Maxwell, Ex Parte Terrell

ports did that We need not jury position. the not believe either Perhaps pleading. condemn artful separate nor condone wrongful two there were acts; they could have believed criminal judg- I therefore concur the Court’s robbery and the aggravated that both holding appellant ment and its has single with act were committed assault double-jeopardy failed establish a viola- gun his at Mr. Shahid pointing of appellant tion. four But it was shooting times. then to either raise his dou- burden appellant’s in the trial court and issue

ble-jeopardy spe- with a formally litigate issue thus or else establish that the jury cial issue jury clearly shows could record single criminal found a act. only have “[mjore that a notes trou- The State MAXWELL, Ex parte Terrell appeals is that court of bling” issue Applicant. artful pleading accuse de-

seemed to No. AP-76964. double-jeopardy avoid a issue. signed to of appeals justified It that the court says Appeals Court of of Texas. Criminal appellant’s conviction because reversal March charge ‘could have’ chosen to “the State differently, which case dou- the offense certainly would be violated.”5 jeopardy

ble Indeed, statutory pleading one version aggravated-assault pur- statute for poses robbery count and the other of the

statutory aggravated version of assault for count does raise a whiff of assault clever half’ in being avoiding “too But, violation.6 double-jeopardy from stoutly main- very beginning, the State has that there were two crimes separate tained sup- committed here. And evidence State, (citing punished multiple State's Brief at tute threats that can be Garfias (Tex.App.-Fort 381 S.W.3d 2012)). Worth any published separately? I am unaware of cases have from this Court that addressed the question. involving In its a case Denton, parte 6. See 546- Ex S.W.3d prosecution aggravated of both an rob- (aggravated (Tex.Crim.App.2013) assault assault, bery aggravated and an the Second aggravated offense was a lesser-included Appeals suggested Court of that multiple has thus, and, robbery, convictions for both against assaults the same victim in the same regard with to the same victim in the crimes transaction can constitute one offense. incident were in violation same of defendant’s Although necessarily agree I do not with all of protections, double-jeopardy when assault reasoning opinion, in the Second Court's I by proof of was established the same or less agree implication legislature with the that the required than all the facts to establish the contemplate separately punishing did not (Keller, robbery); concurring) id. at 556 P.J. multiple against the same ("So, assaults victim in gunshots occurring can two in the same transaction.”) (footnote omitted). the same separate transaction constitute with assaults respect they victim? to the same Do consti- Evans, Austin, TX, Applicant. Jon Stewart, Lisa Assistant District Attor- McMinn, ney, Attorney, Lisa C. State’s Austin, TX, for the State.

OPINION

COCHRAN, J., the opinion delivered MEYERS, PRICE, in which the Court JJ„ ALCALA, joined. JOHNSON and application In his for a writ of habeas claims that his mandato- corpus, applicant ry imprisonment sentence of life without parole, a crime he juvenile, committed as a violates the Eighth and Fourteenth Amendments to States Constitution under Mil- United case, ler v. In that Alabama.1 Su- mandatory that a “life preme Court held parole” sentence for a defendant age who of 18 at the time of was under violates the Amendment’s his crime punish- cruel and unusual prohibition on imposed, Applicant’s ment. sentence ap- and his conviction affirmed on direct announced peal, before the its decision Miller. We ordered that - U.S. -, got trio then out of the car and to decide if be filed and set application this Santander, Fernando who was approached retroactively to applies v. Alabama Applicant in a van. held his sitting parked proceed- post-conviction in a a claim raised cheek and demand- gun to Mr. Santander’s so, and, remedy appropri- if what ing, money.” Visibly him his “give ed that he find that the Miller ate.2 Because scared, his hands “put up Mr. Santander a new substantive rule court announced Dukes, According of shock.” out exception, we hold Teague under the first “[Tjhat’s shot him.” Im- [applicant] when retroactively. grant willWe applies that it thereafter, mediately applicant and his ac- relief, sentencing for further remand and at the same complices running “all took off with Miller v. not inconsistent proceedings car They returned to Jamerson’s time.” Alabama. away. Applicant told the others and drove to do it” and that “it that “he didn’t mean I. body an accident.” Mr. Santander’s was applicant of the offense juryA convicted early next by friends was discovered jury The heard evi- murder. capital con- morning, slumped across center 15, that, of December night on the dence jacket frag- of the van. A .44 caliber sole along 17-year-old applicant, with parking ment was recovered from the lot Jamerson, and Michael Rashad Dukes van. A “tipster” near the led officers to “smoking watching were weed and movies” suspects. the three Dukes and Jamerson suggested robbing some- applicant when against applicant in confessed and testified had & revolver that was body. Applicant capital his murder trial. “pearl white han- except “all black” was 17 at the time he applicant Because cowboy-looking gun.” dle”—“kind of murder, the State did not committed the to an They apart- car drove Jamerson’s the death and penalty, seek “because that complex ment chosen automatically impris- assessed at life was dope dealers and Mexicans

where the parole.3 without the onment they complex, at the were.” When arrived Appeals rejected appli- Third for several minutes. they sat in the car that his automatic sentence cant’s claim that he would shoot announced Applicant Eighth Amendment because violated if they person robbed did person he had never raised that claim the trial conviction sen- money. them court.4 It affirmed his give Code; Maxwell, AP-76964, 54.02, Family parte No. 2013 WL trict court under Section Ex 2013) (not (2) (Tex.Crim.App. *1 Feb. parole. or life without Penal Tex. Code Applicant designated publication). 12.31(a)- raised 12.31(a) (2009-2011). § Section application, writ several other issues his response provides amended to Miller—now including counsel ineffective assistance of adjudged guilty cap- individual of a that ''[a]n matters, evidentiary but we summari various felony in a case in which the state does ital ly deny those claims. penalty punished death shall be not seek the Department imprisonment in the Texas 19.03(a)(2) 12.31(a) §§ & 3. Tex. Penal Code (1) life, if the individual Criminal Justice for: adjudged an individual Until younger when committed the offense than 18 guilty felony capital of a in a case in which (2) years age; parole, or life without if the penalty did not seek the death was State committed the offense when 18 individual 12.31(a) punished by § life. Tex. Penal Code years age or older.” Penal (2003). From 2005 to Tex. Code such an individ- 12.31(a) (2013). § parole. punished ual was life without Tex. 12.31(a) (2005-2007). § From Penal Code State, 03-09-00027-CR, life, No. 4. Maxwell if the 2009 to sentence (Tex.App.-Austin 2010 WL *9 Nov. individual’s case was transferred to the dis- chronological age and its hallmark fea- in 2010.5 tence them, among immaturity, impe-

tures — tuosity, appreciate and failure to risks II. consequences. prevents taking It Miller v. Alabama. A. family into account the and home envi- applicant’s after con- ronment that surrounds him—and from On June final, the States Su- viction became United usually which he cannot extricate him- “the preme held dysfunc- self—no matter how brutal forbids a scheme Amendment neglects tional. It the circumstances of possi- life in that mandates offense, the ex- including the homicide juvenile for offenders.”6 bility tent of his in the conduct participation issue, consolidat- deciding In way peer pressures and the familial and Miller, an Alabama case on ed two cases: Indeed, may ig- have affected him. it Hobbs, an appeal, direct and Jackson v. might charged nores that he have been on collateral review. Both Arkansas case and convicted of a lesser offense if not 14-year-old boys convicted cases involved incompetencies associated with and sentenced to first-degree murder youth-for example, inability his to deal mandatory parole.7 without prison life (in- with police prosecutors officers or “[b]y making youth The Court held that cluding agreement) on a or plea his inca- (and it) accompanies all that irrelevant pacity attorneys. to assist his own And sen- imposition of that harshest finally, mandatory punishment this dis- tence, a poses great such a scheme too risk regards of rehabilitation disproportionate punishment.”8 It stat- sug- even when the circumstances most determining ed that those the sentence of gest it.10 juvenile a must take into account the of- option The Court did not foreclose the of a “age and the wealth of character- fender’s “life parole” juvenile sentence for istics and circumstances attendant to it.”9 murderers, the sen- requires but Miller mandatory parole” a “life without Under scheme, tencer to consider “how children are differ- the factfinder cannot ent, and how juvenile’s consider a those differences counsel 12, 2010, (not ref’d) designated put pet. publi- he tried to the wallet back in Cannon's cation). pocket. up grabbed Cannon woke by the throat. Smith beat Cannon with a Id. go baseball bat to make him let who grabbed repeatedly then the bat and struck Alabama, - U.S. -, 6. Miller v. boys Cannon with it. The then retreated to L.Ed.2d trailer, they Miller’s but soon returned to Can- case, In the Kunt- 7. See id. at 2460. Arkansas up non’s trailer and lit two fires to cover boys, other one armed rell Jackson and two eventually evidence of their crime. Cannon sleeve, shotgun in with a sawed-off his coat injuries and died from his smoke inhalation. threat- robbed a video store. When the clerk Id. at 2462. police, ened to call the one of Jackson’s ac- boys complices and killed her. The three shot Id. at 2469. empty-handed. fled Id. at 2461. In the Ala- case, Colby bama Evan Miller and his friend Id. at 2467. drinking marijuana played Smith smoked Cannon, neighbor, games with a until Cole (citations omitted). Id. at 2468 wallet, passed Cannon out. Miller stole his friend, splitting $300 about with his but when (1) them to if rule or is a irrevocably sentencing a is substantive

against rule procedure.13 “watershed” of criminal Therefore, “ap- prison.”11 lifetime in sentencing juve- occasions for propriate New rules “apply substantive penalty will possible this harshest niles to ‘necessarily retroactively they because car uncommon,” difficult because is be ry significant that a defendant risk juvenile distinguish “between the offender convicted of an the law stands act ’ pun make yet tran- does not criminal crime reflects unfortunate whose faces impose upon ishment that the law cannot immaturity, the rare sient ” him because of his status or offense.14 irreparable whose crime reflects offender rules of Watershed criminal also corruption.” retroactively im apply those rules “the accu plicate fundamental fairness and Retroactivity Teague under v. Lane. B. racy of the criminal But a proceeding.”15 Teague the Su progeny, and its procedural be new “watershed” rule “must laid preme out the framework to which one ‘without likelihood of an whether “new rule” announced in decide conviction seriously accurate diminish opinions applied extremely of its should be retro ed.’ This class of is nar one rules row,” any and it is more new unlikely that to convictions that actively criminal were emerge.16 ones will already final on review. direct Under the framework, Teague applies a “new rule” Although Supreme the United States retroactively in proceeding a collateral held in that Court v. Minnesota17 Danforth (citations omitted). 11. Id. at 2469. Id. the Louisiana Su- As Tate, preme Court stated 130 So.3d in State v. omitted). (quotations 12. Id. marks (La.2013), exception the 829 for "watershed” rules of criminal 406, 416, Bockting, v. 13. Whorton 549 U.S. narrow,” 1173, extremely (2007). “is and since its deci- 127 S.Ct. 167 L.Ed.2d 1 Teague, sion in the Court has “re- Summerlin, 348, 351, v. Schriro 542 U.S. jected every claim that a new rule satisfied 352, 2519, 159 L.Ed.2d 442 requirements In for watershed status.” added) (emphasis (quoting Bousley v. United fact, unlikely the Court indicated "it is has States, 620, 1604, 614, 523 U.S. 140 " any” 'yet watershed rules have to (1998)). L.Ed.2d 828 ” emerge.' only satisfy case ever to this Parks, 484, 495, high Wainwright, 494 U.S. 110 is threshold Gideon v. 372 Saffte (1990). S.Ct. U.S. 83 L.Ed.2d 799 S.Ct. 9 (1963) which in "held that coun- Summerlin, 16. Schriro v. appointed any indigent sel must be de- (2004) (quot- 124 442 S.Ct. charged felony” fendant with a 1257). ing Saffle, 494 U.S. at "[wjhen rep- a defendant who wishes to be Summerlin, explained that new representa- resented denied counsel is procedural rules tion, held, Gideon the risk an unreliable of produce persons do not a class convicted intolerably high. verdict is The new rule criminal, of conduct law does not make announced eliminated this risk.” Gideon merely but raise some- Therefore, enough it is not that a new rule one convicted with use of the invalidated trial, improving accuracy is aimed at procedure might acquitted other- have been promotes objectives or even that it speculative wise. Because this more accuracy; and fairness the rule must insti- innocence, give connection to retroac- " procedures implicit concept tute in the tive effect to set of 'water- a small liberty excep- ordered come within this procedure' implicat- shed rules of criminal ing accuracy tion. the fundamental fairness and (citations omitted). proceeding.” of the criminal Id. at 840

71 have all held that Miller is not Teague not utilize the state courts need state courts First, However, Second, Teague as a rule, retroactive.20 retroactivity we follow Fourth, Third, and have Circuits practice,18 matter of state habeas general applicants successfully held that habeas precedent not deviate from our and we will a prima case-that Miller made out instance. this facie retroactive, they granted and have motions corpus petitions to file successive habeas III. raising Miller claims.21 The Fifth Circuit Federal and state courts across split baby: panel far One has so has country struggled have with the issue prima that Miller showing found a facie retroactively whether applies retroactivity; satisfies the test for another Nebraska, Massachusetts, For exam- proceedings.19 has not.22 The post-conviction Iowa, courts, and the Louisi- Mississippi high the Eleventh Circuit as well ple, courts, ana, Minnesota Su- as several lower state and federal Pennsylvania, Miller is retroactive.23 Courts, lower federal and have also held and some preme No.-13-40718, 264, 280-81, Simpson, Fed. In re 17. 552 U.S. S.Ct. (5th Appx. L.Ed.2d 859 2014 WL 494816 Cir. Feb. 2014) curiam) ("[W]e (per find that the Su- Reyes, Parte De Los 392 S.W.3d 18. Ex preme pro- Court’s actions Miller (Tex.Crim.App.2013). posture satisfy cedural of Miller itself Simpson's prima burden make facie ("By our 19. See 132 S.Ct. at 2471 showing petition that his rests on a new rule count, (28 jurisdictions and the Fed- States by law made retroactive Government) life-without-parole make a eral (not review.") designated on collateral mandatory juveniles term for some convicted Cain, 12-30035, publication); Craig for v. No. court.”). in adult A considerable of murder 4, (5th 2013) (per 2013 WL 69128 Cir. Jan. jurisdictions weighed have number of those curiam) ("Miller satisfy does not the test for issue, retroactivity on the but no consensus retroactivity categorically because it does not emerged. has imprisonment bar all sentences of life for (11th Morgan, 713 F.3d Cir. (not In re 1365 juveniles”) designated publication). for 5653447, 2013); Symmes, WL Martin v. 2013 , Tate, (D.Minn.2013); *16 State v. 130 So.3d Mantich, 23. State v. 287 Neb. 842 320 829, (La.2013); 836-42 Commonwealth v. (2014); N.W.2d 716 Diatchenko v. District 1, (Pa.2013); Cunningham, 11 Cham 81 A.3d Dist., 655, Attorney 466 1 Mass. Suffolk for State, 311, (Minn. v. 831 331 bers N.W.2d (2013); Ragland, N.E.3d 270 State v. 836 472, 2013); People Carp, Mich.App. v. 828 298 107, (Iowa 2013); N.W.2d 114-17 Jones v. 685, (2012, pet. granted); 711-14 N.W.2d 698, State, (Miss.2013); Alejan 122 So.3d 703 375, State, (Fla.Dist.Ct. Geter v. 115 So.3d 385 States, WL dro v. United 2013 *1 App.2012). (S.D.N.Y.2013)(“Because Miller a announced rule of constitutional law that is substan new Pendleton, (3d re 732 F.3d 282-83 In procedural, tive rather than that new rule Cir.2013) curiam) ("After (per brief- extensive applied retroactively must be on collateral ing argument, that Peti- and oral we conclude review.”; "Having by been authorized prima showing tioners have made a facie adjudicate Alejandro's Second Circuit to lat so, doing join Miller is retroactive. In motion, apply §est 2255 the Court must See, appeals. several of our sister courts of new States, rule announced in to his case. (2nd Miller e.g., Wang v. United No. 13-2426 Alejandro years Since was under 18 old at the 2013) July (granting Cir. to file a motion crimes, time of the commission of his Miller corpus petition raising successive habeas a James, claim); (4th clearly applies Alejandro's to sentence and re 12-287 Miller In No. 10, 2013) (same); compels this Court to set aside his sentence May Cir. Johnson v. United States, (8th Cir.2013) conformity (per and to resentence him in with the 720 F.3d 720 cu- riam) (same).”). law.”); State, Toye new v. 133 So.3d 547 72 be punishments may the list of over the ret- from arguments competing on a class of de- constitutionally imposed largely on whether focus

roactivity issue fendants,25 a rule addresses the not when virtually every- the Miller decision —which determining particular considerations a “new rule” —falls announces agrees one conclude that These courts sentence.26 Teague exception: Is the first under retroac- Miller does not satisfy the test for in a “substan- rule announced new bar categorically it does not tivity because category of a certain prohibiting one tive” ju- of life without all sentences of defendants be- for a class punishment Miller bars veniles; only those sentences or offense?24 status cause of their mandatory by explicit sentencing an made Miller is not holding that courts permissible Those changed It scheme.27 strictly construe first retroactive which the procedure method —the — new substantive rule Teague exception continuing power could exercise its State —a when the new rule homicide offenders punish juvenile apply of law —to Those courts state parole.28 life without particular punishment entirely removes 2002) (“Miller applies (stating retroactive- applies that Atkins (FIa.Dist.Ct.App.2014) retro relief for postconviction !y). actively provide sentenced to offenders homicide prison without the mandatory of life in terms (11th Morgan, F.3d 1368 In re 713 Geter, supra rejecting parole”; possibility of Cir.2013) ("A when new rule is substantive (Cal. n.20); Cal.Rptr.3d Rainey, 719 re 168 beyond the places that rale an entire class Williams, People v. 367 Ill.Dec. Ct.App.2014); power government impose certain of the (Ill.Ct.App.2012). 982 N.E.2d regardless of the fol- 12-CV-849, Gerry, v. Nos. See also Tulloch lowed, expands range when the rule 13-CV-085, 08-CR-1235, 13-CV-050, sentences.”); People Carp, possible 29, 2013). (N.H.Super. Jul. WL 4011621 Mich.App. 828 N.W.2d (“Miller necessary does not alter the elements ("The compet- Ragland, 836 N.W.2d at simply Rather for a homicide conviction. retroactivity ing arguments of Miller over the consideration of certain fac- necessitates essentially inquiry to whether the narrow the tors, involved, juveniles when are sentenc- merely penalty a new decision established ing.”). phase procedure for courts to follow before imposing parole for a life sentence without 5653447, by juveniles or whether the Symmes, crimes committed Martin v. 2013 WL See (“Miller rule (D.Minn.2013) either a substantive satisfy decision established does not *16 implicates that fundamental of law or one Teague exception it the first because does not accuracy pro- criminal fairness and of the (homicide by juve- place a of conduct a class ceeding.”). nile) pro- beyond power of the state to the scribe, category prohibit pun- a nor does it entirely example, Supreme Court 25. For (life parole) without for a ishment option a death sentence as a removed the (juveniles) class of defendants based on their possible punishment capital-murder case a Rather, (homicide). prohibits Miller offense mentally At when die defendant is retarded. sentencing particular in which a sen- scheme 304, 2242, Virginia, 122 S.Ct. kins v. 536 U.S. mandatory rather than the result of a tence is 153 L.Ed.2d 335 Lower courts have youth and process in which offender’s uniformly applies retroactive held that Atkins considered.”). are attendant circumstances ly proceedings to collateral as well as cases Briseno, appeal. parte direct on See Ex 135 ("Our Carp, N.W.2d at determina- 828 711 1, (Tex.Crim.App.2004) (applying S.W.3d 3 comprise tion Miller does not a substan- that retroactively applicant seeking Atkins to habe- and, therefore, subject Cockrell, tive new rule is relief); corpus Bell v. 310 F.3d as 330, Cir.2002) application for cases on collateral (5th retroactive (retroactively apply 332 ruling supported the fact that the review is ing proceedings); in federal habeas Atkins Anderson, 679, (6th primary, pri- place certain kinds of 681 Cir. does not Hill v. 300 F.3d

73 constituting ruling process the “cate- review or though informed that —as Graham, Roper, retroactivity determination on because the like cases gorical ban” that specifically Court did not hold Ring, Apprendi, Atkins,29 is more like is retroactive on collateral review.32 Padilla,30 procedural— is additional requiring an simply Conversely, that those courts offenders.31 These juvenile Miller retroactive have reasoned that it of the downplay importance also courts pre announced a substantive rule that remand of Miller’s companion “significant juvenile Court’s vents a risk that a v. Hobbs —which case, came to the Jackson punishment faces a law cannot They point on to the Su- impose Arkansas’s state eollateral- him.”33 through 466, 2348, beyond power Jersey, v. New U.S. 120 530 S.Ct. vate individual conduct (2000), law-making authority pro- requires the criminal 147 L.Ed.2d 435 which omitted). scribe.”) (quotation fact, marks any prior than the fact of a convic- other tion, penalty that increases the for a crime 82, Florida, 48, U.S. 130 29. Graham v. 560 beyond prescribed statutory maximum 2011, (2010) ("The 176 L.Ed.2d 825 S.Ct. jury proved must be submitted to a be- prohibits imposition of a life Constitution doubt, yond a reasonable and Padilla v. Ken- parole without sentence on offender tucky, 559 U.S. homicide.”); Roper v. who did not commit Simmons, (2010), requires which L.Ed.2d coun- 578, 125 S.Ct. 543 U.S. plea sel inform a client whether his carries a (2005) ("The Eighth and Four- deportation, risk Miller "decision con- imposition of the teenth Amendments forbid evolutionary designed stitutes an refinement penalty on offenders who under death were correspond developments to new in an age of 18 when their crimes were commit- law.”) ever-changing (quotation area of marks ted.”); Virginia, 536 U.S. Atkins omitted). 153 L.Ed.2d 335 (“Construing applying Amend- (11th light 'evolving Morgan, ment in the of our standards of In re 713 F.3d Cir.2013) ("Miller decency,' changed procedure by that such therefore conclude and that the Constitu- may impose is excessive which a sentencer a sentence of 'places tion a substantive restriction on the parole by requiring life without on a minor mentally power State’s to take the life' of a the sentencer to take into account how chil- offender.”). different, retarded dren are and how those differences against irrevocably sentencing counsel them Tate, (La.2013) 30. State v. 130 So.3d prison. to a lifetime in And the Court de- Court, ("[Bjecause the Miller like the Court categorical clined to consider a life bar on Arizona, [Ring v. juveniles, or at least those (2002) (Capital defen- younger.”) (quotation 14 and and alteration jury dants are entitled to a determination of omitted). marks legislature any fact on which the conditions ], punishment) an increase in their maximum ("The requirement Id. at 1367 that a new merely permissible by altered the methods rule be made retroactive on collateral review continuing which the State could exercise its by Supreme only the Court ‘is satisfied if th[e] power, juvenile punish in this case to homi- [Supreme] Court has held that the new rule is by imprisonment cide offenders life without retroactively applicable to cases on collateral possibility parole, ruling the of we find its is Supreme And the review.' Court has not held nature.”) procedural, (rely- substantive retroactively applicable that Miller is to cases Summerlin, 348, ing on Schriro v. 542 U.S. Cain, review.”) (quoting Tyler on collateral v. 2519, (2004), 124 442 S.Ct. 159 L.Ed.2d 656, 662, 2478, 150 Ring properly which held that v. Arizona (2001)). L.Ed.2d 632 procedural classified as rather than substan- tive, apply retroactively and thus did not to State, 698, (Miss. v. already 33. Jones 122 So.3d 702 death-penalty final re- case on direct 2013) view); State, 375, (quotation Geter v. 115 382 and alteration marks omit So.3d that, ted). (Fla.Ct.App.2012) (holding Apprendi like 74 that can punishments the list of “new sub ment from of a explanation

premé Court’s man constitutionally imposed, that of be v. Summerlin: in Schriro rule” stantive parole.37 life without datory include “constitu rules New substantive place particular determinations tional Supreme the These courts note that by the statute covered persons or conduct categorical on the Court’s reliance power punish.”34 to State’s beyond repre- of cases lines individual subject Miller juveniles manda apply retroac- Miller places its intent sents Graham, parole” beyond statutes Roper, and At- tively “life tory —because alters punish.35 It kins were applied retroactively.38 These power the State’s pro say Supreme of a criminal also outcomes courts range of made Miller mandatory by ap- sen retroactive implicitly by prohibiting ceeding Miller’s companion parole juvenile plying for a the rule to life without of tence case, v. Hobbs —a Jackson post-conviction categorical murderer.36 on collateral review.39 particular punish case removes completely J., Summerlin, (O’Connor, concurring) (describing syl U.S. 542 v. 34. Schriro 2519, relationship Teague’s excep logistic between 159 L.Ed.2d nonretroactivity placing rules cer tion Ragland, 836 N.W.2d v. State beyond power of the state to tain conduct ("From 2013) (Iowa perspective, Mil- a broad fit subsequent cases that proscribe into Yet, procedure. a new mandate ler does exception); Penry Lynaugh, 492 Teague's v. hearing of a rule for a is the result procedural U.S. prohibits change law that in the substantive (1989) (”[T]he exception set forth in first sentencing. mandatory life-without-parole cover not Teague should be understood to Thus, imposing a case bars from states forbidding punishment criminal of rules peo- type punishment of on certain certain pro primary conduct but also rules certain ple.”). hibiting category punishment for a certain because of their status a class of defendants 12-CV-849, Gerry, v. Nos. 13- Tulloch 36. See offense.”), by abrogated grounds on other 08-CR-1235, 13-CV-085, CV-050, WL Atkins, We 536 U.S. at 122 S.Ct. 2242. 29, 2013). (N.H.Super. *6 Jul. years ago when we joined this discourse three retroactively. v. applied held Bonilla Graham Attorney 37. Diatchenko District for Suffolk (Iowa 2010). State, 791 N.W.2d 700-01 Dist., 466 Mass. 1 N.E.3d 270 practical of the treatment of This observation ("The explicitly imposition rule forecloses the underlying authority Miller is instruc category punishment a certain —manda- authority portion of the tive. If a substantial tory without the life retroactively, applied in Miller has been used specific class of defendants: —on logically treat receive the same Miller should age eighteen individuals under the those ment.”). they commit crime of murder. Its when application retroactive ensures that Diatchenko, ("Our 1 N.E.3d at 281 39.See homicide offenders do not face a supported the fact that in conclusion is constitutionally that our criminal law cannot retroactively ap them.”). impose on announcing that it was in that plied the rule companion case Ragland, case to the defendant State v. 836 N.W.2d (Iowa 2013) ("[T]he re before the Court on collateral cases used the Court who was Williams, omitted); view.”) (citation People v. support in Miller to its have been 181, (Ill.Ct. retroactively 982 N.E.2d 197 applied on both direct and col 367 Ill.Dec. ("It that the Miller Sparks, App.2012) F.3d is instructive lateral review. See In re 657 Hobbs, case, (5th Cir.2011) arising (indicating companion v. on Jackson 261-62 Gra review, life-without-pa involved a retroactive on collateral re collateral ham was made final. Notwithstand by Supreme role-sentence heretofore view the Court as a matter of Supreme Tyler, ing finality, Court of logical necessity Tyler); its under see also (2001)] retroactively applied [656, States in effect 533 121 S.Ct. 2478 United U.S.

75 retroactivity there was no method to determine on the split Courts are call, juvenile’s pun- whether a conduct question a close and it is because it is by life in by prison pa- one be resolved ishable without ultimately that must driven, But Miller mandatory. is role —it was automatic Supreme and Court. Miller, foremost, range After there a of first the conclusion that is -new by and discretionary that constitutionally “children are different sentences outcomes — up possi- can extend to life without sentencing.”40 from adults for purposes ball, bility parole think but also include the Looking crystal into the Thus, will hold that Miller Miller Supreme more lenient alternatives. Teague exception. Ring from it distinguishable falls under the first We simply reallocate decision conclude that it is a “new substantive rule” does juvenile’s mandatory making authority judge jury; from puts a “life with instead, parole” provides sentencing out sentence outside the ambit of a court making authority with decision where power. the State’s banning there once was manda- none — In which “altered distinguishing Ring,41 tory parole life sentences without de range permissible methods for (cid:127) requiring discretionary sentences. Un- termining whether a defendant’s conduct is Miller, juvenile defendant is re- der death,” judge quoted one punishable have the to estab- quired opportunity case that stated post-Ring Supreme Court “ life is not an lish that without [rjules decision-making that allocate For these rea- appropriate sentence. prototypical in fashion are authority this the Miller rule is substantive.43 sons, ”42 procedural rules[.]’ agree. We to Mil- reasoning apply does not This Miller, Ring, First, predicted rule in

ler. unlike Miller does not that.“appropriate alter the manner of de- occasions Instead, juveniles possible penalty to the harshest termining culpability. “great because of the of outcomes available will be uncommon” range alters the Roper Graham difficulty re- we noted criminal conduct. The for certain that Miller is a early age at this pro- distinguishing between spondents suggest whose crime reflects range because it alters the offender cedural rule yet immaturity, transient determining methods for unfortunate permissible juvenile offender whose crime punisha- conduct is the rare juvenile’s whether irreparable corruption.”44 This parole. reflects ble life Miller, uncommon cases. may Before be one those disagrees. The court 12-CV-849, Gerry, 42. Tulloch v. Nos. 13-CV- Miller and vacated Jackson’s sentence. 13-CV-085, 08-CR-1235, WL applied to the a new rule is defendant '[0]nce (N.H. 2013) rule, Super. *6 Jul. announcing case evenhanded (granting petitioners’ request for habeas four requires applied retroactively justice that it be remanding sentencing hearings relief and situated.'") similarly (quoting to all who are Alabama) (quoting consistent with Miller v. 1060). Teague, U.S. at Summerlin, 348, 353, 542 U.S. Schriro v. (2004)). S.Ct. 159 L.Ed.2d 442 Miller, S.Ct. at 2464. Id. at *7. Arizona, Ring (some quotation (holding 132 S.Ct. at 2469 S.Ct. omitted). sug- marks Chief Justice Roberts sentencing judge, sitting jury, that a without a gested prediction: an ulterior motive for the finding aggravating may not make a of an necessary imposi- gratuitous prediction appears circumstance that is for the Court’s [T]he nothing penalty). other than an invitation to tion of the death to be Alabama, bama,1 But, v. that must I but dissent characteriza- under from its discretionary decision made be a por- tion of the Miller that rule and what of sentencing-factfinder, upon based all retroactivity. tends for the issue of its evidence, mandatory an automatic “life mind, my clearly proce- the Miller rule is Accordingly, sentence. parole” applied and therefore not be dural should request for relief petitioner’s habeas retroactively. Because Terrell Maxwell’s vacate his sentence are motion to and Miller is application alleges writ remand case for granted. We this further rule, begin a new sübstantive I with the permit to the fact- sentencing proceedings (1) following assumptions: majori- like the (1) applicant’s finder to assess sentence at rule;2 ty, that Miller is a new and (as possibility parole both life with proce- Miller is not a “watershed” rule of post-2013 Texas law pre-2005 per- and subject retroactivity. dure mits) (2) without parole life after consid- conduct, applicant’s individual eration The statutory Miller Court held that circumstances, and character.45 im- automatically schemes that pose a life-without-parole ju- sentence on WOMACK, J., dissenting opinion filed a Eighth venile defendants violate the KELLER, P.J., joined. in which prohibition un- Amendment’s cruel and KEASLER, J., filed a dissenting opinion punishment.3 usual The Court’s KELLER, P.J., HERYEY, in which was precedent— informed two lines of J., joined. categorical practices ban on sentencing KEASLER, J., dissenting opinion filed a imposed on a class of offenders and the KELLER, P.J., HERVEY, in which mandatory imposition of capital punish- J., joined. Simmons,5 Roper ment.4 In in which it penalty juve- concluded that the death majority correctly recounts what Court held in Miller v. Ala- nile years age offenders under 18 parole life without (concluding Roper overturn sentences im- 2. id. See at by juries posed judges. to,” and trial If that opposed and Graham “leads as to "com- widely accepted invitation is and such sen- pels” stating its decision "we are break- tences for offenders do in fact be- cases”); ing ground no new in these see also "uncommon,” come the Court will have (Roberts, C.J., ("If dissenting) id. at 2480 bootstrapped way declaring its that the unwilling say precedent Court is com- Eighth absolutely prohibits Amendment decision, pels today’s perhaps it should recon- them. decision.”). sider that But see id. at 2466 process This has no discernible end (" (majority opinion) age,’ ‘An offender’s point at least none consistent with our —or Graham, made clear in 'is relevant to the legal Nation's traditions. Amendment,' proce- and so ‘criminal (Roberts, C.J., dissenting). Id. at 2481 youth- dure laws that fail to take defendants' Brief, County In its the Travis District At- fulness into account at all would be torney opposes the application retroactive ”) Florida, (quoting flawed.' Graham v. Miller, but states that it has or will be submit- U.S. 176 L.Ed.2d 825 ting request to the Texas Board of Pardons (2010)). and Paroles that Terrell Maxwell’ssentence of life without be commuted to a sentence Id. at 2464. of life parole. with the State’s Brief at 18 n.9. This matter is best addressed at Id. 2463-64. in the trial court. — U.S. -, 5. 543 U.S. (2012). unconstitutional, life-without-parole prohibit and in v. Flori- sentences for Graham da,6 it held that a life-without- imposing in which juveniles; prohibited them imposed be on could not parole sentence mandatorily. offense, a nonhomicide

juveniles for merely Describing This is not semantic. that children are con- “establish[ed] Court holding way recognizes Miller’s pre- this pur- adults for stitutionally different from cisely how the Court has drawn the line “juveniles sentencing” because poses of between substantive rules that are retroac- culpability greater have diminished procedural tive and rules that are not. Miller was also prospect for reform.”7 opinion The Court’s Schriro v. Summer- Carolina,8 by influenced v. North Woodson lin,10 terms, which these defined indicates mandatory imposition held that which holding that the in Miller did not announce unconstitutional be- penalty the death is Summerlin, it failed to allow for individualized a substantive rule. In cause sentencing decisions. issue before the Court was whether or not Arizona,11 Ring v. which found unconstitu- the Miller found unconsti-

What Court tional Arizona’s permitting statute schemes is sentencing tutional in these finding necessary aggravating factors to ju- sentence for life-without-parole how a impose penalty by judge the death in- that these imposed. veniles is jury,12 of a applies retroactively fail to stead unconstitutionally give statutes opportunity factfinder the to consider the already cases final on direct review.13 The characteristics of a defendant’s unique began by repeating its familiar ret- youth, essentially removed the roactivity analysis: “mandatory” statutory from the lan- term When a decision of this Court results in guage. Miller received rule,” applies a “new that rule all “mandatory not parole, was life without criminal cases pending still on direct parole.” life without Pursuant to Alabama review. As to convictions that are al- law, life-without-parole sentence Miller’s final, however, ready applies the rule words, imposed mandatorily other —in limited circumstances. New sub- au- without discretion from stantive retroac- generally apply rules thority. any I am unaware of defendant tively. This includes decisions that nar- being “mandatory sentenced to life without scope row the of a criminal statute parole,” at not in Texas. The sen- least terms, ... interpreting its as well as parole. tence is life without This is an place constitutional determinations that observation, obvious but it is a distinction particular persons conduct or covered majority I believe the misses when it beyond power the statute the State’s juvenile’s mandatory claims that “a ‘life punish.... apply Such rules parole’ sentence outside the am- retroactive- power.”9 ly “necessarily bit of the State’s they carry sig- did 6. 560 U.S. 130 S.Ct. 176 L.Ed.2d 10. 542 U.S. 124 S.Ct. 159 L.Ed.2d (2010). (2004). 11. 536 U.S. 7. 132 S.Ct. at 2464. (2002).

8. 428 U.S. Summerlin, 350-51, at Ante, original). op. (emphasis at 75 Id. at 124 S.Ct. 2519. ”;19 ... and “Our decision different stands are that a defendant risk nificant penalty for a categorically bar a law does not does not ‘an act that the of convicted ” as, of type a of offenders or or faces class make criminal’ crime— him.14 impose upon example, Roper we did in Graham.”20 law cannot that the hand, rules, other are on the Procedural from oth- the of decisions From number retroactively applied not generally position on Mil- jurisdictions taking er persons of a class produce not “[t]hey do majori- in the retroactivity identified ler’s law does not make the of conduct convicted research, without adopts, the ty’s the criminal, merely raise but reasoning of unpublished explanation, of the with use convicted that someone judge trial Hampshire Newa might have been ac- procedure invalidated I rule.21 find that Miller is a substantive “[0]nly a small set quitted otherwise.”15 portion reasoning unpersuasive. The that procedure criminal rules of of watershed majority adopts judge’s ruling of fundamental fairness and implicating opinion judge’s its is the reproduces in giv- proceedings” are of criminal accuracy distinguish Summerlin’s treat- attempt to Substantive rules effect.16 en retroactive held to be Ring, of which the Court ment conduct or the class range “alter[ ] non-retroactive, Mil- question from the punishes”; proce- law persons retroactivity. judge began ler’s only the manner “regulate dural rules Ring, that “unlike Miller does stating culpability.”17 determining the defendant’s determining culpabili- the manner alter definitions, rule is the Miller By these range Miller alters the ty. Instead im- the manner of regulates procedural —it criminal available for certain outcomes life-without-parole sentence for posing These statements miss conduct.”22 that a did not conclude juveniles. Miller between the manner of direct correlation on a imposed life-without-parole sentence resulting and the determining culpability therefore unconstitutional and juvenile is It is Miller’s altera- punishment outcome. way any the “class of change did not the manner —or tion of —of punishes.” law On this person that decisions that makes a making punishment issue, language could the Miller Court’s potential punishment out- range of wider “we do not consider hardly be clearer: possible. comes arguments [petitioners’] alternative rejecting argument requires Amendment a cate- rule, judge procedural announced a parole juve- on life without gorical bar Miller, that, “Before there was niles”; we do not foreclose a concluded “Although juve- no method to determine whether ability to make life-without- [a sentencer’s cases, by life in punishable conduct was in homicide we nile’s parole] judgment automatic it to take into account how children require —it 351-52, (citations 124 S.Ct. 2519 Id. 14. Id. at 19. omitted). at 2471. Id.

15. Id. at 124 S.Ct. 2519. Ante, op. at 75. omitted). (internal quotations 16. Id. Order, Gerry, Trial Nos. 12-CV- 22. Tulloch (emphasis in Id. at 124 S.Ct. 2519 08-CR-1235, 13-CV-050, 13-CV-085, original). (N.H.Sup.Ct. *7 Jul. 2013 WL Miller, 2013). 132 S.Ct. at 2469. mandatory. deny application After there is a would his for a writ of corpus. habeas discretionary new sen- range of outcomes— can to life without up tences that extend WOMACK, J., dissenting opinion filed a possibility parole of but also include KELLER, P.J., joined. in which the more lenient alternatives.”23 Even if I disagree with the respectfully Court’s judge’s implicit acknowl- dismiss holding that Miller v. Alabama1 an new, edgment that Miller created a consti- nounced a new substantive rule. procedure punishment deci- tutional juvenile, possibility sions of a of lesser Miller, Supreme of the being imposed sentences after Miller is States United held that “the not evidence of a substantive rule. De- sentencing Amendment forbids a scheme spite attempts, judge’s reasoning possi- that mandates life in cannot avoid instruction that bility parole Summerlin’s of offenders.”2 substantive rules are those that alter the The Supreme previously invalidat- range persons of conduct or the class of penalty ed the death for all offenders un- punishes.24 range the law The of age der the of 18.3 In after this juve- conduct of punishable class applicant’s conviction and in response to eligible life-without-pa- to receive a niles Legislature the Texas amended the role are no sentence smaller after Miller. Texas Penal Code allow for a life sen- It is not “a that the law cannot possibility tence with the for a impose considering on him.”25 After capital felony “if the individual committed youth, a younger years defendant’s factfinder is still able the offense when than 18 age.”4 impose life-without-parole a sentence. Indeed, opinion today states Court’s Supreme Court has not ruled on may that Maxwell still be sentenced to life- applicability the retroactive of its decision without-parole upon further in Miller. This analysis Court uses the proceedings.26 The mere that a Teague provided v. Lane5 to decide may in impose factfinder certain cases questions retroactivity.6 In Teague, the lesser sentence is for purposes irrelevant that, generally, Court held new determining retroactivity. Miller’s For constitutional rules of criminal reasons, I these would hold that Miller is “will applicable not be to those cases support not retroactive and cannot Max- which have final become before the new request Accordingly, well’s for relief. I rules are announced.”7 Simmons, Roper 23. Id. 3. 543 U.S. (2005). Summerlin, 24. See at 124 542 U.S. S.Ct. 12.31(a) (b) (effective 2519. § 4. Penal Tex. Code & 22, 2013). July Ante, State, op. (citing 25. at 73 Jones v. 122 (Miss.2013)). So.3d 5. 103 L.Ed.2d 334 (1989). Id. at 75-76. See, Lave, e.g., parte Ex 257 S.W.3d 235 Keith, Alabama, - U.S. -, (Tex.Cr.App.2008); parte Ex 1. Miller v. (Tex.Cr.App.2006). S.W.3d 767 Teague, 489 U.S. at 109 S.Ct. 1060. Id. at 2469. penalty for a class of question categorically of whether bar a threshold

There is -as, A for exam- type is a “new” rule. offenders or question rule in crime— ground “breaks new Roper one that or ple, new rule is did Graham. [the Court] obligation” gov- on the a new imposes Instead, it mandates that a sentencer way, “a case it another put To ernment.8 an process considering follow a certain — if was not rule the result a new announces youth and attendant characteris- offender’s at the time existing by precedent dictated particular penal- imposing tics—before became final.”9 conviction the defendant’s all ty.” Miller does not bar sentences an- Supreme Court The rule juveniles; it bars imprisonment life for it re- was new because nounced in Miller mandatory by a sentenc- those made time, individualized the first quired, for Teague exception The ing scheme. first in a context outside the death apply. does not dic- requirement This was not penalty.10 Teague exception applies to The second applicant’s when the by precedent tated procedure of criminal im- “watershed rules became final. conviction plicating the fundamental fairness and ac- whether of the The next issue is either This curacy proceeding.”14 of the criminal Teague exceptions applies to overcome two very exception, appli- limited and the application bar to retroactive general not it in his cant stated he would discuss A on collateral review. new of new rules extremely of the limited light brief.15 retroactively applied rule will be to cases exception,16 appli- nature of this and the (1) “places collateral review if it either on argue applicabil- cant’s choice not to for its primary, private certain kinds of individual it in The ity, I shall not address detail. beyond power to [the law] conduct Teague exception apply. does not second the observance proscribe” “requires implicit that are in the procedures of those I would hold that the new rule an- liberty.”11 of ordered concept satisfy nounced Miller does exception limited allows retro- first requirements application. for retroactive “pro- of new rules that application active recognize I that we could accord retro- category hibit certain active effect to Miller as matter of state a class of defendants because of their sta- However, However, I would not in habeas law.17 do so. tus or offense.”12 Teague general that it “does not This follows as a explicitly states See, Banks, 406, 417, e.g., 8. Id. at 109 S.Ct. 1060. 16. Beard v. 542 U.S. (2004) ("... 124 S.Ct. 159 L.Ed.2d 494 9. Ibid. yet surprise come as no that we have should to find a new rule that falls under the second Miller, at 10. 132 S.Ct. 2470. Keith, Teagueexception.”); 202 S.W.3d at 770 that, ("It noting Teague, is worth since no new Teague, 11. 489 U.S. at 109 S.Ct. 1060 procedure rule of criminal has been found (internal omitted). quotation marks high [required meet that standard for the sec- apply].”). exception ond Netherland, 12. O'Dell v. 521 U.S. 138 L.Ed.2d 351 Minnesota, 17. See Danforth (2008) (hold- 13. at ing Teague not constrain "the au- does give thority of state courts to broader effect O'Dell, 521 U.S. at 117 S.Ct. 1969. new rules of criminal than is re- Applicant’s quired by opinion"). at Brief practice,18 matter of state habeas and this present

case does not a reason for us to that practice. deviate from the writ deny application I would corpus. of habeas PEREZ, Appellant Eduardo of Texas. STATE No. PD-0498-13. Appeals Court of Criminal of Texas. March Bynum,

Franklin Gordon County Harris Office, Houston, TX, Public Defender’s Appellant. Caird,

Jessica A. Assistant District At- Houston, McMinn, torney, Lisa C. State’s TX, Attorney, Austin, for the State of Tex- as.

OPINION

JOHNSON, J., opinion delivered KELLER, P.J., Court which MEYERS, WOMACK, KEASLER, HERVEY, COCHRAN, ALCALÁ, JJ., joined.

As stated the court of “This appeals, about court costs.” Perez v. appeal is an See, Lave, 257 S.W.3d at 237. e.g.,

Case Details

Case Name: Maxwell, Ex Parte Terrell

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 12, 2014

Citation: 424 S.W.3d 66

Docket Number: AP-76,964

Court Abbreviation: Tex. Crim. App.