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Developments on Retroactivity of Miller v. Alabama

Peter Hall of The Morning Call (Allentown, Penn.), reports:

Three men sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced following a U.S. Supreme Court decision saying that practice is unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled Thursday the men can file appeals to their state sentences to determine whether the Supreme Court's decision applies in their cases.
First, it should be noted that the Supreme Court did not "say[] that practice is unconstitutional."  It said that having that sentence mandated by law, without discretion in the sentencer to opt for a lower sentence on the individual facts of the case, is unconstitutional.

The decision Thursday involves an arcane bit of federal procedure and is easily misunderstood.  The Third Circuit has not decided that Miller v. Alabama applies retroactively on federal habeas corpus to cases long since final on direct appeal.
A state prisoner can generally seek review of his conviction and sentence three ways:  an appeal to the state appellate courts directly from the judgment, a collateral attack on the judgment in state court (which may be called habeas corpus, motion to vacate, personal restraint petition, motion for appropriate relief, and other names varying by state), or a habeas corpus petition in federal court.  They are generally done in that order.

In 1996, Congress clamped down hard on prisoners filing a second federal habeas petition after one has been heard and denied.  Typically, this would be a person whose case has been reviewed at least three times, seeking a fourth or more.  The general rule against such petitions has a couple of exceptions.  One requires a strong showing of actual innocence.  That does not come up too much, for the obvious reason that most prisoners are stone-cold guilty.  The other exception (28 U.S.C. ยง2244(b)(2)(A)) is, "the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable...."

Note that it is not enough that the new rule qualifies for retroactive application under general rules of law.  The Supreme Court must have made this specific rule retroactive.  See Tyler v. Cain (2001).

Congress did not trust the district courts to make the threshold determination of whether a successive claim might qualify.  In subdivision (b)(3) of the statute, it required petitioners to get permission from the court of appeals to file, based on a determination that the petitioner has made "a prima facie showing."  The Third Circuit applies a rather low threshold to this determination.

Under our precedent, a "prima facie showing" in this context merely means "'a sufficient showing of possible merit to warrant a fuller exploration by the district court.'" Goldblum v. Klem, 510 F.3d 204, 220 (3d Cir. 2007) (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
I think Congress had a higher hurdle in mind, particularly where the issue is a purely legal one such as retroactivity, as distinguished from the facts of the individual case.  But this is the law in the Third Circuit, at least for the time being.

Petitioners argue: (1) that the Supreme Court implicitly made Miller retroactive by applying the rule to Miller's companion case, Jackson v. Hobbs, which came to the Court through Arkansas's state collateral review process; (2) that Miller announced a substantive rule that "necessarily carr[ies] a significant risk that a defendant . . . faces a punishment that the law cannot impose upon him," Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal quotations marks omitted), and therefore should be given retroactive effect under Teague v. Lane, 489 U.S. 288 (1989) (plurality); and (3) that, in the alternative, Miller qualifies as a "watershed procedural rule[] of criminal procedure" meriting retroactive application under Teague, 489 U.S. at 311.
The Third Circuit does not decide whether any of these arguments are right or wrong.  It says that there is a sufficiently arguable basis to go forward.

I do not agree.  (1) The state court did not rely on any procedural basis for denying the claim in Jackson, so under well-established law the U.S. Supreme Court could also go to the merits on certiorari review of that decision.  Cases on federal habeas corpus are different.  The Supreme Court in Jackson could not and did not decide such issues.

(2) Eligibility for the punishment is not at issue here.  This rule is clearly procedural, not substantive, under Summerlin.  Indeed, the claim that the rule is substantive sounds very much like the Ninth Circuit holding that the Supreme Court so emphatically reversed in Summerlin, without a single justice voting to affirm on that ground.

Argument (3) refers to an exception to the Teague rule that the Supreme Court has almost, but not quite, declared dead.  It is reserved for rules of the magnitude of Gideon v. Wainwright, and the court has noted the extreme unlikelihood that any such rules remain to be made.  Miller would seem to be obviously short of the mark.

Arguments (2) and (3) also fail because of the rule of Tyler v. Cain.  Even if they had intrinsic merit, the Supreme Court has not yet made Miller retroactive, and that is what matters under the statute.

In my view, these three arguments, individually and collectively, fail to reach even the Third Circuit's low threshold.  But this is a preliminary point.  The real battle comes later.

The Third Circuit opinion notes on page 8 that the Second, Fourth, and Eighth Circuits have made similar preliminary findings that retroactive Miller claims can go forward in successive petitions.  On the other hand, the Fifth and Eleventh Circuits have reached the merits and held that Miller is not retroactive.

Along with the two Pennsylvania state cases, there is one federal case in the mix.  USDoJ has apparently thrown in the towel on Miller retroactivity.


Can you elaborate on your answer to #1 for the uneducated here?

This post was a year ago. I'm not going to be updating it. I will get back to the Miller retroactivity question in due time.

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