Eulandas J. Flowers v. James Kimble

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EULANDAS J. FLOWERS,
Petitioner-Appellant,
v.
JAMES KIMBLE,
Respondent-Appellee.
No. 19-15116
D.C. No. 2:15-cv-02670-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted November 16, 2022
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Partial Concurrence by Judge COLLINS.
Eulandas Jay Flowers appeals the district court’s dismissal of Flowers’
habeas petition. Flowers seeks post-conviction relief because he was sentenced to
natural life for a first-degree murder he committed as a juvenile. Following his
sentencing, the Supreme Court held that mandatory life without parole for
FILED
JAN 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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juveniles violates the Eighth Amendment. Miller v. Alabama, 567 U.S. 460, 465
(2012). Nonetheless, the Arizona state court dismissed Flowers’ Miller claims as
procedurally defaulted. Flowers argues that his petition is not procedurally
defaulted because the state-court judgment is not independent of federal law and
because he is “actually innocent” of a natural-life sentence.1
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review a
district court’s denial of a habeas petition and the conclusion that a claim is
procedurally defaulted de novo. Dixon v. Shinn, 33 F.4th 1050, 1053 (9th Cir.
2022); Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011). We affirm.
1. The parties are familiar with the facts in this case, and we repeat them
only as necessary. Flowers argues that his claim is not procedurally defaulted
because the ruling from the Arizona Court of Appeals was not based on an
independent state-law ground. Flowers is incorrect.
As relevant to this appeal, Flowers brought at least one notice for post-
conviction relief that did not state the grounds for relief and was dismissed as
1 Flowers also asserts other arguments that were not in the district court’s
certificate of appealability, but we decline to consider those issues. See 28 U.S.C.
§ 2253(c)(2) (a certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.”); 9th Cir. R. 22-
1 circuit advisory note (we may “decline to address uncertified issues if they are
not raised . . . as required by this Rule”).
2

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untimely. Flowers then filed an additional notice for post-conviction relief, the
first notice invoking Miller, and the Maricopa County Superior Court dismissed
this notice on the merits.2 Flowers did not appeal these dismissals.
Flowers then filed a second notice invoking Miller, and the Court dismissed
it on the merits.3 Flowers unsuccessfully applied for reconsideration and appealed
the dismissal of his second notice invoking Miller.
In Flowers’ state-court appeal, the Arizona Court of Appeals held that
Flowers’ claim was procedurally defaulted based on Arizona Rule of Criminal
Procedure 32.2(a): “Flowers raised this same issue in his previous post-conviction
relief proceeding. Any claim a defendant raised in an earlier post-conviction relief
proceeding is precluded.” The Arizona Court of Appeals attempted to categorize
Flowers’ claim to determine whether it fell within one of the enumerated
exceptions to the bar on successive petitions and concluded that “[n]one of the
exceptions allowed under Rule 32.2.b. apply.” But the Court of Appeals never
conducted an adjudication on the merits. Rather, the Arizona Court of Appeals
2 The Magistrate Judge’s report and recommendation calls this notice an
“amended” or “second” notice.
3 Flowers calls this post-conviction notice his “seventh” notice and his
“second” invoking Miller. The state trial court described this notice as Flowers’
“sixth Rule 32 proceeding.” The Magistrate Judge’s report and recommendation
describes this as Flowers’ “third notice of post-conviction relief.”
3

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focused its analysis on whether Flowers raised his claim properly—not whether
Miller actually applied or was relevant to his claim for relief. This Court’s
precedent is clear that a state court can “categorize” a claim that raises a
constitutional issue without becoming entangled with the federal Constitution. See
Nitschke v. Belleque, 680 F.3d 1105, 1110 (9th Cir. 2012). And to the extent that
Arizona’s procedural rule asks a court to determine whether the federal precedent
would apply or change the outcome in the case, the Arizona Court of Appeals
never reached the merits of his Miller claim: Flowers’ subsequent notice relied on
the same precedent—Miller—as his previous, unsuccessful notice. The Arizona
Court of Appeals rejected Flowers’ effort to relitigate his Miller-based claims on
procedural grounds. See Ariz. R. Crim. P. 32.2(b). Because the Court of Appeals
decision “did not reach the merits” of Flowers’ claim and “was clearly and
expressly based on state law,” it was not “interwoven” with federal law, and
federal review of Flowers’ Miller claim is barred. See id. at 1108.
2. Flowers argues that his procedural default should be excused under the
fundamental miscarriage of justice exception because he is “actually innocent” of
his natural-life sentence. We have never held that actual innocence extends to non-
capital sentences outside of the escape-hatch context. See, e.g., Allen v. Ives (Allen
I), 950 F.3d 1184, 1189 (9th Cir. 2020) (holding that a defendant can be “actually
4

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innocent” of the career offender provisions sufficient to permit jurisdiction over a
§ 2241 petition); Allen v. Ives (Allen II), 976 F.3d 863, 869 (9th Cir. 2020) (W.
Fletcher, J., concurring in the denial of reh’g en banc) (explaining that Allen I only
applies when retroactive Supreme Court precedent “[comes] to light after the
opportunity to raise it in a § 2255 motion had passed”); Shepherd v. Unknown
Party, 5 F.4th 1075, 1077 (9th Cir. 2021) (limiting Allen I to petitioners who
“‘received a mandatory sentence under a mandatory sentencing scheme’”).
Here, Flowers is not “actually innocent” of natural life because he received
the equivalent of a Miller hearing. See Bell v. Uribe, 748 F.3d 857, 870 (9th Cir.
2014) (when a judge considers “both mitigating and aggravating factors under a
sentencing scheme that affords discretion and leniency, there is no violation of
Miller”). The sentencing judge considered Flowers’ age, his ability to appreciate
the wrongfulness of his conduct, and the fact that he was intoxicated at the time of
the crime. The judge found that Flowers’ age was a “mitigating circumstance . . .
sufficiently substantial to call for leniency.” Despite this mitigating circumstance,
however, the sentencing judge found that Flowers was “a danger to the public” and
“any chance of marked rehabilitation [wa]s extremely remote.” For these reasons,
the judge imposed a sentence of natural life. Because the sentencing judge
considered Flowers’ “youth and its attendant characteristics” and the possibility of
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rehabilitation, the judge did all that Miller required. See Jones v. Mississippi, 141
S. Ct. 1307, 1317–18 (2021). The judge’s considerations are sufficient to satisfy
Miller even though Arizona abolished parole for crimes committed after January 1,
1994. See Jessup v. Shin, 31 F.4th 1262, 1266 (9th Cir. 2022) (consideration of
juvenile defendant’s youth and ability to reform when imposing a life without
parole sentence was sufficient to avoid resentencing in light of Miller).
Because Flowers is not innocent of his natural-life sentence, his claim
remains procedurally defaulted, and we need not reach the merits of his petition.
AFFIRMED.
6

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Flowers v. Kimble, No. 19-15116
COLLINS, Circuit Judge, concurring in part and concurring in the judgment:
I concur in Section 1 of the court’s memorandum disposition, which
correctly holds that the Arizona Court of Appeals’ May 28, 2015 decision did not
address the merits of Flowers’ claim under Miller v. Alabama, 567 U.S. 460
(2012), when it concluded that Flowers’ Miller claim was “precluded” by having
been raised unsuccessfully in a prior state post-conviction petition. See State v.
Flowers, 2015 WL 3468204, at *1 (Ariz. Ct. App. May 28, 2015).
The rejection of a second state post-conviction application on preclusion
grounds would not ordinarily give rise to a procedural default barring federal
review if the prior state court rejection of the claim was on the merits. See
Guillory v. Allen, 38 F.4th 849, 855–56 (9th Cir. 2022). However, we need not
decide whether Flowers’ first state post-conviction petition raising a Miller claim
was rejected on the merits. Flowers failed to appeal that earlier denial, and he
thereby failed to exhaust his state remedies with respect to his Miller claim. For
that reason, Flowers has procedurally defaulted his Miller claim. See Guillory, 38
F.4th at 855 n.5. He therefore must show some basis for overcoming that
procedural default.
The only such ground that is included within the certificate of appealability
in this case is Flowers’ argument that, under the reasoning of Schlup v. Delo, 513
FILED
JAN 27 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
U.S. 298 (1995), he should be considered to be “actually innocent” of his life
sentence for purposes of excusing his procedural default. I agree with the majority
that no such exception is applicable here, but I would rely on different reasoning.
To establish that he is “actually innocent” of his sentence in the Schlup sense
under our caselaw, Flowers would have to show that some required element
needed to make him eligible for his particular sentence under the governing
substantive law (here, Arizona law) is missing as a factual matter. See Sawyer v.
Whitley, 505 U.S. 333, 336 (1992) (holding that, “to show ‘actual innocence’” of
the death penalty, “one must show by clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found the petitioner eligible
for the death penalty under the applicable state law”); Bousley v. United States, 523
U.S. 614, 623 (1998) (holding that “‘actual innocence’ means factual innocence,
not mere legal insufficiency”); Allen v. Ives, 950 F.3d 1184, 1189–90 (9th Cir.
2020) (holding that “actual innocence” standard would be met if a petitioner’s
prior conviction was not a “controlled substance offense” that would qualify him
for “career offender” sentencing status). Flowers has made no such showing here.
His argument is instead that, merely because he allegedly has a valid Miller claim,
he should be deemed to be actually innocent of his life sentence. This is nothing
more than an argument that Miller claims should be categorically exempt from
procedural default doctrines. I see no basis in Schlup or Allen for such a rule.

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3
Because Flowers has provided no basis in this appeal for avoiding the
procedural default of his Miller claim, it was properly rejected by the district court.

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