851 F.3d 686
7th Cir.2017Background
- McKinley Kelly was convicted in Indiana for two murders committed at age 16 and sentenced to 110 years (two consecutive 55-year terms); parole eligibility at age 70 (Feb. 1, 2050).
- Kelly seeks authorization under 28 U.S.C. § 2244(b)(3) to file a second or successive § 2254 habeas petition, arguing his sentence is unconstitutional under Miller v. Alabama as made retroactive by Montgomery v. Louisiana.
- Miller prohibits mandatory life-without-parole for juveniles and requires sentencing judges to give “special” consideration to youth; it also applies to de facto life terms phrased as long terms of years.
- The Indiana sentencing scheme set a 55-year presumptive murder term with +/- 10 years for special circumstances and allowed consecutive sentences; Kelly’s exposure ranged from 45 to 130 years depending on adjustments and concurrency.
- At sentencing the trial judge listed six aggravating factors and two mitigating factors (Kelly’s age and lack of prior adult/felony convictions); the Indiana Supreme Court affirmed, finding the judge adequately balanced aggravating and mitigating factors.
- The Seventh Circuit majority denied authorization, holding the sentencing court had sufficient discretion and considered Kelly’s youth as Miller requires; Judge Posner dissented, arguing the record shows only cursory consideration of youth and district-court review should be allowed to determine incorrigibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kelly can invoke Miller to challenge a de facto life term set as long terms of years | Kelly: 110-year term is a de facto life sentence; Miller (and Montgomery) applies and requires resentencing consideration of youth | State: Indiana sentencing law gave judge broad discretion and allowed consideration of youth; judge did consider age in mitigation | Denied: Court held Miller’s requirements were satisfied because judge had discretion and considered age; authorization denied |
| Whether the sentencing court gave the requisite "special" consideration to youth under Miller | Kelly: Record shows only perfunctory mention of age; insufficient to show meaningful consideration or determination of incorrigibility | State: Sentencing judge explicitly identified age as mitigating and balanced it against aggravators | Denied: Majority found the judge adequately weighed aggravating and mitigating factors; dissent disagreed and urged full district-court review |
| Whether Kelly’s sentence is a mandatory life equivalent triggering Miller despite parole eligibility | Kelly: Length and parole timing make the sentence effectively life, triggering Miller protections | State: The statutory framework permitted varied sentencing and was not a mandatory life scheme | Denied: Court accepted that Miller applies to de facto life terms but found no Miller violation here because of judicial discretion and consideration of youth |
| Whether authorization to file a second or successive habeas petition should be granted | Kelly: Needs authorization to litigate Miller claim in district court and seek resentencing | State: No new claim because sentencing process already afforded Miller-type consideration | Denied: Authorization to file a successive petition was refused by the Seventh Circuit majority; dissent would grant authorization for evidentiary inquiry |
Key Cases Cited
- Miller v. Alabama, 567 U.S. 460 (2012) (mandatory life-without-parole for juveniles unconstitutional; requires special consideration of youth)
- Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (made Miller retroactive and clarified relief for juvenile offenders)
- Roper v. Simmons, 543 U.S. 551 (2005) (juveniles are constitutionally different in sentencing due to diminished culpability and greater capacity for reform)
- McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016) (recognizing Miller can apply to very long term-of-years sentences that are de facto life)
- Kelly v. State, 719 N.E.2d 391 (Ind. 1999) (state supreme court affirming Kelly’s sentence and the trial court’s balancing of aggravating and mitigating factors)