ORDER

JOHN J. TUCHI, District Judge.

The Court has considered the Report and Recommendation ("R&R") (Doc. 40) prepared by United States Magistrate Judge John Z. Boyle in this matter, as well as Respondent's Objection (Doc. 41) and Petitioner's Response thereto (Doc. 42). Both the Objection and Response were timely filed. Upon de novo review, the Court will sustain Respondent's Objection to Section IV of the R&R and deny the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.1

Petitioner is serving a life term without the possibility of parole as a result of his conviction for two counts of first degree murder. He also was sentenced to concurrent eighteen-year terms for conspiracy and armed robbery, which terms have now expired. He was fifteen years old in 1999 when he committed these offenses.

At the sentencing hearing, the trial judge had before him the pre-sentence investigation report for the matter, which informed the judge that Petitioner was fifteen years old and in ninth grade at an alternative school at the time of the offenses; that he had a very difficult childhood including his father leaving when Petitioner was eight years old and that he went into a children's home when his mother began using drugs; that he had suffered abuse before being moved to the children's home and was a user of marijuana and methamphetamine at the time of the offenses; that he was spending a good deal of time with friends who were "negative influences" on him at the time of the offenses; and that he was under the care of a psychiatrist to address anger management issues and taking Welbutrin at the time of sentencing. (Doc. 26 at 2-3.) Additionally, the sentencing judge received and reviewed "extensive records from a California social services agency detailing Petitioner's personal background and dysfunctional family history" and a memorandum from a mitigation specialist containing the specialist's assessment of Petitioner based on an interview and review of his records. (Doc. 12 Ex. Q at 15.)

Having reviewed that information, the judge made the following findings and observations at the sentencing hearing:

(Doc. 12 Ex. U at 12-13.) Based on those findings the sentencing judge imposed the sentences of life without possibility of parole for the two murder charges.

The issue before the Court is whether Petitioner's life sentences without possibility of parole violate the Supreme Court's subsequent holding in Miller v. Alabama, 132 S.Ct. 2455 (2012). In Miller, the Supreme Court held "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." 132 S. Ct. at 2469. While the Court in Miller made clear it did not preclude a sentencing judge from imposing a life sentence without parole in homicide cases, it would "require [the sentencing judge] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. The Supreme Court noted that it thought that "appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon" in light of the difficulty "of distinguishing at this early age between `the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.'" Id. (internal citations and quotations omitted).

The parties agree that Miller is retroactive in its application to Petitioner's case, and that Petitioner's "pure" Miller claim2 is exhausted for purposes of AEDPA and therefore properly before this Court for resolution.

The R&R grounded its recommendation for remand and resentencing on Miller's requirement that a sentencing judge's exercise in discretion be guided by an "individualized consideration" of the offender's "age and age-related characteristics," as well as the nature of his crime. (R&R, quoting Miller, 132 S. Ct. at 2469-70, 2475.) The R&R observes that

(R&R at 11, internal quotation omitted.) On this statement of the law and what is required the Court agrees. But the R&R then states that "the trial judge did not consider Petitioner's `age related characteristics' nor discuss `how children are different'":

(R&R at 11, 14.) The above conclusions can only be read as an extension of Miller to require a sentencing judge to discuss "how children are different," either as a direct requirement, or indirectly by equating consideration of a factor to expressly mentioning that consideration in the sentencing proceeding. The Ninth Circuit has not read Miller to impose that requirement.

In Bell v. Uribe, a habeas petitioner challenged her California state court sentence, as a juvenile, to life without parole for the murder of her mother. 748 F.3d 857 (9th Cir. 2014). The information before the sentencing judge, as set forth by the Ninth Circuit, was strikingly similar in depth to the information before the sentencing judge in the instant case. The sentencing judge in Bell merely stated that she had reviewed and considered the probation department's report on the petitioner, "which contained mitigating evidence related to [the petitioner]'s education, health, substance abuse history, and lack of prior criminal record." Id. at 870. Beyond the fact that the petitioner was sixteen at the time of the murder, the sentencing judge did not discuss at all at sentencing "how children are different," within the meaning of Miller, or otherwise expressly address her age-related characteristics. Nonetheless, the Ninth Circuit affirmed the district court's denial of the habeas petition in Bell, holding that the sentencing judge performed, as described above, an adequate individualized assessment of the petitioner and her offense. Id. In reaching its conclusion, the court in Bell focused simply on whether California's applicable sentencing laws "afford[ed] the sentencing judge discretion to consider the specific circumstances of the offender and the offense." Id. As long as she had such discretion, the court in Bell did not require any specific recitation. No such recitation is necessary in the present case.3

Should Petitioner wish to appeal this decision, the Court concludes that a certificate of appealability should issue regarding the Miller issue. As the Supreme Court has recently clarified, the inquiry regarding the issuance of a certificate of appealability "is not coextensive with a merits analysis" and the threshold question of whether "jurists of reason could disagree with the district court's resolution of [Petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further" should be determined without "full consideration of the factual or legal bases adduced in support of the claims." Buck v. Davis, 137 S.Ct. 759, 773 (2017). While the Court concludes that the petitioner's sentencing did not violate the constitutional principles set forth in Miller, the Court cannot conclude that jurists of reason could not find the issue to be debatable.

IT IS ORDERED sustaining Petitioner's Objection (Doc. 41) to Section IV of the Magistrate Judge's R&R (Doc. 40) and overruling the Objection to Section I thereof.

IT IS FURTHER ORDERED adopting the remainder of the R&R (Doc. 40).

IT IS FURTHER ORDERED that the petitioner's First Amended Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 1) is denied and that this action is dismissed with prejudice.

IT IS FURTHER ORDERED that a certificate of appealability shall issue on the question of whether Petitioner's sentencing complied with the constitutional requirements set forth in Miller v. Alabama, 567 U.S. 460 (2012).

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly.