FILED

United States Court of Appeals

Tenth Circuit

March 21, 2017

PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KEIGHTON BUDDER,

Petitioner - Appellant,
v. No. 16-6088
MIKE ADDISON, Warden,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:13-CV-00180-HE)

Bryan A. Stevenson, Equal Justice Initiative, Montgomery, Alabama (Jennae R.

Swiergula and James M. Hubbard, Equal Justice Initiative, Montgomery, Alabama; Perry
W. Hudson, Hudson Law Office, Oklahoma City, Oklahoma, with him on the briefs), for
Petitioner-Appellant.

Mithun Mansinghani, Deputy Solicitor General (E. Scott Pruitt, Attorney General of
Oklahoma; Diane L. Slayton, Assistant Attorney General, with him on the briefs),
Oklahoma City, Oklahoma, for Respondent-Appellee.

Before BRISCOE, MATHESON, and PHILLIPS, Circuit Judges.

BRISCOE, Circuit Judge.

Keighton Budder was convicted by an Oklahoma jury of several violent

nonhomicide crimes committed when he was sixteen years old. After sentence
modification on direct appeal, he received three life sentences and an additional sentence

of twenty years, all to run consecutively. He will not be eligible for parole under

Oklahoma law until he has served 131.75 years in prison. Budder filed a petition for writ

of habeas corpus, pursuant to 28 U.S.C. 2254, contending, as he did on direct appeal,

that his sentence violates the Eighth Amendment. In support, he cites Graham v. Florida,

560 U.S. 48 (2010), which held that sentencing juvenile offenders who have not

committed homicide crimes to life in prison without a meaningful opportunity for release

is unconstitutional. The district court denied Budders petition, and he appeals. We

reverse and remand with instructions to grant Budders petition.

In the early morning hours of August 11, 2009, when he was sixteen years old,

Budder stabbed a seventeen-year-old girl approximately seventeen times and raped her

multiple times. On April 1, 2010, an Oklahoma state jury convicted Budder of two

counts of first degree rape, one count of assault and battery with a deadly weapon, and

one count of forcible oral sodomy. The jury recommended punishment of life without

parole for each of the rape charges, life with parole for the assault charge, and twenty

years imprisonment for the forcible sodomy charge. On May 4, 2010, the state trial court

sentenced accordingly and ordered the sentences to run consecutively.

Less than two weeks later, the Supreme Court decided Graham, which held that

the Eighth Amendment prohibits a state from imposing a life without parole sentence on

a juvenile nonhomicide offender. Id. at 75. Budder filed a direct appeal with the

2
Oklahoma Court of Criminal Appeals (OCCA) and argued that, under Graham, his

sentence was unconstitutional and must be modified. On October 24, 2011, the OCCA

modified Budders two life without parole sentences to life with the possibility of parole,

but again ordered all of his sentences (three life sentences and a twenty-year sentence) to

run consecutively. Aplt. App. at 23839.

Under Oklahoma law, a prisoner must serve 85% of his sentence before he will be

eligible for parole. See Okla. Stat. tit. 21, 13.1. For purposes of parole, a life sentence

is calculated as 45 years. Anderson v. State, 2006 OK CR 6, 24, 130 P.3d 273, 282283

(Okla. 2006). Thus, Budders sentences are considered to total 155 years, and he must

serve 131.75 years before he will be eligible for parole.

Budder requested rehearing before the OCCA, again relying on Graham, and asked

that his sentences be modified to run concurrently rather than consecutively in order to

provide him with a potential of parole in his lifetime. The OCCA denied this petition on

November 29, 2011. Aplt. App. at 24647.

Budder timely filed his petition for habeas relief in federal district court on

February 20, 2013. See 28 U.S.C. 2244(d)(1)(A); Lawrence v. Florida, 549 U.S. 327,

333 (2007). The magistrate judge issued a Report and Recommendation concluding that

Graham controlled and Budder should be resentenced. The district court declined to

adopt that recommendation and denied Budders petition, but granted a certificate of

appealability.

3
 II

As a habeas court tasked with review of the OCCAs ruling, our review is

circumscribed by 2254(d) of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). See 28 U.S.C. 2254(d); Harrington v. Richter, 562 U.S. 86, 92 (2011).

AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims

have been adjudicated in state court. Burt v. Titlow, __ U.S. __, 134 S. Ct. 10, 16

(2013). We may reverse the state courts judgment only if the courts decision was

contrary to, or involved an unreasonable application of, clearly established Federal law

or was based on an unreasonable determination of the facts in light of the evidence

presented.1 28 U.S.C. 2254(d). This high burden is placed on state habeas petitioners

because habeas corpus is a guard against extreme malfunctions in the state criminal

justice systems, not a substitute for ordinary error correction through appeal.

Harrington, 562 U.S. at 10203 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5

(1979) (Stevens, J., concurring in judgment)). The Court has also cautioned, however,

1
AEDPA 2254(d) provides in full:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. 2254(d).

4
that [e]ven in the context of federal habeas, deference does not imply abandonment or

abdication of judicial review, and does not by definition preclude relief. Brumfield v.

Cain, __ U.S. __, 135 S. Ct. 2269, 2277 (2015) (quoting Miller-El v. Cockrell, 537 U.S.

322, 340 (2003)).

Each of AEDPAs three prongs contrary to clearly established federal law,

unreasonable application of clearly established federal law, and unreasonable

determination of the facts presents an independent inquiry. 28 U.S.C. 2254(d); see

also Williams v. Taylor, 529 U.S. 362, 40405 (2000) (holding that the contrary to and

unreasonable application clauses have independent meaning). Budder argues that the

OCCAs decision regarding his sentence is contrary to clearly established federal law,

citing that portion of 2254(d)(1),2 so we focus on this prong of AEDPA.

2
Budder also argues that the OCCAs decision was an unreasonable application of
clearly established federal law. A state court decision involves an unreasonable
application of clearly established Supreme Court precedent when it unreasonably applies
the law to the facts of a particular prisoners case. Williams, 529 U.S. at 409; Holland v.
Allbaugh, 824 F.3d 1222, 122728 (10th Cir. 2016). Thus, the unreasonable application
of prong of 2254(d)(1) is a better fit for cases involving application of general legal
principles to fact-specific inquiries. See, e.g., Carey v. Musladin, 549 U.S. 70, 77 (2006)
(noting that lower courts have diverged widely in their treatment of defendants
spectator-conduct claims and concluding that [g]iven the lack of holdings from this
Court regarding the potentially prejudicial effect of spectators courtroom conduct of the
kind involved here, it cannot be said that the state court unreasonabl[y] appli[ed] clearly
established Federal law (quoting 28 U.S.C. 2254(d)(1))).
By contrast, a state court decision can be contrary to Supreme Court precedent
only if a prior case[] confront[s] the specific question presented. Woods v. Donald,
__ U.S. __, 135 S. Ct. 1372, 1377 (2015) (quoting Lopez v. Smith, __ U.S. __, 135 S. Ct.
1, 4 (2014)). A categorical holding answers the specific question presented for all cases
within the category, so a state court decision that fails to follow a categorical rule is
contrary to established law, not an unreasonable application of it. The other circuit
(continued...)

5
 Review under 2254(d)(1) is a two-step process. See Yarborough v. Alvarado,

541 U.S. 652, 66063 (2004). The first step is to determine the relevant clearly

established law. Id. at 660 (We begin by determining the relevant clearly established

law.). As used in the context of AEDPA, [c]learly established Federal law means only

Supreme Court holdings, not the Courts dicta. Id. Federal courts must look for the

governing legal principle or principles set forth by the Supreme Court at the time the state

court renders its decision. Id. at 661 (quoting Lockyer v. Andrade, 538 U.S. 62, 71, 72

(2003)). Thus, at this stage of the inquiry, we look only to Supreme Court decisions that

existed at the time the state court rendered its decision, not at later opinions or opinions

from lower courts.

After the relevant clearly established law has been determined, the second step is

to examine the state courts judgment to determine whether it was either contrary to, or

involved an unreasonable application of that clearly established law. 28 U.S.C.

2254(d)(1); see also Carey v. Musladin, 549 U.S. 70, 7477 (2006) (outlining the

relevant Supreme Court precedent in Part II.A. and then considering the state courts

application of that precedent in Part II.B.); Yarborough, 541 U.S. at 663 (We turn now to

the case before us and ask if the state-court adjudication of the claim involved an

(...continued)
courts to address the meaning of Graham to cases on habeas review have also considered
the question under the contrary to prong of AEDPA. See Moore v. Biter, 725 F.3d
1184 (9th Cir. 2013) ([T]he state courts decision was contrary to the clearly established
Federal law set forth in Graham.); Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012)
([W]e cannot say that Bunchs sentence was contrary to clearly established federal
law.).

6
unreasonable application of clearly established law . . . .); Williams, 529 U.S. at 39098

(discussing, in Part III, the precedent set in Strickland v. Washington, 466 U.S. 668

(1984), and then, in Part IV, concluding that the state courts decision was both contrary

to and involved an unreasonable application of that precedent). A state court decision is

contrary to clearly established federal law if the state court applies a rule that

contradicts the governing law set forth in Supreme Court cases or if the state court

confronts a set of facts that are materially indistinguishable from a Supreme Court case

and nevertheless arrives at a result different from [that] precedent. Williams, 529 U.S.

at 405; Holland v. Allbaugh, 824 F.3d 1222, 1227 (10th Cir. 2016). We must decide in

the first instance what governing law has been set forth. Only after we have done so may

we determine whether a state courts decision conflicts with that governing law. If we

conclude at this second step that, in light of the clearly established federal law, the state

courts judgment was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement,

then we may grant the petitioners request for habeas relief. See Harrington, 562 U.S. at

103.

III

First, we must determine what law was clearly established at the time of the

OCCAs decision. Specifically, we must look for the governing legal principle set forth

in Graham. At the age of sixteen, Terrance Jamar Graham was charged as an adult for

armed burglary with assault or battery, which is a first-degree felony under Florida law

7
and carries a maximum penalty of life imprisonment. Graham, 560 U.S. at 53. He was

also charged with attempted armed robbery, which is a second-degree felony under

Florida law and carries a maximum penalty of fifteen years imprisonment. Id. at 5354.

Graham pleaded guilty to both charges. Id. at 54. The state trial court withheld

adjudication of guilt and sentenced Graham to concurrent three-year terms of probation,

including twelve months in the county jail. Id. Graham was released in June 2004. Id.

Less than six months later, he was arrested for a series of crimes: participating in two

home invasion robberies during which an accomplice was shot; leading police on a high

speed chase while evading arrest; and possessing three handguns. Id. at 5455. When

questioned, Graham admitted to participation in an additional two to three robberies.

Id. at 55. At the time of this arrest, Graham was thirty-four days shy of his eighteenth

birthday. Id. As a result of violating the terms of his probation, Graham was found guilty

on the original two charges and sentenced to the maximum term allowed on each life

imprisonment for armed burglary, and fifteen years for attempted armed robbery. Id. at

57. At the time, the state of Florida had no mechanism for parole. Id.

Graham appealed his sentence and raised what the Court described as a

categorical challenge to a term-of-years sentence. Id. at 61. Thus, the Court did not

apply a proportionality analysis3 to the circumstances of Grahams particular case.

3
The concept of proportionality is central to the Eighth Amendment. Embodied
in the Constitutions ban on cruel and unusual punishments is the precept of justice that
punishment for crime should be graduated and proportioned to [the] offense. Graham,
560 U.S. at 59 (alteration in original) (quoting Weems v. United States, 217 U.S. 349, 367
(continued...)

8
Instead, the Court addressed whether life without parole sentences were categorically

disproportionate and thus invalid under the Eighth Amendment when applied to juvenile

nonhomicide offenders. See id. (This case implicates a particular type of sentence as it

applies to an entire class of offenders who have committed a range of crimes. (emphasis

added)); id. ([T]he appropriate analysis is the one used in cases that involved the

categorical approach.). The Court then announced a categorical rule:

The Constitution prohibits the imposition of a life without parole

sentence on a juvenile offender who did not commit homicide. A state need
not guarantee the offender eventual release, but if it imposes a sentence of
life it must provide him or her with some realistic opportunity to obtain
release before the end of that term.

Id. at 82; see also id. at 75 (explaining the necessity of a categorical rule). Thus, the

Courts holding applies, not just to the factual circumstances of Grahams case, but to all

juvenile offenders who did not commit homicide, and it prohibits, not just the exact

sentence Graham received, but all sentences that would deny such offenders a realistic

(...continued)
(1910)). The Eighth Amendment does not require strict proportionality between crime
and sentence but rather forbids only extreme sentences that are grossly
disproportionate to the crime. Id. at 5960 (quoting Harmelin v. Michigan, 501 U.S.
957, 997, 100001 (1991) (Kennedy, J., concurring in part and concurring in judgment.)).
Prior to Graham, challenges to term-of-years sentences (meaning non-death
penalty sentences) were reviewed according to the proportionality analysis, and
categorical analysis was reserved for cases involving the death penalty. Id. at 6061.
Thus, Graham presented a new issue for the Court under its Eighth Amendment
jurisprudence. Id. at 61 (The present case involves an issue the Court has not considered
previously: a categorical challenge to a term-of-years sentence.).

9
opportunity to obtain release.4

Although we reach this conclusion, as we must, by looking only to the Supreme

Courts language in Graham, we cannot help but point out that the concurring and

dissenting opinions in Graham, as well as the Courts subsequent decisions in Miller v.

Alabama, __ U.S. __, 132 S. Ct. 2455 (2012), and Montgomery v. Louisiana, __ U.S. __,

136 S. Ct. 718 (2016), support what is obvious from the text of the majoritys opinion in

Graham the Court in Graham announced a categorical rule, not a fact-specific holding.

4
We recognize that the circuit courts do not agree as to what the Court held in
Graham. Compare Moore v. Biter, 725 F.3d 1184, 1186 (9th Cir. 2013) (holding that, in
Graham, the United States Supreme Court clearly established that the Eighth
Amendment prohibits the punishment of life without parole for juvenile nonhomicide
offenders (emphasis added)), with Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012)
(holding that Graham did not clearly establish that consecutive, fixed-term sentences for
juveniles who commit multiple nonhomicide offenses are unconstitutional when they
amount to the practical equivalent of life without parole).
First, we must note that both of these cases involved lengthy fixed-term sentences
imposed by state courts. See Moore, 725 F.3d at 1187 (sentence of 254 years); Bunch,
685 F.3d at 547 (sentence of 89 years). Budder, on the other hand, was not sentenced to a
lengthy fixed-term, he was sentenced to life, just as was the defendant in Graham.
Thus, these cases regarding lengthy fixed-term sentences addressed an alleged factual
distinction that is not relevant in Budders case. We conclude that Graham addressed any
sentence that would deny a juvenile nonhomicide offender a realistic opportunity to
obtain release, regardless of the label a state places on that sentence. But, even if a
material distinction could be drawn between lengthy fixed-terms and life, that
distinction would not apply here.
Second, we note that, given the two-step framework for habeas review, we owe no
deference to other courts decisions regarding what law the Supreme Court clearly
established in Graham. We look to our sister circuits decisions only for their persuasive
value. In other words, AEDPA requires that the law be clearly established by the
Supreme Court. It must be the Courts holding, not dicta. It must be on point, not a
general principle to be extended from another context. But it need not be the case that no
other court has ever misinterpreted or failed to follow that clearly established law in order
for it to remain clearly established law.

10
 Chief Justice Roberts wrote separately in Graham because, although he agreed

with the majority that Grahams sentence of life without parole violate[d] the Eighth

Amendment, he reached that conclusion by [a]pplying the narrow proportionality

framework to the particular facts of th[at] case. Graham, 560 U.S. at 91 (Roberts, C.J.,

concurring in the judgment). Unlike the majority, Chief Justice Roberts s[aw] no need

to invent a new constitutional rule. Id. He wrote that the majority err[ed] in using

[Grahams] case as a vehicle for unsettling [the Courts] established jurisprudence and

fashioning a categorical rule applicable to far different cases. Id. at 96 (emphasis

added). Thus, it is clear that Chief Justice Roberts recognized the majority opinion as a

categorical holding that reached beyond the facts of Grahams individual circumstances.

Similarly, Justice Alito joined Justice Thomass dissenting opinion but also wrote

separately to emphasize that Graham did not raise an as-applied claim in his petition for

certiorari or in his merits briefs before [the Supreme] Court. Instead, [Graham] argued

for only a categorical rule banning the imposition of life without parole on any juvenile

convicted of a nonhomicide offense. Id. at 12425 (Alito, J., dissenting) (emphasis in

original). By this statement, the dissent highlights the question answered by the Graham

majority: Does the Eighth Amendment categorically bar life without parole sentences for

all juvenile offenders who did not commit homicide? According to the Court, it does.

Further, the Court in both Miller and Montgomery characterized the holding in

Graham as categorical. Montgomery, 136 S. Ct. at 732 (stating that Graham fell within

the line of Supreme Court precedent holding certain punishments disproportionate when

11
applied to juveniles and that Graham held that the Eighth Amendment bars life without

parole for juvenile nonhomicide offenders); id. at 734 (Scalia, J., dissenting) (referring to

Graham as an example of a categorical holding); id. (stating that Graham bar[red] a

punishment for all juvenile offenders); Miller, 132 S. Ct. at 246364 (listing Graham as

belonging to a set of cases that have adopted categorical bans on sentencing practices

based on mismatches between the culpability of a class of offenders and the severity of a

penalty); id. at 2465 (referring to Grahams categorical bar with respect to life-

without-parole sentences imposed on a juvenile for nonhomicide offenses); id. at 2466 n.6

(stating that Graham established a flat ban for nonhomicide offenses); id. at 2471

(referring to Graham as an example of a decision that categorically bar[red] a penalty

for a class of offenders or type of crime); id. at 2476 (Breyer, J., concurring) (stating that

Graham dictates a clear rule: The only juveniles who may constitutionally be sentenced

to life without parole are those convicted of homicide offenses who kill or intend to kill

(quoting Graham, 560 U.S. at 69)); id. at 248081 (Roberts, C.J., dissenting) (stating that

Graham bar[red] life without parole for juvenile nonhomicide offenders); id. at 2483

(Thomas, J., dissenting) (stating that the Court in Graham conclude[d] that the

Constitution prohibits a life-without-parole sentence for a nonhomicide offender who was

under the age of 18 at the time of his offense); id. at 248990 (Alito, J., dissenting)

(stating that the Court held in Graham that a trial judge with discretionary sentencing

authority may not impose a sentence of life without parole on a minor who has committed

a nonhomicide offense).

12
 When the Court announces that a rule applies to an entire category of offenders,

factual distinctions within that category are no longer material. Thus, when the Court

announces a categorical holding, it clearly establishes the law applicable within the

defined contours of that category.5 Federal courts must determine only whether a case

falls within the categorical holding announced by the Supreme Court. If it does, the law

is clearly established, and the Supreme Courts rule must be applied.

The Graham Court defined its holding with respect to three criteria: (1) the

sentencing practice; (2) the nature of the offense; and (3) the characteristics of the

offender. See Graham, 560 U.S. at 6061; id. at 61 ([A] sentencing practice itself is in

question. This case implicates a particular type of sentence as it applies to an entire class

of offenders who have committed a range of crimes.); id. at 6869 (considering the

status of the offenders and then the nature of the offenses to which this harsh penalty

might apply); id. at 74 (holding that (1) for a juvenile offender (2) who did not

commit homicide (3) the Eighth Amendment forbids the sentence of life without

parole. (emphasis added)). We examine each of these criteria in turn. We conclude,

first, that the sentencing practice considered by the Court includes any sentence that

5
This conclusion is consistent with Supreme Court holdings that imply
categorical rules would have a broader reach than holdings which merely apply principles
to facts. See Howes v. Fields, 565 U.S. 499, 505 (2012) (holding that the court of appeals
erred in concluding that the law was clearly established by a categorical rule when the
Supreme Court had repeatedly declined to adopt any categorical rule with respect to [the
issue], thereby implying that a categorical rule, if announced, would be clearly
established law for all defendants who fell under the rules purview); Thaler v. Haynes,
559 U.S. 43, 49 (2010) (same).

13
would deny the offender a realistic opportunity for release in the offenders lifetime;

second, that the Courts analysis regarding the nature of the offense applies to all

nonhomicide offenses, regardless of the number or severity of those offenses; and, third,

that the Courts analysis regarding the characteristics of the offender applies to any

offender who was under the age of eighteen at the time of his or her offense.

A. The Sentencing Practice

The Court in Graham considered all sentences that deny convicts the possibility

of parole. Id. at 70. The Court repeatedly referred to these sentences as life without

parole sentences, see, e.g., id. at 62, but a sentencing court need not use that specific

label for a sentence to fall within the category considered by the Court. In fact, it is

important to note that Graham himself was not sentenced to life without parole; he was

sentenced to life. Id. at 57. It was only because the State of Florida had abolished its

parole system that Graham would have no opportunity to obtain release. Id. The Court in

Graham focused, not on the label attached to the sentence, but on the irrevocability of the

punishment. Id. ([T]his sentence means denial of hope.); id. ([T]he sentence alters the

offenders life by a forfeiture that is irrevocable. It deprives the convict of the most basic

liberties without giving hope of restoration.); id. at 74 (By denying the defendant the

right to reenter the community, the State makes an irrevocable judgment about that

persons value and place in society.). In this context, there is no material distinction

between a sentence for a term of years so lengthy that it effectively denies the offender

any material opportunity for parole and one that will imprison him for life without the

14
opportunity for parole both are equally irrevocable. Id. at 113 n.11 (Thomas, J.,

dissenting) (It is difficult to argue that a judge or jury imposing such a long sentence

which effectively denies the offender any material opportunity for parole would

express moral outrage at a life-without-parole sentence.); see also Moore, 725 F.3d at

1191 (Moores sentence of 254 years is materially indistinguishable from a life sentence

without parole because Moore will not be eligible for parole within his lifetime.).

Despite Oklahomas arguments to the contrary, we cannot read the Courts

categorical rule as excluding juvenile offenders who will be imprisoned for life with no

hope of release for nonhomicide crimes merely because the state does not label this

punishment as life without parole. The Constitutions protections do not depend upon a

legislatures semantic classifications.6 Limiting the Courts holding by this linguistic

6
Cf. Natl Fedn of Indep. Bus. v. Sebelius, __ U.S. __, 132 S. Ct. 2566, 259495
(2012) (taking a functional approach to decide whether a provision labeled a penalty
was constitutional as a tax, because the label chosen by Congress does not control
whether an exaction is within Congresss constitutional power to tax); Freytag v.
Commissioner, 501 U.S. 868, 881 (1991) (concluding that a special trial judge is an
inferior Officer whose appointment must conform to the Appointments Clause because
the degree of authority exercised by the special trial judges [was] so significant that it
was inconsistent with the classifications of lesser functionaries or employees); Bernal
v. Fainter, 467 U.S. 216, 22324 (1984) (holding that, in the context of an equal
protection claim, the question of whether notaries public fall within that category of
officials who perform functions that go to the heart of representative government, does
not depend upon the states designation of notaries because the Court has always looked
to the actual function of the position as the dispositive factor (quoting Sugarman v.
Dougall, 413 U.S. 634, 647 (1973))); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274,
285 (1977) (noting that courts should not attach[] constitutional significance to a
semantic difference); Ry. Express Agency v. Virginia, 358 U.S. 434, 441 (1959) (noting
that a legislature may not effect a validation of a tax, otherwise unconstitutional, by
merely changing its descriptive words).

15
distinction would allow states to subvert the requirements of the Constitution by merely

sentencing their offenders to terms of 100 years instead of life. The Constitutions

protections are not so malleable.

More importantly, the Court did not just hold that it violated the Eighth

Amendment to sentence a juvenile nonhomicide offender to life without parole; it held

that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must

provide that offender with a meaningful opportunity to obtain release. Id. at 75; see

also id. ([The Eighth Amendment] does prohibit States from making the judgment at the

outset that those offenders never will be fit to reenter society.). Further, the Court

explained that its categorical holding was necessary because it would give[] all juvenile

nonhomicide offenders a chance to demonstrate maturity and reform. Graham, 560 U.S.

at 79 (emphasis added). If the rule announced in Graham is to provide all juvenile

offenders such an opportunity, it must be read to apply to all sentences that are of such

length that they would remove any possibility of eventual release. Thus, we conclude, the

sentencing practice that was the Courts focus in Graham was any sentence that denies a

juvenile nonhomicide offender a realistic opportunity to obtain release in his or her

lifetime, whether or not that sentence bears the specific label life without parole.

B. The Nature of the Offense

The Court in Graham considered all juvenile offenders who had not committed

homicide, regardless of the number or severity of nonhomicide crimes committed. The

Court defined the nature of the offense in this way because it drew a moral distinction

16
between homicide and nonhomicide crimes a difference in kind. See Graham, 560

U.S. at 69. According to the Court, [t]here 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.

Id. (alteration in original) (quoting Kennedy v. Louisiana, 554 U.S. 407, 438 (2008)).

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. (quoting

Enmund v. Florida, 458 U.S. 782, 797 (1982)). Therefore, 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. Id.

At no point did the Court draw any distinctions with regard to the severity or

number 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. Again, we decline Oklahomas invitation to

invent distinctions that were not drawn by the Court. To the contrary, the Court

specifically referred to offenders with multiple crimes and multiple charges, including

Budder himself,7 as offenders who, as juveniles, regardless of their nonhomicide crimes,

7
At that time, the OCCA had not yet modified Budders two life-without-parole
sentences to life sentences. This distinction, however, does not detract from the fact
that the Court, although aware of Budders multiple charges and corresponding multiple
sentences, considered him as part of the category addressed in Graham.

17
were not sufficiently culpable to deserve a sentence of life without the opportunity for

parole. See, e.g., id. at 64 (citing a news article about Budders sentence); id. at 7677

(referring to an offenders past encounters with the law and the second and third

chances he had been given); id. at 79 (referring to Grahams multiple bad acts,

crimes, and mistakes).

Again, we must emphasize that states may not circumvent the strictures of the

Constitution merely by altering the way they structure their charges or sentences. Just as

they may not sentence juvenile nonhomicide offenders to 100 years instead of life, they

may not take a single offense and slice it into multiple sub offenses in order to avoid

Grahams rule that juvenile offenders who do not commit homicide may not be sentenced

to life without the possibility of parole. When the Court compared the severity of the

crime with the severity of the punishment, in light of the characteristics of the offender, it

did not look to the states definitions or the exact charges brought. It looked to whether

the offender was a juvenile, whether the offender killed or intended to kill the victim, and

whether the sentence would deny the offender any realistic opportunity to obtain release.

The Court specifically concluded that, not only was a categorical rule appropriate, it was

necessary, id. at 75, because a case specific approach would allow courts to account

for factual differences between cases and to impose life without parole sentences for

particularly heinous crimes, id. at 77. The Court found this approach to pose too great a

risk that some juveniles would receive life without parole sentences despite insufficient

culpability. Id. at 78 (quoting Roper, 543 U.S. at 57273). The Court was not

18
convinced that courts taking a case-by-case proportionality approach could with

sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that

have the capacity for change. Id. at 77. Not only did the Court draw the line at

homicide, it structured a categorical rule specifically to prevent the possibility that a

sentencing judge would ever impose a sentence of life without the possibility of parole on

a juvenile who did not commit homicide. The Eight Amendment prohibits such a

sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.

C. The Characteristics of the Offender

The Court in Graham considered the unique characteristics of offenders who

committed their crimes before reaching the age of eighteen. The Court had previously

established in Roper v. Simmons, 543 U.S. 551 (2005), that because juveniles have

lessened culpability they are less deserving of the most severe punishments. Graham,

560 U.S. at 68 (quoting Roper, 543 U.S. at 569). The Court stated that it had no reason

to reconsider the Courts observations in Roper about the nature of juveniles and

developments in psychology and brain science continue to show fundamental differences

between juvenile and adult minds. Id. The Court addressed these differences at length

in its discussion of whether the culpability of the offenders at issue, in light of their

crimes and characteristics, was proportionate to the severity of the punishment in

question. Id. at 67. Throughout this part of the opinion, the Courts analysis relied upon

the age of the offender as the distinguishing characteristic.

First, the Court noted that, [a]s compared to adults, juveniles have a lack of

19
maturity and an underdeveloped sense of responsibility; they are more vulnerable or

susceptible to negative influences and outside pressures, including peer pressure; and

their characters are not as well formed. Id. at 68 (quoting Roper, 543 U.S. at 569).

Accordingly, juvenile offenders cannot with reliability be classified among the worst

offenders. Id. (quoting Roper, 543 U.S. at 569). Further, [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. (quoting Roper, 543 U.S. at 570).

Second, the Court noted that life without parole is the second most severe

penalty permitted by law. Id. at 69 (quoting Harmelin, 501 U.S. at 1001). But not only

is it a severe penalty for all who receive it, it is an especially harsh punishment for a

juvenile because [a] 16-year-old and a 75-year-old each sentenced to life without parole

receive the same punishment in name only. Id. at 70. [A] juvenile offender will on

average serve more years and a greater percentage of his life in prison than an adult

offender. Id.

Third, the Court concluded that none of the recognized goals of penal sanctions

retribution, deterrence, incapacitation, and rehabilitation justified the sentence of life

without parole for juvenile nonhomicide offenders. Id. at 71. In this discussion, the

Court noted that retribution was not proportional, given the reduced culpability of

juveniles, id., that juveniles lack of maturity prevented a justification of deterrence, id. at

72, and that incapacitation was inadequate to justify the punishment because

incorrigibility is inconsistent with youth, id. at 7273 (quoting Workman v.

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Commonwealth, 429 S.W.2d 374, 378 (Ky. App. 1968)). All three of these conclusions

are dependent upon the age of the offender.

Therefore, we conclude that the Courts categorical rule in Graham covered all

offenders who committed their crimes before the age of eighteen and who did not kill,

intend to kill, or foresee that life would be taken. It compared the culpability of these

offenders to the severity of the sentence, in this case any sentence that would deprive the

offender of a realistic opportunity for release in his or her lifetime. The Court concluded

that such sentences were categorically unconstitutional when applied to these juvenile

offenders. Id. at 75. Although [a] State is not required to guarantee eventual freedom to

a juvenile offender convicted of a nonhomicide crime, it must provide some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation. Id.

IV

We come, then, to the ultimate question presented here: Does Budders case fall

within Grahams categorical holding? We say again, in the words of the Supreme Court:

The Constitution prohibits the imposition of a life without parole sentence

on a juvenile offender who did not commit homicide. A state need not
guarantee the offender eventual release, but if it imposes a sentence of life it
must provide him or her with some realistic opportunity to obtain release
before the end of that term.

Id. at 82. Like Graham, Budder committed his crimes as a juvenile. Like Graham,

Budder did not commit homicide. Like Graham, Budder received a life sentence in

fact, even more harshly, he received three consecutive life sentences. And, like Graham,

Budders sentence does not provide him a realistic opportunity for release; he would be

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required to serve 131.75 years in prison before he would be eligible for parole. No

fairminded jurist could disagree with these conclusions. In fact, Oklahoma does not even

contest them. Thus, under the categorical rule clearly established in Graham, Budders

sentence violates the Eighth Amendment. The OCCAs judgment was contrary to this

clearly established Supreme Court precedent.8 Accordingly, we reverse and remand with

instructions to grant Budders petition for writ of habeas corpus, to vacate Budders

sentence, and to direct the State of Oklahoma to resentence Budder within a reasonable

period.

8
The OCCAs opinion provides little to no analysis to guide our understanding of
how it read and applied the Supreme Courts rule from Graham. In the absence of an
explanation from the state court, we consider the arguments that might have supported its
decision. See Harrington, 562 U.S. at 102 (Under 2254(d), a habeas court must
determine what arguments or theories supported or, as here, could have supported, the
state courts decision; and then it must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent with the holding in a prior
decision of this Court.). In this case, we do not know whether the OCCA applied the
wrong rule by reading Graham too narrowly, or if it identified the correct rule, but applied
it to materially indistinguishable facts and yet reached a contrary conclusion. See
Williams, 529 U.S. at 405. In either case, we conclude that the OCCAs judgment was
contrary to the Courts holding in Graham, which requires that Budders sentence be
vacated.

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