                                                       131 Nev., Advance Opinion
                        IN THE SUPREME COURT OF THE STATE OF NEVADA
                                                                                      qe)
                THE STATE OF NEVADA,                                     No. 62931
                Appellant,
                vs.
                ANDRE D. BOSTON,
                Respondent.                                                    DEC 31 2015
                                                                            TRACE
                                                                         CLEg0011 aLk-Nr:           RT
                                                                         BY                  I
                                                                              CHIEF DEF-VitICLERK



                              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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                      Corre6-1-e.J   Or,jer Mo 4441, 4 Dpinioo.                             - 40) 30
                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 first-
                degree 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, Graham must 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 juvenile's natural life
expectancy. Caballero, 282 P.3d at 295; Moore, 725 P.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. See, e.g., 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 (i.e., the Bunch and Kasic courts) focus on a
passage in Graham, which states that "[t]he 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 1191)). 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 NRS 176.017 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." A.B. 267 also amended NRS 176.025 to preclude
                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 Ifthe 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 176.017;
                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 ngt7
                included with the amendments set forth in A.B. 267. We ,agree.
                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.



                                              erry

We concur:
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