Submitted February 10, 2015
Appeal from United States District Court for the District of Minnesota - Minneapolis.
For Stafon Edward Thompson, Petitioner - Appellant: Bridget Kearns Sabo, Minnesota Public Defender's Office, Saint Paul, MN.
Stafon Edward Thompson, Petitioner - Appellant, Pro se, Bayport, MN.
For Tom Roy, Commissioner of Corrections, Respondent - Appellee: Jean Burdorf, J. Michael Richardson, Hennepin County Attorney's Office, Government Center, Minneapolis, MN.
Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges. KELLY, Circuit Judge, concurring in the judgment.
GRUENDER, Circuit Judge.
Stafon Thompson appeals from the district court's judgment denying his petition for relief under 28 U.S.C. § 2254. The district court denied relief because it concluded that the rule announced in Miller v. Alabama, 567 U.S.
__, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not apply retroactively. We affirm.
In 2009, a jury found Thompson guilty of two counts of first-degree premeditated murder and two counts of first-degree murder while committing aggravated robbery. Thompson was seventeen when he committed these crimes. Pursuant to Minnesota law, he received two consecutive mandatory sentences of life imprisonment without the possibility of release. Minn. Stat. § § 609.185(a)(1), 609.106, subd. 2(1). The Minnesota Supreme Court affirmed Thompson's convictions and sentences on direct appeal. Minnesota v. Thompson, 788 N.W.2d 485, 496 (Minn. 2010).
In 2012, the United States Supreme Court held in Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407, that the Eighth Amendment forbids a sentencing scheme that mandates a sentence of life in prison without the possibility of parole for juvenile offenders. Id. at 2469. Miller thus announced a new obligation for state and federal courts to conduct an individualized sentencing analysis before imposing such a sentence on defendants who were under the age of eighteen at the time of their offense. Id. Because Thompson was seventeen when he committed the murders, he petitioned for relief under 28 U.S.C. § 2254, arguing that he received a sentence that is now unconstitutional under Miller. The magistrate judge recommended dismissing Thompson's § 2254 petition with prejudice because he concluded that Miller 's rule was not retroactively applicable. The district court adopted the magistrate judge's report and recommendation in full.
On appeal, Thompson argues that the district court erred by concluding that Miller does not apply retroactively. We review the district court's determination on this legal question de novo. Danforth v. Crist, 624 F.3d 915, 918 (8th Cir. 2010).
We recently considered this question in Martin v. Symmes, 782 F.3d 939 (8th Cir. 2015). In Martin, a juvenile offender had been sentenced under the same Minnesota statute to life in prison without the possibility of release. Id. at 941. Like Thompson, the Martin petitioner requested § 2254 relief, arguing that Miller applied retroactively to his sentence. Miller, he argued, announced a new rule of criminal procedure that qualifies under either of the two exceptions to the general presumption against retroactivity: (1) the new rule is substantive, or (2) the new rule is a watershed rule of criminal procedure " implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 942 (quoting Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007)). A unanimous panel of our court rejected both arguments. Id. at 943-44.
As we explained in Martin, Miller did not announce a new substantive rule because it neither categorically barred a punishment nor placed a group of persons beyond the state's power to punish. Id. at 942. Indeed, the Supreme Court made clear in Miller that the decision did not foreclose the imposition on juvenile offenders of a discretionary sentence of life in prison without the possibility of parole. 132 S.Ct. at 2469. After Miller, as before, a court retains the power to impose such a penalty. That the sentence now must be discretionary does not alter its substance. Like Thompson, a juvenile defendant sentenced to life in prison without the possibility of parole under Miller will spend the rest of his life in prison. " No one would say that one defendant received greater or lesser punishment than the other." Thompson v. Roy, No. 13-CV-1524, 2014 WL 1234498, at *2 (D. Minn. March 25, 2014). Accordingly, as we held in Martin, Miller did not create a new substantive rule. Martin, 782 F.3d at 942.
Thompson nevertheless argues that Miller is substantive because Miller, according to Thompson, makes age an element of an offense, and " [a] decision that modifies the elements of an offense is normally substantive rather than procedural." Schriro v. Summerlin, 542 U.S. 348, 354, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). This argument stems from Alleyne v. United States, 570 U.S.
__, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which defines an element, for Sixth Amendment purposes, as " any fact that increases the mandatory minimum" sentence. Id. at 2155. Even if we assume that Miller somehow made age a necessary element for imposing a sentence of life in prison without parole on juvenile offenders, Thompson's argument fails. The Supreme Court decided Alleyne after it decided Miller. For Alleyne 's rule to apply here, Alleyne itself would have to apply retroactively. See Michigan v. Carp, 496 Mich. 440, 852 N.W.2d 801, 829-30 (2014). Our court has not held that Alleyne applies retroactively, and Thompson fails to argue this ...