Johnny Lee v. LOU ARCHULETA, Warden, F.C.F.; THE ATTORNEY GENERAL OF THE STATE OF COLORADO

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JOHNNY LEE,
Petitioner - Appellant,
v.
LOU ARCHULETA, Warden, F.C.F.; THE
ATTORNEY GENERAL OF THE STATE
OF COLORADO,
Respondents - Appellees.
No. 15-1346
(D.C. No. 1:15-CV-00700-LTB)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Johnny Lee is a state prisoner in Colorado who was sentenced to a term in prison
longer than his life expectancy for crimes that he committed as a juvenile. He has sought
review by this court of the denial by the United States District Court for the District of
Colorado of his application under 28 U.S.C. § 2254 for a writ of habeas corpus on the
ground that his sentence is unconstitutional under Graham v. Florida, 560 U.S. 48
(2010). We granted Mr. Lee a certificate of appealability in December 2015 and abated
* After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral
argument. This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 15, 2021
Christopher M. Wolpert
Clerk of Court
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this appeal while he sought to exhaust his remedies in Colorado state court. He has now
done so, but without obtaining any relief. Although the State prevailed in the Colorado
courts, it now concedes that circuit precedent requires this panel to hold that Mr. Lee’s
sentence is unconstitutional. See Budder v. Addison, 851 F.3d 1047 (10th Cir. 2017).1
Exercising jurisdiction under 28 U.S.C. §§ 1291 & 2253, we reverse the district court and
order it to grant a writ of habeas corpus unless Colorado resentences Mr. Lee in a
constitutionally permissible manner within a reasonable period of time.
In 1999 when he was 17 years old, Mr. Lee and five other gang members abducted
and raped a woman in Boulder, Colorado. Mr. Lee was tried as an adult in Colorado state
court, and a jury convicted him of kidnapping (Count 1), two counts of sexual assault
(Counts 3 and 4), and conspiracy to commit sexual assault (Count 6). He received a 36-
year sentence for the kidnapping conviction, indeterminate sentences of 36 years to life
for each sexual-assault conviction, and a 16-year sentence for the conspiracy conviction.
The sentences on Counts 1, 3, 4 were to run consecutively, and the conspiracy sentence
was to run concurrently with the sentence on Count 4. Thus, Mr. Lee’s sentence was
effectively 108 years to life. As the State concedes, accounting for all possible good-
behavior credits, Mr. Lee would not be eligible for parole during his life expectancy.
Since sentencing in 2001, Mr. Lee has pursued a direct appeal in state court and
collateral review in both Colorado and federal courts. In the interim the Supreme Court
decided Graham. Holding that the Eighth Amendment “prohibits the imposition of a life
1 Mr. Lee’s § 2254 application also raised nine other claims, but he is not pursuing any
of them in this appeal.
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without parole sentence on a juvenile offender who did not commit homicide,” the Court
said that a State must provide a juvenile offender “with some realistic opportunity to
obtain release.” Graham, 560 U.S. at 82. Seven years later in Budder, this court held
that Graham’s categorical rule “must be read to apply to all sentences that are of such
length that they would remove any possibility of eventual release . . . whether or not that
sentence bears the specific label ‘life without parole.’” 851 F.3d at 1057.
Recognizing that this panel is bound by circuit precedent,2 the State concedes that
we must hold that Mr. Lee is entitled to a writ of habeas corpus. The parties further agree
that the writ must be conditional on Colorado’s failure to revise Mr. Lee’s sentence to
one consistent with Graham and Budder. The only remaining controversy concerns two
specifics regarding the content of the conditional writ.
First, Mr. Lee wants us to require Colorado to resentence him within six months.
The State prefers that the deadline be only a “reasonable time” for resentencing. We see
no reason to depart from the common practice of requiring only that resentencing be
within a reasonable time. See Richmond v. Lewis, 506 U.S. 40, 52 (1992) (instructing
that the writ issue unless the State corrects its sentencing error “within a reasonable
period of time”); Budder, 851 F.3d at 1060 (within a “reasonable period”); Wood v.
Milyard, 721 F.3d 1190, 1198 (10th Cir. 2013) (within a “reasonable time”).
The second disagreement concerns what should happen if the State fails to
resentence Mr. Lee within a reasonable time. The State urges us to say that if no
2 The State, however, continues to maintain that Budder incorrectly interpreted Graham,
and it preserves its option to seek Supreme Court review of that issue.
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resentencing occurs, one of Mr. Lee’s consecutive 36-year sentences for sexual assault
will be deemed to run concurrently with his other sentences. Mr. Lee argues that the
conditional writ should require his release if he is not timely resentenced. We agree with
Mr. Lee. “Habeas lies to enforce the right of personal liberty; when that right is denied
and a person confined, the federal court has the power to release him. Indeed, it has no
other power; it cannot revise the state court judgment; it can act only on the body of the
petitioner.” Fay v. Noia, 372 U.S. 391, 430–31 (1963), abrogated on other grounds by
Coleman v. Thompson, 501 U.S. 722 (1991); see Brown v. Vanihel, 7 F.4th 666, 670 (7th
Cir. 2021) (same).
We REVERSE the judgment of the district court and REMAND with instructions
to grant Mr. Lee’s application for a writ of habeas corpus unless the State of Colorado
resentences him to a constitutionally permissible sentence within a reasonable period of
time.
Entered for the Court
Harris L Hartz
Circuit Judge
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