Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS J. ODOM, No. 25-3809 D.C. No. Petitioner - Appellant, 2:21-cv-02180-JJT v. MEMORANDUM* DAVID SHINN, Director, Arizona Department of Corrections, Rehabilitation, and Reentry; ATTORNEY GENERAL OF THE STATE OF ARIZONA, Respondents - Appellees. Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding Submitted October 29, 2026** Phoenix, Arizona Before: GRABER, HURWITZ, and BADE, Circuit Judges. Petitioner Thomas Odom timely appeals from the district court’s denial of habeas relief. Reviewing de novo, Brown v. Broomfield, 186 F.4th 1143, 1154 * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). (9th Cir. 2026), we affirm. A state-court jury concluded that, at the age of 16, Petitioner committed murder. At the sentencing hearing, the State’s lawyer advocated for a sentence of “natural life,” and Petitioner’s lawyer sought a lesser sentence of “a life sentence with the possibility of parole after 25 years.” Petitioner’s lawyer repeatedly stressed Petitioner’s young age at the time of the offense. He also submitted a psychological evaluation detailing the difficulties of Petitioner’s youth and the effects of those difficulties on his behavior. The sentencing judge considered all the evidence, including Petitioner’s age, and chose natural life as “the appropriate sentence.” Petitioner sought post-conviction relief in state court, asserting that his sentence violated the Eighth Amendment, as described in Miller v. Alabama, 567 U.S. 460 (2012), and its progeny. After the Arizona Supreme Court decided State ex rel. Mitchell v. Cooper (“Bassett”), 535 P.3d 3 (Ariz. 2023), the Arizona Court of Appeals denied relief to Petitioner. Bassett rejected the petitioner’s Eighth Amendment claim because the sentencing court considered the petitioner’s age and its attendant circumstances during a discretionary sentencing procedure. Id. at 13. Petitioner sought federal habeas relief. The district court denied relief, primarily because of our decision in Jessup v. Shinn, 31 F.4th 1262 (9th Cir. 2022), and certified for appeal Petitioner’s Eighth Amendment claim. In Jessup, we held 2 25-3809 that an Arizona state court reasonably rejected the petitioner’s Eighth Amendment claim where the sentencing court considered whether to impose a sentence of natural life or a sentence of life with the possibility of release. Id. at 1266–68. We reached that conclusion even though, at the time of sentencing, state law dictated that no form of release other than clemency was available. Id. at 1267. We did so because the sentencing judge chose between the two sentences and “genuinely, if mistakenly, thought that he was considering a sentence of life with the possibility of parole.” Id. (emphasis omitted). We conclude that the district court correctly held that the state court’s rejection of Petitioner’s claim was neither an unreasonable application of, nor contrary to, Miller and its progeny. See 28 U.S.C. § 2254(d)(1). As in Jessup, the sentencing judge here considered Petitioner’s age and its attendant circumstances, and the judge chose between the two sentencing options, one of which would have resulted in parole eligibility. Accordingly, “it was reasonable for the state court to distinguish Miller.” Jessup, 31 F.4th at 1268. The state court’s decision also was not “contrary to” Miller. 28 U.S.C. § 2254(d)(1). Miller ruled that a sentence imposed under a mandatory sentencing scheme, in which the sentencing court was precluded from considering age, violated the Eighth Amendment. 567 U.S. at 469–80. Here, however, the sentencing court expressly considered age before choosing between natural life and 3 25-3809 life with the possibility of release after 25 years. The state post-conviction court neither “applie[d] a rule that contradicts” Miller nor “confront[ed] a set of facts that is materially indistinguishable from” Miller. Brown v. Payton, 544 U.S. 133, 141 (2005) (defining “contrary to”). We reject, as unsupported by the record, Petitioner’s assertion that the sentencing judge did not have the genuine but mistaken belief that she was choosing between a sentence of natural life and a sentence of life with the possibility of parole. Three times during the course of the sentencing hearing, Petitioner’s lawyer characterized the lesser sentence that he sought as one allowing for “parole,” including by asking, at the outset, for the court to impose a sentence of “life with the possibility of parole at 25” and, in summary, for the court to impose “a life sentence with the possibility of parole after 25 years.” Because the sentencing judge considered whether to impose a sentence less than natural life and rejected that option, albeit without understanding that she may not have had the ability to impose a lesser sentence under state law, our decision in Crespin v. Ryan, 46 F.4th 803 (9th Cir. 2022), in which the sentencing judge did not exercise any discretion, is inapposite. Id. at 810–11. Finally, we disagree with Petitioner’s contention that a different result is warranted here because the consideration of Petitioner’s age and its circumstances was not “as extensive as in Jessup.” The sentencing court considered Petitioner’s 4 25-3809 age and its attendant circumstances and chose between natural life and a lesser sentence, thus meeting the demands of the Eighth Amendment. See Jessup, 31 F.4th at 1267–68. AFFIRMED. 5 25-3809