar years of incarceration on his or her
aggregate sentences.
The district court originally sentenced Boston on October 20,
1988, meaning that he has been incarcerated for at least 27 years and is
therefore eligible for parole under A.B. 267. The Legislature has provided
all that Graham requires—a meaningful opportunity for Boston to obtain
release within his lifetime. Accordingly, although we agree with the
district court's reasoning—that Graham precludes aggregate sentences
that constitute the functional equivalent of life without the possibility of
parole against nonhomicide juvenile offenders—we nonetheless vacate its
order and remand this case to the district court to deny Boston's petition
because the judiciary cannot provide him with a better solution than that
which the Legislature has already provided.
We concur:
, C.J.
Hardesty Parraguirre
ucq I , J.
Dou S ittà
Gibbons
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