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Seventh Circuit cracks open a door for juveniles challenging non-mandatory, de facto life sentences

Bernard McKinley v. Kim Butler, 7th Circuit Court of Appeals Case No. 14-1944, 1/4/16

canstock19439399McKinley failed to raise an Eighth Amendment claim in his state court challenges to the sentence he received for a murder he committed at the age of 16. That means he procedurally defaulted the claim for purposes of his federal habeas challenge to the sentence. But instead of affirming the district court’s dismissal of McKinley’s habeas petition, a majority of this Seventh Circuit panel stays the habeas proceeding and, based on reasoning that could be useful to other juveniles seeking to challenge long sentences, gives McKinley a chance to go back to state court to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012).

McKinley’s habeas petition asserts that his 100-year sentence violates the Eighth Amendment’s prohibition on cruel and unusual sentences, but he never made that claim in his state court challenges to his conviction and sentence. That means the claim is defaulted unless the failure was excusable, and McKinley claims the failure is excusable because his state appeals occurred before the case that supports his argument: Namely, Miller, which held that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders, 132 S. Ct. at 2469.

The Illinois law McKinley was sentenced under didn’t mandate life without parole, though; the sentencing judge had considerable sentencing discretion. So how does Miller help him? It helps because Miller also said that in deciding on a sentence for a minor (and McKinley was only 16 when he committed the murder), “we 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. at 2469 (emphasis added). The judge in McKinley’s case didn’t do that; nor did the judge consider the “children are different” jurisprudence that was developing even before Miller, in Roper v. Simmons, 543 U.S. 551 (2005) (imposing the death penalty on a minor violates the Eighth Amendment), and Graham v. Florida, 130 S. Ct. 2011 (2010) (life without parole for non-homicide offenses violates the Eighth Amendment). (Slip op. at 4-5).

Does it matter that McKinley wasn’t given a “life” sentence in so many words, but instead was sentenced to a term of years? No, says the majority, and its reasoning supports using Miller to challenge discretionarily-imposed, de facto life sentences:

…[McKinley’s sentence] is such a long term of years (especially given the unavailability of early release) as to be—unless there is a radical increase, at present unforeseeable, in longevity within the next 100 years—a de facto life sentence, and so the logic of Miller applies. The respondent (the warden of the prison in which [McKinley] is held) wants to limit Miller to cases in which the legislature decrees imprisonment for life, thus stripping the sentencing judge of any discretion to impose a shorter sentence in light of the particulars of the defendant and his crime. But the “children are different” passage that we quoted earlier from Miller v. Alabama cannot logically be limited to de jure life sentences, as distinct from sentences denominated in number of years yet highly likely to result in imprisonment for life. Cf. Moore v. Biter, 725 F.3d 1184, 1191–92 (9th Cir. 2013). The relevance to sentencing of “children are different” also cannot in logic depend on whether the legislature has made the life sentence discretionary or mandatory; even discretionary life sentences must be guided by consideration of age-relevant factors. See, e.g., People v. Gutierrez, 324 P.3d 245, 267–69 (Cal. 2014); Ex Parte Henderson, 144 So. 3d 1262, 1280, 1283–84 (Ala. 2013). Although our court said in Croft v. Williams, 773 F.3d 170, 171 (7th Cir. 2014), that Miller is inapplicable even to a defendant sentenced to life without parole provided that the legislature does not require such a sentence but leaves the matter to the sentencing judge, the court did not discuss the “children are different” passage in Miller. That passage implies that the sentencing court must always consider the age of the defendant in deciding what sentence (within the statutory limits) to impose on a juvenile. (Slip op. at 5-6).

Wisconsin courts have not directly addressed this view of Miller. Of course, State v. Ninham, 2011 WI 33, 333 Wis.2d 335, 797 N.W.2d 451, which was decided before Miller, rejected the argument that life-without-parole for a juvenile offender “categorically” violates the Eighth Amendment. But Ninham’s specific claim was expressly left open by Miller, 132 S. Ct. at 2469; and in any event Ninham‘s holding doesn’t preclude an argument like that made by McKinley: Miller requires consideration of the fact that “children are different” to assure the sentence comports with the Eighth Amendment and a defendant is entitled to re-sentencing if the sentencing judge didn’t do that.

What does matter is whether Miller applies retroactively to cases on collateral review; absent retroactivity, McKinley can’t invoke it. That question hasn’t been answered, and the majority doesn’t answer it here because McKinley’s federal claim is “premature” in light of People v. Davis, 6 N.E.3d 709 (Ill. 2014). Applying Illinois law that allows a successive postconviction petition for prisoners who show “cause for, and prejudice from, failing to raise the claim in an initial post conviction petition,” 725 ILCS 5/122-1(f), Davis held a defendant satisfies this “cause and prejudice” standard for a Miller claim by showing Miller was unavailable to him either on direct appeal or in his initial post-conviction proceedings. It also held that under Illinois law a Miller claim could be enforced retroactively on collateral review. Because Davis  gives McKinley an available avenue for relief in state court for his claim, the majority stays the habeas proceeding to allow him to pursue that relief (and gives strong advice to the state courts on how they might handle McKinley’s claim, from pointing out that “murders vary in their gravity and in the information they reveal concerning the likelihood of recidivism by the murderer” and emphasizing that while Miller does not forbid life sentences for juvenile murderers, “it expresses great skepticism concerning” such a sentence). (Slip op. at 8-12).

One judge dissents, criticizing the majority’s attempt to distinguish Croft v. Williams; arguing McKinley could have invoked Roper and Graham on direct appeal and/or during state collateral review; and suggesting McKinley can’t seek relief under Davis because, like Miller, that case involved a mandatory life sentencing scheme. (Slip op. at 13-17). In light of the dissent, this case may have an en banc petition in its future.

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