                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             MAR 4 2020
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RONNIE ROY VERA,                                 No.   17-17559

              Petitioner-Appellee,               D.C. No.
                                                 4:15-cv-00613-FRZ-DTF
 v.

CHARLES L. RYAN, Warden, Director,               MEMORANDUM*
Arizona Department of Corrections, et al.,

              Respondent-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                        Argued and Submitted May 15, 2018
                             San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and ZILLY,**
District Judge.

      The State of Arizona appeals the conditional grant of Ronnie Vera’s habeas

corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we reverse.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Thomas S. Zilly, United States District Judge for the
Western District of Washington, sitting by designation.
Because the parties are familiar with the history of this case, we need not recount it

here.

                                           I

        The Arizona Court of Appeals vacated an Arizona superior court order,

which granted post-conviction relief, reasoning that Arizona Revised Statutes

(“A.R.S.”) “§ 13–716 provides an adequate remedy for Vera’s Miller claim.” State

v. Vera, 334 P.3d 754, 759 (Ariz. Ct. App. 2014) (citing Miller v. Alabama, 567

U.S. 460 (2012)). We can grant relief only if this decision is “contrary to, or

involved an unreasonable application of, clearly established Federal law.” 28

U.S.C. § 2254(d)(1).

        The decision is not “contrary to” clearly established federal law because the

Arizona Court of Appeals applied the holding in Miller, as well as the relevant

precedent, and the existence of § 13–716 factually distinguishes this case from

Miller. Vera, 334 P.3d at 757–59; see also Van Lynn v. Farmon, 347 F.3d 735,

738 (9th Cir. 2003) (explaining “contrary to” standard). Nor is the decision an

“unreasonable application of” Miller. See Van Lynn, 347 F.3d at 738 (explaining

“unreasonable application” standard). Miller held that “the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without [the] possibility of

parole for juvenile offenders,” and instead requires “individualized consideration”


                                           2
before imposing such a sentence on a juvenile. 567 U.S. at 479–80. Section

13–716 resentences Vera to life in prison with the possibility of parole after

twenty-five years. Miller therefore does not require any consideration of Vera’s

status as a juvenile offender before imposing this sentence. See Montgomery v.

Louisiana, 577 U.S. __, 136 S. Ct. 718, 736 (2016) (indicating that a state can

remedy a Miller problem by passing a statute that provides juveniles sentenced to

life in prison a possibility of parole).

                                           II

       The Arizona statute did not violate the Ex Post Facto Clause. An ex post

facto sentencing law imposes a harsher sentence than the “law annexed to the

crime, when committed.” Calder v. Bull, 3 U.S. 386, 390 (1798). When a

sentence available at the time of the crime is subsequently rendered

unconstitutional, “[t]he actual existence of [the invalidated sentencing] statute,

prior to such a determination, is [still] an operative fact and may have

consequences which cannot justly be ignored.” Dobbert v. Florida, 432 U.S. 282,

298 (1977) (quoting Chicot Cty. Drainage Dist. v. Baxter State Bank, 308 U.S.

371, 374 (1940)). One such consequence is providing “fair warning as to the

degree of culpability which the State ascribed” to a particular crime. Id. at 297.

Accordingly, for ex post facto purposes, we compare a challenged sentence to the


                                           3
sentences available at the time of the crime, regardless of their present

constitutionality, to determine whether a subsequent law imposes a harsher

sentence. Id. at 297–98; see also Watson v. Estelle, 886 F.2d 1093, 1096 (9th Cir.

1989) (“The key ex post facto inquiry is the actual state of the law at the time the

defendant perpetrated the offense . . . [and] whether he had fair notice of the

consequences of his actions.” (second emphasis added)).

      At the time of the murder in 1995, the sentencing options for juveniles who

committed first degree murder in Arizona were death or life in prison without the

possibility of parole, which at that time were constitutional sentences. A.R.S.

§ 13–703 (1995) (current version at A.R.S. § 13–751); A.R.S. § 41–1604.09(I)

(1995) (eliminating parole for felony offenses committed on or after January 1,

1994) (current version at A.R.S. § 41–1604.09(I)); see also Miller, 567 U.S. at 479

(holding in 2012 that mandatory life in prison without the possibility of parole

sentences for juveniles are unconstitutional); Roper v. Simmons, 543 U.S. 551

(2005) (holding that death sentences for juveniles are unconstitutional). Of these

options, Vera received a sentence of life in prison without the possibility of parole.

In 2014, § 13–716 resentenced Vera to life in prison with the possibility of parole

after twenty-five years. See Vera, 334 P.3d at 757–59. Because this sentence is




                                           4
not harsher than the original sentence Vera received, § 13–716 is not an ex post

facto law as applied to Vera.

                                           III

      In his amended habeas petition, Vera asserted as a ground for relief that

Arizona continues to have no process through which he can seek parole. The

district court did not address this issue because its favorable ruling on Vera’s

ex post facto argument rendered the subject moot. On appeal, we requested

supplemental briefing on the question of whether § 13-716, as implemented by the

Arizona Department of Corrections, actually provides an opportunity for Vera to

obtain parole within the meaning of Miller and Montgomery. Based on the

supplemental submissions, we are not persuaded that it does; however, further

factual development is required, and we remand for the district court’s

consideration in the first instance, with the district court directed to allow

amendment of the petition as necessary.1

      REVERSED AND REMANDED.2


      1
         We also leave it to the district court to consider in the first instance whether
this issue is ripe.
      2
        We deny Vera’s motion for bail pending appeal, without prejudice to
renewal of the motion before the district court. We also deny as moot Vera's
motion to refer this appeal to mediation. We grant the State’s motion to withdraw
its motion for a stay of this appeal.
                                            5
