Curtis Croft v. Tarry Williams

773 F.3d 170

7th Cir.

2014

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Docket

Curtis CROFT, Applicant, v. Tarry WILLIAMS, Respondent.

No. 14-3419.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 31, 2014. Nov. 25, 2014.

170

mony adversely affected [their] case.” See

Illinois Union Ins. Co. v. Heineman & Lovett, Inc., No. 88-1537, 1989 WL 99040, at *5 (6th Cir.1989) (unpublished). Nor have they offered any explanation as to how the same testimony supposedly confused and misled the jury. We thus decline to hold that Reich‘s testimony caused any unfair prejudice to Cipo and Kovach, and instead conclude that the probative value of his testimony was not substantially outweighed by the factors set forth in Rule 403.

III. CONCLUSION

For all of the reasons set forth above, we DECLINE to hear the appeal with respect to the qualified-immunity defense, the denial of the preverdict motion for judgment as a matter of law, and the challenge to the sufficiency of the evidence at trial because those arguments have been procedurally forfeited, and we otherwise AFFIRM the judgment of the district court.

Curtis Croft, Joliet, IL, pro se.

Michael M. Glick, Attorney, Office of the Attorney General, Chicago, IL, for Respondent.

Before WOOD, Chief Judge, and FLAUM and WILLIAMS, Circuit Judges.

WOOD, Chief Judge.

Curtis Croft has come to this court for a second time asking us to authorize him to pursue a successive petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that he has made a prima facie showing that he satisfies the requirements of 28 U.S.C. § 2244(b)(2)(A) for filing such an application. Croft relies primarily on the Supreme Court‘s decision in

Miller v. Alabama, — U.S. —, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the Eighth Amendment forbids sentences of mandatory life in prison without parole for juvenile offenders. Because he was seventeen when he committed mur- der, aggravated kidnapping, and aggravated sexual assault, Croft argues that his sentence of natural life imprisonment without parole for the murder is unconstitutional under Miller.

Croft acknowledges that he can prevail only if Miller, which was decided after Croft was sentenced, applies retroactively. He believes that he can surmount that hurdle. He points out, correctly, that the Supreme Court applied the holding of Miller in the companion case that was before the Court on post-conviction review. See

Miller, 132 S.Ct. at 2468-69. Our sister circuits are split on the retroactivity question. At least four courts of appeals have concluded that applicants similar to Croft have made prima facie showings that Miller is retroactive, and those courts have permitted the applicants to proceed with their successive petitions. See ; ; (per curiam); . In at least two of these cases, the court‘s decision to grant a motion authorizing a successive habeas corpus petition was based in part on the government‘s concession that Miller has retroactive effect. See ; . On the other side, two courts of appeals have concluded that Miller has no retroactive effect. See ; . The Eleventh Circuit‘s decision in Morgan produced three dissenting votes from the court‘s denial of rehearing en Banc, see ; in a dissenting opinion, Judge Wilson noted that the Department of Justice has promulgated “a uniform policy” that Miller is indeed retroactive on collateral review. See (Wilson, J., dissenting). And the Fifth Circuit muddied the waters when it decided, perhaps inconsistently with Craig, that the applicant had made a prima facie showing that Miller has retroactive effect but stated that it was not resolving the question definitively. .

Despite the robust debate occurring in the courts of appeals on this question (and in the state courts-Illinois has decided that Miller is retroactive,

People v. Davis, 379 Ill.Dec. 381, 6 N.E.3d 709 (Ill.2014), but Minnesota has gone the other way, ), we need not resolve the question here. The reason is simple: Miller is inapplicable to Croft‘s case. As the Appellate Court of Illinois noted in affirming the second-stage dismissal of Croft‘s petition for post-conviction relief, life sentences for murder are discretionary under Illinois law. This is a critical difference from the situation presented in Miller, which considered only “mandatory life-without-parole sentences for juveniles.” .

Croft recognizes the problem. He tries to avoid it with the argument that the sentencing court treated his life term as mandatory because it failed to address his age. Yet Croft does not explain why such an omission would transform his discretionary sentence into one that is mandatory. Moreover, as the state appellate court observed, the sentencing court explicitly stated that it had considered the presentence report in Croft‘s case. That report discussed his age. The appellate court also underscored the discretionary nature of Croft‘s sentence when it reviewed the ample justifications supporting it, including the fact that Croft‘s crimes were among the most brutal the court had ever seen. Thus, even if this court were to hold that Miller applies retroactively on collateral review, Croft would be unable to take advantage of it.

Accordingly, we DENY authorization and DISMISS Croft‘s application for permission to file a successive collateral attack.

WOOD

CHIEF JUDGE

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