Lead Opinion
In 2001, а 16-year-old named Benard McKinley shot and killed a 23-year-old man, Abdo Serna-Ibarra, as he tried to enter a Chicago park. Both were with friends, and one of McKinley’s friends, a 15-year-old named Edward Chavera, may have handed McKinley the gun. Whether or not he did, he told McKinley to shoot Serna-Ibarra. McKinley obeyed, shooting him in the back, and when Serna-Ibarra turned around with his hands raised McKinley shot him again, killing him. Tried in an Illinois state court and convicted by a jury of first-degree murder, McKinley was sentenced to consecutive 50-year prison terms, one for the murder and one for the use of a firearm to commit it. See 730 ILCS 5/5-8-l(a)(l)(a), (a)(l)(d)(iii) (2004). With , no good-time credit or other chance of early release permitted to persons sentenced for first-degree murder in Illinois, McKinley will be imprisoned for the full 100 years unless, of course, he dies before the age of 116. See 730 ILCS 5/3-3-2, 5/3-6-3(a)(2)(i). His accomplice, Chavera, pleaded guilty to second-degree murder and was sentenсed to 17.5 years in prison.
After unsuccessfully seeking post-conviction relief in the Illinois court system, McKinley petitioned the federal district court in Chicago for a writ of habeas corpus, on the ground (so 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 McKinley’s petition, precipitating the appeal now before us.
To be allowed to press his claim in this court, however, hе had to have pressed it in the state judicial system first, § 2254(b)(1)(A), and have made clear that it was indeed a federal constitutional claim that he was pressing. Baldwin v. Reese,
Beginning in 2008 McKinley filed in Illinois courts a post-conviction petition, a petition for relief from judgment, and a motion for leave to file a successive post-conviction petition. Most of the claims in these filings had no possible merit, were properly rejected, and require no discussiоn. He did however make one possibly meritorious claim, challenging the sentence as a “cruel and unusual punishment under th[e] constitution of state and federal laws.” He had made a similar claim, without success, on direct appeal, describing the length of his sentence as excessive given his youth when he committed the murder, and thus as a violation of the Illinois Constitution’s Proportionate Penalties Clause (as Article 1, § 11 of the Illinois Constitution is known), which provides, so far as might relatе to this case, that “all penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
All the petitions were rejected — the 100-year sentence stood — and so McKinley turned to the federal district court, invoking the federal habeas corpus statute. But he had failed to argue to the state courts on direct appeal that his prison sentence violated the cruel and unusual punishments clause of the Eighth Amendment, which the Supreme Court has made applicable to the states by interpretation of the due process clause of the Fourteenth Amendment. By failing to alert the state court to the possible presence of a federal claim, McKinley has forfeited the right to seek federal habeas corpus on the ground that his sentence violated the Eighth Amendment, unless he can show that his failure to raise the claim in state cоurt had been excusable.
In arguing that it had been, he places great weight on Miller v. Alabama, — U.S. -,
The sentencing judge in this case didn’t do that. He said nothing to indicate that he considered the defendant’s youth -to have the slightest relevance to deciding how long to make the sentence. The only considerations he deemed relevant were that “the defendant had some type of juvenile adjudication for possession of [a] controlled substance, was in a [juvenile probation] program [that included counseling], аnd while in that program he committed this offense. I find that to be an aggravating factor,” and in fact “a serious aggra
The judge thus did not consider the Supreme Court’s “children are different” statement in Miller, or similar statements in earlier Supreme Court cases, notably Roper v. Simmons,
But it is such a long term оf 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 the petitioner 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 аnd 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,
The judge in this case failed to do that. He said nothing to indicate that he thought the defendant’s yоuth at all relevant to the sentence. He failed to mention that the defendant may not have been armed at the beginning of the mélée that resulted in the murder — the gun used in the murder may have been handed to him by a confederate, and whether it was or not, it is certain that the confederate ordered him to shoot Ser-na-Ibarra. The judge should have considered whether, in a situation of excitement,
But there are obstacles to our reversing the denial of habeas corpus on the ground that the judge failed to consider the defendant’s age. One is the failure of McKinley’s lawyer in the state-court proceedings to assert a federal constitutional claim. But McKinley might be able to overcome this obstacle because his “constitutional claim is so novel that its legal basis [Wa]s not reasonably available to counsel” at the time of the state court proceedings, for a subsequent Supreme Court decision (in this case, Miller) overturned “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Reed v. Ross,
But that excuse is available only if the new constitutional principle “is held to have retroactive applicatiоn,” id. at 17,
Recognizing the high bar that a procedural rule must surmount to be classified as “watershed,” this court has concluded that neither United States v. Booker,
To explain: the respondent (the warden) acknowledges that McKinley may have a remedy in state court because, as the warden tells us, “Illinois law allows a prisoner to file a successive post-conviction petition if he shows cause for, and prejudice from, failing to raise the claim in an initial post-conviction petition.” See 725 ILCS 5/122-1(f) (2015). In People v. Davis,
Particularly important is the statement in Davis that Miller “applies retroactively to cases on collateral review” under Illinois law. Id. at 720. Davis holds that Miller is retroactive because it changed substantive rather than procedural law, and so is not controlled by the requirement that a procedural rule must be a “watershed” rule if it is to apply retroactively. Id. at 722. Indeed, a state is not required to have such a requirement at all. And although the Illinois Supreme Court has adopted the “standards for detеrmining when a new constitutional rule would apply to federal habeas corpus actions pending in federal courts” to “collateral proceedings pursuant to the [Illinois] Posl^Conviction Hearing Act” as a matter of state law, id. at 720, a state court is not required, when applying state law, to interpret those standards the same way as federal courts do.
McKinley like Davis had no opportunity to invoke Miller either in his direct appeal or in any of his state post-conviction proceedings. He had been convicted and sentenced in 2004 and his conviction and sentence had been affirmed in 2007. He filed his post-conviction petition in 2008, and that proceeding ended in 2011 when the Illinois Supreme Court denied review. Miller was not decided until 2012. So the Illinois state courts have had no opportunity to consider the bearing of Miller on the appropriateness of reconsidering McKinley’s sentence. Miller speaks to the propriety of a life sentence for juveniles, and an Illinois court might wеll believe as do we that the sentencing judge in this case utterly failed to consider that “children are different.”
The state court might begin by reflecting on the considerations that should inform a decision on the length of a prison sentence. One is the need to prevent the defendant from committing crimes upon release; the likelier that he is to recidivate, the longer the appropriate sentence. Another pertinent consideration is the need to deter other potential criminals, who if rational will consider the length of the sentences being meted out to persons who commit crimes similar to the crimes these potential criminals commit or intend to commit; the longer the sentence, the greater the cost that the would-be criminals face. Last is the perceived need for long sentences for the most serious crimes, in order to assuage the indignation that such crimes arouse in the general public. But a defendant’s yоuth and immaturity may influence consideration of each of these factors, because children have diminished culpability, greater prospects for reform, and less ability to assess consequences than adults. See Miller v. Alabama, supra,
Murder is of course one of the most serious crimes, but murders vary in their gravity and in the information they reveal concerning the likelihood of recidivism by the murderer. In the case of a 16-year-old kid handed a gun by another kid and told to shoot a designated persоn with it, it is difficult to predict the likelihood of recidivism upon his release from prison or to assess the deterrent effect of imposing a long sentence on him, without additional information. A competent judicial analysis would require expert psychological analysis of the murderer and also of his milieu. Does he inhabit a community, a culture, in which murder is routine? Are other potential murderers likely to be warned off murder upon learning that a 16-year-old kid has been sentenced to life in prison, or are they more likely to think it a fluke? Is
Neither Miller — which obviously hаd no bearing on the original sentencing of McKinley since it hadn’t been decided yet — nor any of the questions raised in this opinion was addressed by the sentencing judge, who treated McKinley as if he were not 16 but 26 and as such obviously deserving of effectively a life sentence.
We therefore vacate the judgment of the district court and remand the case to that court with instructions to stay further consideration of McKinley’s habeas corpus claim pending his filing of a successive post-conviction petition in state court seeking resentencing on the basis of Miller and the concerns expressed in this opinion regarding the sentencing proceeding that resulted in a 100-year prison sentence for a 16-year-old.
So ORDERED
Dissenting Opinion
dissenting.
I agree with my colleagues that Mr. McKinley failed to raise his Eighth Amendment claim in state court. See Op. at 911. I disagree, however, that Miller v. Davis, — U.S. -,
In Miller, thе Supreme Court held that “mandatory life without parole for those under the age of 18 at the time of their, crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’ ”
The majority acknowledges Croft, but distinguishes it. According to the majority, Miller did something more than establish a rule that a juvenile cannot be sentenced to a mandatory life sentence; Miller also established thаt “children are different,” and, in sentencing them, state courts must acknowledge and give credence to this principle. Op. at 910-11. Our decision in Croft, they continue, “did not discuss the ‘children are different’ passage in Miller,” and, therefore, does not bind this panel. Op. at 911.
Even if I could accept this characterization of Croft, the “ ‘children are different’
Moreover, Roper was handed down during the pendency of Mr. McKinley’s direct appeal, and Graham was handed down during the pendency of Mr. McKinley’s first petition for post-conviction relief (and prior to filing his motion for leave to file a successive state post-conviction petition). Consequently, the principle that forms the basis of the majority’s decision to return Mr. McKinley to the state courts was available to him during his first, second and third attempts at state-court relief. Mr. McKinley simply fаiled to invoke that principle.
The majority believes, however, that returning Mr. McKinley to the courts of Illinois is appropriate because those courts “have had no opportunity to consider the bearing of Miller on the appropriateness of reconsidering McKinley’s sentence.” Op. at 915. My colleagues posit that the Illinois courts may be willing to entertain Mr. McKinley’s Eighth Amendment claim because, in People v. Davis,
As an initial matter, the Illinois courts have been deprived of this opportunity to consider the “children are different” argumеnt only because Mr. McKinley failed to present it, not because the argument was unavailable to him. Furthermore, Davis provides little basis for concluding that the Illinois courts will look charitably on Mr. McKinley’s late arguments. Davis concerned the sentencing of a juvenile defender to a mandatory sentence of natural life imprisonment. Davis,
The state supreme court, however, also noted the limitation of this substantive rule: “We observe that Miller does not invalidate the penalty of natural life without parole for multiple murderers, only its mandatory imposition on juveniles. A minor may still be sentenced to natural life imprisonment without parole so long as the sentence is at the trial court’s discretion rather than mandatory.” Id. at 723 (second emphasis added) (citation omitted). Therefore, even if there were no procedural impediments to rеturning Mr. McKinley to state court, nothing in Davis suggests that, once there, Mr. McKinley could obtain the relief he seeks.
Although not directly stating so, today the majority both recognizes a new constitutional right and holds that it is cognizable on habeas review: the right of a juvenile not only to have the trial court explicitly consider age as a mitigating factor in sentencing, but also to have the sentencing court consider specific information in that sentencing process. The majority also suрplies the contours for this right. “A competent judicial analysis,” my colleagues instruct, “would require expert psychological analysis” of both the juvenile offender and “his milieu.” Op. at 913 (emphasis added). Sociological considerations also must enter the sentencing court’s analysis; it must consider both whether “other potential murderers [are] likely to be warned off murder upon learning that a 16-year-old kid has been sentenced to life in prison” and whether it “matter[s] greatly” to them “whether а murderer such as McKinley is sentence to 20 years or 100 years.” Id. at 913-14.
The majority’s conception of sentencing for juvenile offenders may be a very salutary one. But it is not our prerogative to establish such standards on habeas review.
I therefore-respectfully dissent.
Notes
. See Roper v. Simmons,
. See Graham v. Florida,