Under the rule of Griffith v. Kentucky, Miller applies retroactively to all cases that were still on "direct appeal" on the date it came down. "Direct appeal" is the initial appeal of the case on the trial record, as distinguished from "collateral review," further attacks on the judgment that typically come later, including habeas corpus and statutory substitutes for it. The unresolved question, now before the high court in Montgomery v. Louisiana, is whether the Miller rule will reach back and require resentencing of every murderer sentenced under a mandatory LWOP statute for a crime committed a day or more before his 18th birthday, no matter how long ago that was.
CJLF's brief in the case was mailed in Monday. The main argument of the brief is that the "first exception" to the anti-retroactivity rule of Teague v. Lane (1989) is properly understood as an "actual innocence" rule. It applies only when the new rule renders the defendant innocent of the crime or ineligible for the punishment.
Readers of this blog and Sentencing Law and Policy may be interested in Part IV of the brief, where I go "heads up" with our friend Doug Berman. He proposes that noncapital Eighth Amendment rules be exempted from Teague altogether. Regular readers will not surprised to learn that I quite strongly disagree.