Benard McKinley v. Kim Butler

McKINLEY, Benard Petitioner-

Appellant, BUTLER, Respondent-Appellee.

Kim

No. 14-1944. Appeals, States Court of

United

Seventh Circuit.

Argued Oct. 2015.

Decided Jan. back,

him in thе and when Serna-Ibarra turned around with his hands raised McKinley shot him again, killing him. Tried an Illinois state court and convict- murder, a jury first-degree ed of McKinley was sentenced to consecutive 50-year terms, prison one for the murder and one for the use of a firearm to commit 5/5-8-l(a)(l)(a), it. See 730 ILCS (a)(l)(d)(iii) (2004). , good-time With no credit or other early chance of release permitted persons sentenced for first- Illinois, degree McKinley murder in will be imprisoned unless, for the full of course, he dies before the of 116. See 5/3-6-3(a)(2)(i). 5/3-3-2, 730 ILCS His Chavera, accomplice, pleaded guilty to sec- ond-degree murder sentenced to years in prison. 17.5 unsuccessfully After seeking post-con- viction relief in system, the Illinois court McKinley petitioned the federal district Chicago court in for a of writ habeas cor- (so pus, ground far as relates to the present appeal) that his sentence violated the federal Constitution. See 28 U.S.C. 2254(a). § The district court denied Jackson, Buchanan William Steffen N. McKinley’s рetition, precipitating ap- Johnson, LLP, Winston & Strawn Wash- peal now before us. DC, ington, Petitioner-Appellant. To press be allowed to his claim in Kashyap, Attorney

Gopi Office court, however, he have IL, General, Chicago, Respondent-Ap- judicial first, pressed system the state pellee. 2254(b)(1)(A), § and have made clear that POSNER, RIPPLE, Before it was indeed a federal constitutional claim HAMILTON, Judges. Circuit Reese, pressing. that he was Baldwin v. 27, 32, U.S.

POSNER, Judge. Circuit (2004); Henry, Duncan 364, 365-66, 16-year-old named Benard U.S. (1995). McKinley 23-yеar-old requirement shot and killed a This man, Serna-Ibarra, designed Abdo as he tried to exhaustion is on the one hand to Chicago park. enter a Both were with the assistance of the state courts marshal friends, friends, McKinley’s enforcing and one of federal constitutional law and Chavera, 15-year-old named Edward on the other hand to diminish the burden McKinley gun. post-conviction handed Whether the federal ‍‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌​​‌​‌​‌‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌‍courts of did, McKinley proceedings by prisoners poten or not he he told to shoоt state —a obeyed, tially given McKinley shooting crushing Serna-Ibarra. burden the size population under- his failure to raise the claim state court had been tendency prisoners, especially excusable. standable sentences, serving long pepper those been, In arguing that it had he petitions. post-conviction the courts with Alabama, places great weight on Miller v. — U.S. -, 183 L.Ed.2d in Illi- in 2008 filed Beginning which held “that post-conviction petition, a nois courts sentencing Amendment forbids a scheme рetition judgment, for relief from and a prison that mandates life in without possi post- to file a successive motion for leave bility of offenders.” Id. petition. conviction Most of the claims sentencing 2469. But the Illinois merit, possible filings these had no were statutory provisions “scheme”—the cited rejected, require no properly discus- governing earlier sentences for murder possibly make one sion. He did however deadly and for use of a firearm —did not claim, challenging the sentence mеritorious that require McKinley be sentenced to life punishment as a “cruel and unusual under prison. He could have been sentenced of constitution state and federal th[e] years to as little as 20 for the plus claim, He made a similar with- laws.” firearm, years deadly for the use of a success, appeal, describing out on direct years. for a total of 45 See 730 ILCS 5/5— the of his sentence length as excessive 8At(a) (2004) (requiring sentencing the given youth his when he committed the judge impose consecutive if .to murder, and thus as a violation of the “one of the offenses for which defendant Proportionate Illinois Constitution’s Penal- murder”). degree was convicted was first (as 1, § ties Clause Article 11 of the Illi- There is more to however. The known), nois pro- Constitution is which Supreme that in deciding Court said on a vides, case, might so far as relate to this (remember sentence for a minor that penalties that “all shall be determined both only was 16 when he committed according to the of seriousness thе offense murder) require sentencing “we [the objective restoring and with the of judge] to take into account how children citizenship.” offender to useful different, are and how. those differences against irrevocably counsel sentencing rejected All the petitions were —the prison.” them to a lifetime in Miller v. 100-year sentence stood—and so McKin Alabama, (foot supra, 132 S.Ct. at 2469 court, ley turned to the federal district omitted). note invoking corpus the federal habeas statute. argue But hе had failed to sentencing judge the state in this case didn’t courts on direct that nothing his do that. He said to indicate that sentence violated the cruel youth and unusual he considered the defendant’s -to punishments Eighth clause of the Amend slightest deciding relevance to ment, which long Court has made how to make the sentence. The applicable to the interpretation states considerations he deemed relevant were process of the due clause of the Four that tyрe juve- “the defendant had some of By failing adjudication teenth Amendment. to alert possession nile of [a] con- substance, possible presence state court to the [juvenile proba- trolled was in a claim, McKinley federal has forfeited the program counseling], included tion] [that right to seek federal habeas and while in that program he committed ground that his sentence violated the I aggrava- offense. find that to be an Amendment, factor,” unless he can show ting aggra- fаct “a serious life, emphasized stripping He further ment for thus vating factor.” provocation judge any no for the impose that there had been discretion to a shorter rejected suggestion He in light particulars murder. sentence of the criminal conduct was “the defendant’s defendant and his crime. But the “chil recur,” unlikely of circumstances result dren passage are different” that we quoted “historically ... con- his explaining earlier from v. Alabama log Miller cannot period probation indicated that the duct ically sentences, jure be limited to de given monitoring that he and the was as distinct from sentences denominated in Court, given through Juvenile real- he was number yet highly likely to result scenario, in- ly your like first chance in imprisonment for life. Cf. Moore v. the defendant from sufficient to deter Biter, 1191-92 Cir. short, offense.” committing another 2013). The relevance to sentencing of aggravation “multiple apply” factors “children are different” also in logic cannot 100-year “necessаry sentence was depend legislature on whether has committing to deter others from the same made the life discretionary sentence or crime.” mandatory; even discretionary life sen tences guided by must be consideration of not judge

The thus did consider the See, age-relevant factors. e.g., People v. Supreme Court’s “children are different” Gutierrez, 1354, 171 Cal.Rptr.3d Cal.4th or similar statement statements 421, 245, (2014); 324 P.3d 267-69 Ex Parte cases, notably earlier Court Henderson, 1262, 1280, 144 So.3d 1283-84 Simmons, 551, v. 543 U.S. 125 S.Ct. Roper (Ala.2013). Although our сourt said in 1183, (2005), 161 L.Ed.2d where the Williams, v. Croft psychological Court had marshaled evi- Cir.2014), inapplicable that Miller is even in support dence of its conclusion that to to a defendant sentenced to life without penalty on a impose the death minor was a parole provided that the legislature does Amendment. per se violation require not such a sentence but leaves ‍‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌​​‌​‌​‌‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌‍the (Neither 569-75, at Id. S.Ct. 1183. sentencing judge, matter to the the court just the cases we cited had been decided did nоt discuss the “children are different” 2004.) when was sentenced in passage implies in Miller. That passage present The of course does not in- case always that the court must con penalty. volve the death And as noted we deciding sider the of the defendant in earlier, involving neither is it a case (within limits) statutory what sentence mandatory prison. sentence of life in The juvenile. to on a impose judge exercised his discretion in sentenc- ing McKinley years, to a term of rather judge The in this cаse failed to do that. than to life. thought to nothing He said indicate he long years youth

But it is such a term of at all relevant to the defendant’s (especially given unavailability early sentence. He failed to mention that the release) may as to be—unless there is a radical defendant not have been armed at the increase, unforeseeable, present beginning in lon of the mélée that resulted in the gun in the gevity within the next 100 de murder —the used —a sentence, confederate, logic beеn handed to him a and so facto (the not, applies. respondent Miller The war and whether it was or it is certain that him petitioner den of the in which the the confederate ordered to shoot Ser- held) judge should have consid- wants to limit Miller to cases na-Ibarra. whether, excitement, in a legislature imprison- which the decrees ered situation can said to be “watersheds” maturity to consider be McKinley had order, law, see, Bockting, 549 e.g., or Whorton v. his confederate’s obey to whether 416-20, from 127 S.Ct. by the circumstances U.S. prevented (2007) whether once has the decision about making a rational —and the rule of found a watershed: Gid- obey. Court Wainwright, 372 eon v. U.S. reversing to our But there are obstacles (1963), 792, 9 L.Ed.2d 799 that the defen- ground of habeas the denial in a criminal case has a constitutional dant failed to consider the defen judge that the by counsel. right representation is the failure of McKin age. dant’s One proceedings in the state-court ley’s lawyer high proce bar that a Recognizing the claim. a federal constitutional to assert to be classified dural rule must surmount McKinley might be able to overcome But “watershed,” this court has concluded as “constitutional because his this obstacle Booker, that neither United States legal that its basis [Wa]s claim is so novel 220, 125 S.Ct. 160 L.Ed.2d 621 U.S. at the reasonably available to counsel” not (2005), Sentencing which made the Guide for a proceedings, the state court time of Alleyne nor discretionary, lines United (in — decision subsequent Suprеme Court States, U.S. -, Miller) case, longstand overturned “a required which practice to which this ing widespread mandatory minimum sen affecting facts which a near- spoken, has not but jury beyond a rea proved tences be authority body unanimous of lower court doubt, retroactive, McReynolds ‍‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌​​‌​‌​‌‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌‍is sonable Ross, expressly approved.” Reed v. has States, 397 F.3d 479 Cir. v. United 16-17, 2901, 468 U.S. States, 2005); v. Crayton United (1984) (quotations and citations (7th Cir.2015), though very both were omitted). But even in the un important decisions. likely requiring that Miller’s rule event available if But that excuse is judges to consider how “children are dif principle “is held to the new constitutional were to be deemed a “watershed” ferent” application,” id. at have retroactive law, McKinley’s claim rule under federal and that is a further obstacle prema fail in it would our court because is McKinley. Supreme The Court has been ture. prison inmates to base reluctant to allow (the warden) explain: respondent on convictions or To the collateral attacks their acknowledges McKinley may have applica sentences on claims to retroactive because, war principles. remedy in state court as the tion of federal constitutional us, prison prisoner than a million in den tells “Illinois law allows There are more States, every post-conviction petition to file a successive mates in the United and time for, from, Court, court, prejudice if he shows cause Supreme the or even lower failing рost- to raise the claim in an initial a decision that makes criminal renders law, petition.” See 725 ILCS procedural, substantive or conviction whether 5/122- 1(f) (2015). Davis, Ill. defendants, People prisoners more favorable to the Dec. 6 N.E.3d application retroactive decision. seek found that the de Supreme be overwhelmed Illinois Court The federal courts could preju limit. this cause and permitted without This fendant satisfied were claim because Mil dice test for his Miller Supreme concern has led the Court unavailable to him either on application procedur ler had been confine retroactive post-convic- or in his initial criminal law to doctrines direct al doctrines of might begin by The state court re court held proceedings, tion the considerations that flecting enforced should law it could be Illinois under length inform a decision on the of a collateral review. retroactively on prevent is the need to petitioner the sentence. One the gives thus Davis decision committing upon for defendant from crimes an available avenue present case the release; the likelier that he is to recidi claim. court for his relief state vate, longer appropriate the sentence. is the statement Particularly important pertinent Another consideration is the “applies that Miller in Davis criminals, potential need to deter other Illinois collateral review” under to cases on length who if rationаl will consider the that Miller at 720. Davis holds law. Id. being persons meted out to changed substan- is retroactive because commit crimes similar to the crimes who law, and so procedural tive rather than commit potential these criminals or intend requirement not controlled commit; sentence, longer be a “watershed” rule must procedural greater the cost that the would-be crimi retroactively. Id. at apply if it is to rule perceived nals face. Last is the need for Indeed, required to a state is not for the most serious long sentences al- at all. And requirement have such a crimes, assuage indignation in order to has the Illinois though general that such crimes arouse in the determining adopted the “standards youth im public. But a defendant’s apply rule would a new constitutional when maturity may influence consideration of pending habeas actions to federal factors, because children each these proceedings courts” to “collateral fedеral culpability, greater pros diminished to the Posl^Conviction pursuant [Illinois] reform, pects ability and less to assess law, id. Hearing Act” as a matter of state consequences than adults. See Miller required, when at a state court is not Alabama, supra, 132 S.Ct. 2464-65. law, to those stan- applying interpret way as federal courts do. dards the same of the most Murder is of course one crimes, vary in their serious but murders McKinley opportunity like Davis had no they and in the information reveal gravity in his direct to invoke Miller either by concerning the likelihood of recidivism any pro- in of his state post-conviction or 16-year- In case of a the murderer. ceedings. He had been convicted and sen- another kid and gun by kid handed a in conviction and sen- old tenced 2004 and his it, it designated person a with in He filed told to shoot had been affirmed 2007. tence of re- predict to the likelihood in is difficult post-conviction petition his from or to upon in cidivism his release proceeding ended 2011 when imposing оf a the deterrent effect denied review. assess Supreme Illinois Court him, additional long sentence on without until 2012. So the Miller was not decided analysis competent judicial A opportuni- information. state courts have had no Illinois analy- require expert psychological bearing of Miller on the would ty to consider the and also of his milieu. McKin- sis of the murderer appropriateness reconsidering culture, in community, a a pro- Does he inhabit ley’s speaks sentence. Miller tо po- routine? Are other juveniles, and which murder is priety of a life sentence for likely to be warned off tential murderers might an court well believe as do Illinois learning 16-year-old upon sentencing judge in this case we that the prison, life in or been sentenced to that “children are kid has utterly failed to consider it a fluke? Is they likely to think are more different.” major 100-year prison factor sulted a sentence for a length of a sentence 16-year-old. that criminals tend to deterrence? Given (cid:127) rates, meaning that high discount So ORDERED very lightly, they weight future events far as greatly, does it matter so deterrence RIPPLE, Judge, dissenting. Circuit concerned, whether murderer such as agree my colleagues I with that Mr. McKinley pris- is sentenced to 20 McKinley Eighth failed to his raise years? And here is where Mil- or Amendment claim in court. Op. See forbid, a role. It does not but it plays ler however, I disagree, that Miller v. concerning, life expresses great skepticism — Davis, U.S. -, 132 S.Ct. murderers. Its cat- sentences (2012), provides L.Ed.2d 407 basis egorical ban is limited to life sentences McKinley, relief for Mr. that Miller excus mandatory by legislatures, made but its default, es his and that Mr. concern that courts should consider in sen- opportunity should have the to return to tencing that “children are different” ex- pursue post- the Illinois courts to a third discretionary life tends de petition conviction for relief. sentences, life as in this case. A facto Miller, Supreme Court held straw in the wind is that “mandatory life without for those vacated, for further considerаtion their, under the of 18 at the time of light upholding three decisions crimes violates the Amendment’s ju- sentencing as an exercise of discretion prohibition punish on ‘cruel and unusual in prison veniles’ sentences life with no ” Although ments.’ 132 S.Ct. at 2460. we possibility parole: Blackwell Califor — question have not answered the whether nia, , U.S. - applied Miller should be (2013); L.Ed.2d 646 Mauricio v. Califor — review, eases on collateral we held in nia, , U.S. Croft Williams, Cir. (2013); California, Guillen v. — 2014), that, in McKinley’s cases like Mr. U.S. -, where the defendant to a (2012). was sentenced sentence, discretionary inap “Miller is obviously Neither Miller —which had no plicable.” bearing original sentencing majority acknowledges Croft, McKinley since it but hadn’t been decided distinguishes yet any According majori- it. to the questions raised in this —nor ty, something Miller did more than es- opinion was addressed juvenile tablish a rule that a judge, who if cannot be treated as he were sentence; mandatory sentenced to a life obviously not 16 but 26 and as such de- Miller also serving effectively estаblished that “children are a life sentence. different,” and, them, in sentencing state therefore vacate judgment We the acknowledge give courts must and cre- district court and remand the case to that principle. Op. dence to this at 910-11. court stay with instructions to further con- continue, Croft, they Our decision in “did McKinley’s sideration of habeas not discuss the ‘children are different’ claim pending filing his of a successive Miller,” therefore, and, in passage does post-conviction in petitiоn state court seek- panel. Op. not bind at 911. ing resentencing on the basis of Miller and expressed the concerns in this if I opinion accept re- Even could this characteriza- “ garding sentencing proceeding Croft, the tion re- the ‘children are different’ willing Illinois courts be to entertain provide not in Miller” does passage McKinley to the McKinley’s Eighth Mr. Mr. Amendment claim returning basis for majority Davis, the acknowl because, courts. As People state in v. 379 Ill.Dec. state “children are different” edges, 709, the 381, 6 N.E.3d “the Illinois “in earlier parallels in has ment Miller Supreme Court found Davis satis- cases, notably Roper Supreme Court prejudice cause and test for his fied this 1183, Simmons, 551, 12 S.Ct. 543 U.S. claim because Miller was unavail- Miller 911, (2005),”1 and Op. able to either on direct or [Davis] Florida, 560 U.S. also Graham proceedings, initial post-conviction his (2010).2 L.Ed.2d 825 Illinois law it the court held that under different,” therefore, is not a are “Children enforced on collater- could be procedur substantive or new rule —either majority Oр. al review.” at 913. The McKinley’s Mr. failure justifies al—that “[particularly in Davis finds one remark claim the his Amendment raise important”: “that Miller is ‍‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌​​‌​‌​‌‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌‍retroactive be- state courts. rather than changed cause substantive Moreover, handed down dur- Roper was procedural law.” Id. at 913. McKinley’s direct of Mr. ing pendency matter, courts As an initial the Illinois was handed down appeal, and Graham deprived opportunity have been of this McKinley’s of Mr. during pendency argu “children are different” consider thе (and relief petition post-conviction first McKinley failed to ment because Mr. motion for leave to file filing his prior it, argument was present not because the petition). post-conviction successive Furthermore, to him. Davis unavailable that forms the principle Consequently, concluding that the provides little basis for to return majority’s decision basis of charitably Mr. courts look Illinois will McKinley to the state courts Mr. first, arguments. Davis con McKinley’s late during his second available to him juvenilе defend at state-court relief. of a attempts third cerned McKinley simply failed to invoke of natural life mandatory Mr. sentence er to Davis, principle. at 714 6 N.E.3d imprisonment. (“Because guilty of was found defendant believes, however, that re- majority victim, more than one section murdering McKinley to the courts of turning Mr. (a)(1)(c) trial court required ... 5 — 8—1 because those courts appropriate Illinois is a term of natural defendant to to sentence to consider the opportunity hаd no “have is not for which imprisonment, bearing appropriateness of Miller on the ” added)). (emphasis Con available.... McKinley’s sentence.” reconsidering fell within cluding that the defendant posit that the My colleagues at 915. Op. Florida, Simmons, 560 U.S. Graham v. 569- 2. See Roper v. 543 U.S. 1. See 2011, 2026, 2030, (2005) 176 L.Ed.2d (2010) “Roper "[tjhree (explaining that established (discussing general differences be culpabili- juveniles have lessened that because juveniles and adults” which under 18 tween deserving they of the most severe ty are less suspеct any conclusion "render concluding "the limit- punishments” that among and con the worst offenders” falls '[tjhe juvenile offend- culpability nonhomicide juve ed cluding differences between that parole severity of life without ers[] marked and adult offenders are too nile and all lead to the conclusion allowing youthful risk a well understood to is sentencing practice under consideration despite penalty person receive the death to unusual”). cruel culpability’). insufficient of Illi- сiological rule of considerations also must enter on conclude that Miller sentencing nois went to court’s analysis; it must it apply should because potential consider both whether “other “places particular persons class of cov- likely murderers to [are] be warned off -juveniles—constitu- ered upon learning 16-year-old statute — tionally beyond power punish the State’s kid has been sentenced in prison” to life category punishment— with particular it greatly” and whether “mаtter[s] mandatory sentences of natural life with- them “whether murderer such as parole.” out at 722. Id. Because this new McKinley is sentence to 20 or 100 substantive, continued, rule was the court years.” Id. 913-14. it “constitutes ‘cause’ because was not majority’s conception The sentencing available earlier to counsel and constitutes juvenile may a very offenders be salu- prejudice retroactively applies because it tary one. But it not prerogative is our sentencing heаring.” to defendant’s Id. establish such standards on habeas review. (citation omitted). I therefore-respectfully dissent. court, however,

The supreme also noted the limitation of this substantive

rule: “We observe Miller does not penalty

invalidate the of natural life with- murderers,

out parole multiple only its

mandatory imposition juveniles. A mi-

nor still be sentenced to natural

imprisonment without long so as

the sentence is at the trial court’s discre- EQUAL EMPLOYMENT OPPOR mandatory.” tion rather than Id. at 723 COMMISSION, TUNITY (second (citation added) omitted). emphasis Plaintiff-Appellant, Therefore, even if there no procedur- were impediments al to returning McKinley Mr. court, nothing AUTOZONE, to state suggests INCORPORATED, Davis et that, there, al., once Defendants-Appеllees. Mr. could ob- tain the relief he seeks. No. 15-1753. so, Although directly not stating today United Appeals, States Court of majority recognizes both a new con- Seventh Circuit. right stitutional and holds that it cog- nizable on right habeas review: of a Argued Sept. 2015. juvenile not to have the trial court Decided Jan. explicitly consider a mitigating as factor in sentencing, but also to have the specific court consider infor-

mation in sentencing process.

majority supplies also the contours for ‍‌​‌‌‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌​​‌​​‌​‌​‌‌​​‌​‌‌​‌‌‌‌‌‌‌‌‌‍right. competent judicial “A analy-

sis,” instruct, my colleagues “would re-

quire expert psychological analysis” of

both the offender and “his mi- added).

lieu.” Op. at 913 (emphasis So-

Case Details

Case Name: Benard McKinley v. Kim Butler

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 4, 2016

Citation: 809 F.3d 908

Docket Number: 14-1944

Court Abbreviation: 7th Cir.