                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 13-3676
                       ___________________________

                             LaMonte Rydell Martin

                     lllllllllllllllllllll Petitioner - Appellant

                                         v.

        Jessica Symmes, Warden, Oak Park Heights Facility, Minnesota

                      lllllllllllllllllllll Defendant - Appellee

                            ------------------------------

Juvenile Law Center; Campaign for the Fair Sentencing of Youth; Children’s Law
  Center of Los Angeles; Council on Crime and Justice; Defender Association of
   Philadelphia; ISAIAH; Juvenile Justice Project of Louisiana; Juvenile Justice
    Initiative; Legal Rights Center; National Association of Criminal Defense
  Lawyers; National Center for Youth Law; National Juvenile Defender Center;
 National Juvenile Justice Network; National Legal Aid & Defender Association;
 The Orleans Public Defenders; The Pacific Juvenile Defender Center; The Public
 Defender Service for the District of Columbia; Rutgers School of Law - Camden
  Children’s Justice Clinic; San Francisco Office of the Public Defender; Youth
       Law Center; Stephen K. Harper; Kristin Henning; Frank Vandervort

                                     Amici on Behalf of Appellant
                                  ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________
                            Submitted: November 12, 2014
                                Filed: April 6, 2015
                                   ____________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       A Minnesota jury convicted LaMonte Rydell Martin of first-degree murder,
committed at age 17. Martin received a mandatory life sentence without possibility
of release. The Minnesota Supreme Court affirmed and also rejected a challenge to
the jury’s composition under Batson v. Kentucky, 476 U.S. 79 (1986). State v.
Martin, 773 N.W.2d 89, 104, 110 (Minn. 2009).

      Martin filed a habeas petition under 28 U.S.C. § 2254. While it was pending,
the U.S. Supreme Court held that mandatory life sentences without parole for
defendants who commit homicide before age 18 violate the Eighth Amendment.
Miller v. Alabama, 132 S. Ct. 2455, 2460, 2475 (2012). The magistrate judge1
ordered briefing, and Martin argued that Miller applied retroactively to him.

       The district court2 denied the petition, but granted a certificate of appealability
on the Miller and Batson issues. Martin v. Symmes, 2013 WL 5653447, at *17 (D.
Minn. Oct. 15, 2013). Having jurisdiction under 28 U.S.C. §§ 1291 and 2253, this
court affirms.



      1
      The Honorable Tony N. Leung, United States Magistrate Judge for the District
of Minnesota.
      2
       The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

                                           -2-
                                          I.

       In Miller, the Court relied on its prior juvenile-sentencing decisions. Miller,
132 S. Ct. at 2463, citing Roper v. Simmons, 543 U.S. 551, 578 (2005) (categorically
barring death sentences for offenders under 18) and Graham v. Florida, 560 U.S. 48,
82 (2010) (categorically barring life sentences without possibility of parole for
juveniles convicted of non-homicide offenses). “By making youth (and all that
accompanies it) irrelevant to imposition of that harshest prison sentence, [a
mandatory] scheme poses too great a risk of disproportionate punishment.” Id. at
2469. Now, sentencers must “take into account how children are different, and how
those differences counsel against irrevocably sentencing them to a lifetime in prison.”
Id.

       Miller consolidated the appeals of Evan James Miller (on direct review) and
Kuntrell O’Bryan Jackson (on collateral review), both of whom had received
mandatory life sentences without parole for murders committed at age 14. Id. at
2460, 2461, 2462. See also Miller v. State, 63 So. 3d 676, 691 (Ala. Crim. App.
2010) (affirming Miller’s mandatory life sentence); Jackson v. Norris, 378 S.W.3d
103, 106 (Ark. 2011) (declining to extend Roper and Graham to non-death sentences
for juvenile homicide defendants and affirming dismissal of Jackson’s state habeas
petition). The Miller opinion reversed both cases. Miller, 132 S. Ct. at 2475.3




      3
        On March 23, 2015, the Court granted certiorari in Montgomery v. Louisiana,
which presents the retroactivity of Miller and whether the Court has “jurisdiction to
decide whether the Supreme Court of Louisiana correctly refused to give retroactive
effect to” Miller. Montgomery v. Louisiana, 2015 WL 1280236, at *1 (U.S. Mar. 23,
2015).

                                         -3-
                                          A.

      Generally, “new constitutional rules of criminal procedure will not be
applicable to those cases which have become final before the new rules are
announced.” Teague v. Lane, 489 U.S. 288, 310 (1989). It is undisputed that Miller
announced a new rule and that Martin’s conviction became final before Miller. “A
new rule applies retroactively in a collateral proceeding only if (1) the rule is
substantive or (2) the rule is a watershed rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.” Whorton v.
Bockting, 549 U.S. 406, 416 (2007) (internal quotation marks and alteration omitted).

                                          1.

       Substantive rules “alter[] the range of conduct or the class of persons that the
law punishes,” but procedural rules “regulate only the manner of determining the
defendant’s culpability.” Schriro v. Summerlin, 542 U.S. 348, 353 (2004). New
substantive rules include “rules prohibiting a certain category of punishment for a
class of defendants because of their status or offense.” Penry v. Lynaugh, 492 U.S.
302, 330 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304,
321 (2002) (prohibiting execution of mentally retarded criminals).4 “Such rules apply
retroactively because they necessarily carry a significant risk that a defendant . . .
faces a punishment that the law cannot impose upon him.” Schriro, 542 U.S. at 352
(internal quotation marks omitted).


      4
        Atkins “was made retroactive to cases on collateral review by” Penry. Davis
v. Norris, 423 F.3d 868, 879 (8th Cir. 2005). See Penry, 492 U.S. at 330 (“[I]f we
held, as a substantive matter, that the Eighth Amendment prohibits the execution of
mentally retarded persons such as Penry regardless of the procedures followed, such
a rule would fall under the first exception to the general rule of nonretroactivity and
would be applicable to defendants on collateral review.”). Neither this court nor the
Supreme Court has ruled on the retroactivity of Roper and Graham.

                                         -4-
        Miller announced a procedural rule, not a substantive rule. The Court
eliminated mandatory life sentences without parole for juvenile homicide defendants;
it did not eliminate those sentences: “[W]e think appropriate occasions for sentencing
juveniles to this harshest possible penalty will be uncommon,” but “we do not
foreclose a sentencer’s ability to make that judgment in homicide cases . . . .” Miller,
132 S. Ct. at 2469. Thus, Miller does not prohibit a category of punishment (life
sentences without parole) for a class of defendants (juveniles) because of their status
(age). See Penry, 492 U.S. at 330. In other words, Martin does not “face[] a
punishment that the law cannot impose upon him.” See Schriro, 542 U.S. at 352.

      Martin argues that Miller is substantive because it eliminated “an entire line of
sentencing” and “created an expanded range of [sentencing] outcomes” by making
“age an element” for juvenile homicide defendants. This argument ignores the
Court’s characterization of Miller:

      Our decision does not categorically bar a penalty for a class of offenders
      or type of crime—as, for example, we did in Roper or Graham. Instead,
      it mandates only that a sentencer follow a certain process—considering
      an offender’s youth and attendant characteristics—before imposing a
      particular penalty.

Miller, 132 S. Ct. at 2471 (emphasis added). See Black’s Law Dictionary 1242 (8th
ed. 2004) (defining “process” as “[t]he proceedings in any action”); Webster’s
International Dictionary 1808 (3d ed. 1961) (defining “process” as “the course of
procedure in a judicial action”).

                                           2.

      A “watershed” rule “must be one ‘without which the likelihood of an accurate
conviction is seriously diminished.’” Schriro, 542 U.S. at 352, quoting Teague, 489
U.S. at 313. The “watershed” exception “is clearly meant to apply only to a small

                                          -5-
core of rules requiring observance of those procedures that . . . are implicit in the
concept of ordered liberty.” Beard v. Banks, 542 U.S. 406, 417 (2004), quoting
O’Dell v. Netherland, 521 U.S. 151, 157 (1997). The “new rule must itself constitute
a previously unrecognized bedrock procedural element that is essential to the fairness
of a proceeding.” Bockting, 549 U.S. at 421.

       The Court has never found a new procedural rule to be “watershed.” Johnson
v. Ponton, 2015 WL 924049, at *3 (4th Cir. Mar. 5, 2015). See, e.g., Gilmore v.
Taylor, 508 U.S. 333, 345 (1993) (rejecting as “watershed” new rule that jury
instructions in murder cases must allow for consideration of diminished mental state);
Butler v. McKellar, 494 U.S. 407, 416 (1990) (rejecting as “watershed” new rule
barring police-initiated interrogation after a request for counsel). Cf. Beard, 542 U.S.
at 417 (noting that Gideon v. Wainwright’s guarantee of right to counsel “might fall
within this exception”) (emphasis added).

       Miller is not a “watershed” rule of criminal procedure. It does not “constitute
a previously unrecognized bedrock procedural element that is essential to the fairness
of a proceeding.” See Bockting, 549 U.S. at 421. Rather, the Court recognized that
Miller “flow[ed] straightforwardly from our precedents.” Miller, 132 S. Ct. at 2471.
Nor does the absence of Miller seriously diminish “the likelihood of an accurate
conviction.” Schriro, 542 U.S. at 352 (emphasis added). Miller creates procedural
safeguards for sentencing juveniles; it says nothing about those defendants’
underlying convictions.

      Because Miller “is a new procedural rule that is not of watershed magnitude,
it cannot be applied retroactively to” Martin under the Teague exceptions. See
Burton v. Fabian, 612 F.3d 1003, 1011 (8th Cir. 2010).




                                          -6-
                                          B.

       According to Martin, Miller is retroactive because the Court granted relief to
Jackson on collateral review. See Miller, 132 S. Ct. at 2475. Martin and his amici
cite Teague:

      We can simply refuse to announce a new rule in a given case unless the
      rule would be applied retroactively to the defendant in the case and to
      all others similarly situated. We think this approach is a sound one.

Teague, 489 U.S. at 316 (citation omitted) (“Because a decision extending the fair
cross section requirement to the petit jury would not be applied retroactively to cases
on collateral review under the approach we adopt today, we do not address
petitioner’s claim.”).

       The Court’s reversal of Jackson’s case in Miller—without discussing
retroactivity—does not establish that Miller is retroactive to Martin. He ignores dicta
from this court, sitting en banc, that a rule is not retroactive “[a]bsent an express
pronouncement on retroactivity from the Supreme Court.” Moore v. Kinney, 320
F.3d 767, 771 n.3 (8th Cir. 2003) (en banc), citing Tyler v. Cain, 533 U.S. 656, 663
(2001) (holding that “a new rule is not made retroactive to cases on collateral review
unless the Supreme Court holds it to be retroactive”) (internal quotation marks
omitted). The Court has also implied that its application of a new rule on collateral
review does not necessitate that rule’s application to other cases on collateral review.
See Chaidez v. United States, 133 S. Ct. 1103, 1105 (2013) (declining to find
retroactive the new rule announced—and applied to petitioner seeking collateral
relief—in Padilla v. Kentucky, 559 U.S. 356, 359, 374 (2010), that counsel must
inform client that plea carries risk of deportation).




                                          -7-
                                          C.

       Martin argues that “Eighth Amendment cases are, by definition, retroactive.”
That is, “there is a fundamental unfairness in having a rule that only applies to cases
going forward” when the rule “is based on a fundamental characteristic of a group of
offenders” and when “our understanding of the characteristics of that group has
changed.”

       Martin cites no authority for this argument. Rather, the Court has held that
some remedies for Eighth Amendment violations are not retroactive. See, e.g., Beard,
542 U.S. at 408 (holding non-retroactive the new rule announced in Mills v.
Maryland, 486 U.S. 367, 384 (1988), and McKoy v. North Carolina, 494 U.S. 433,
444 (1990), that capital sentencing schemes requiring juries to disregard mitigating
factors not found unanimously are invalid); Sawyer v. Smith, 497 U.S. 227, 245
(1990) (holding non-retroactive the new rule announced in Caldwell v. Mississippi,
472 U.S. 320, 323 (1985), that jury cannot be “led to believe that responsibility for
determining the appropriateness of a death sentence rests not with the jury but with
the appellate court which later reviews the case”).

                                          D.

       This court’s holding that Miller does not apply retroactively on collateral
review is consistent with rulings from the other circuits to address the issue. See
Ponton, 2015 WL 924049, at *5 (“We therefore hold that the Supreme Court has not
held the Miller rule retroactively applicable, and that the Court’s holdings do not
dictate retroactivity because the rule is neither substantive nor a watershed rule of
criminal procedure.”). Cf. In re Morgan, 713 F.3d 1365, 1367-68 (11th Cir.)
(denying leave to file successive habeas petition based on Miller because Court has
not made Miller retroactive and because court disagreed “that Miller is necessarily
retroactive because any rule that expands the range of possible sentencing outcomes

                                         -8-
for a category of defendants by requiring that the sentencer have the option of
imposing a lesser sentence is substantive”), reh’g en banc denied, 717 F.3d 1186
(2013); Craig v. Cain, 2013 WL 69128, at *2-3 (5th Cir. Jan. 4, 2013) (per curiam)
(unpublished) (denying motion to reconsider denial of certificate of appealability in
light of Miller because Miller does not satisfy either Teague exception). But cf. In
re Simpson, 555 Fed. Appx. 369, 371 & n.2, 372 (5th Cir. 2014) (per curiam)
(acknowledging Craig but granting leave to file successive habeas petition based on
prima facie finding that Miller is retroactive).5

       State high courts are split. Five held that Miller is not retroactive. Ex parte
Williams, 2015 WL 1388138, at *13 (Ala. Mar. 27, 2015); People v. Carp, 852
N.W.2d 801, 832 (Mich. 2014); State v. Tate, 130 So. 3d 829, 841 (La. 2013);
Commonwealth v. Cunningham, 81 A.3d 1, 10 (Pa. 2013); Chambers v. State, 831
N.W.2d 311, 331 (Minn. 2013). Ten held that Miller is retroactive. See Falcon v.
State, 2015 WL 1239365, at *9 (Fla. Mar. 19, 2015); Aiken v. Byars, 765 S.E.2d 572,
578 (S.C. 2014); State v. Mares, 335 P.3d 487, 508 (Wyo. 2014); Petition of State,
103 A.3d 227, 236 (N.H. 2014); People v. Davis, 6 N.E.3d 709, 722-23 (Ill. 2014);
Ex parte Maxwell, 424 S.W.3d 66, 75 (Tex. Crim. App. 2014); State v. Mantich, 842
N.W.2d 716, 731 (Neb. 2014); Diatchenko v. Dist. Att’y for Suffolk Dist., 1 N.E.3d
270, 281 (Mass. 2013); State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Jones
v. State, 122 So. 3d 698, 703 (Miss. 2013).

      5
       This court has granted leave to file a successive habeas petition based on a
prima facie finding that Miller is retroactive when the government conceded
retroactivity. See Johnson v. United States, 720 F.3d 720, 720-21 (8th Cir. 2013)
(per curiam) (noting that “a prima facie showing in this context is simply a sufficient
showing of possible merit to warrant a fuller exploration by the district court,” not a
decision on the merits) (internal quotation marks omitted). See also, e.g., Williams
v. United States, No. 13-1731 (8th Cir. Aug. 29, 2013) (order) (granting without
comment leave to file successive habeas petition in light of Miller); Castillo v.
Legrand, 2015 WL 738342, at *1 (9th Cir. Feb. 23, 2015) (same).


                                         -9-
                                           II.

       Martin challenges the government’s strike of Juror 43, an African-American
man. “[T]he Equal Protection Clause forbids the prosecutor to challenge potential
jurors solely on account of their race.” Batson, 476 U.S. at 89.

      First, a defendant must make a prima facie showing that a peremptory
      challenge has been exercised on the basis of race. Second, if that
      showing has been made, the prosecution must offer a race-neutral basis
      for striking the juror in question. Third, in light of the parties’
      submissions, the trial court must determine whether the defendant has
      shown purposeful discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328-29 (2003) (internal citations omitted).

       Juror 43 said a cousin served time. Questioned by the court, Juror 43 said he
did not “know the facts of what happened,” but believed the cousin may have been
wrongly convicted because relatives said so. In a juror questionnaire asking for
opinions of the criminal justice system, Juror 43 wrote a question: “Do African
Americans/minorities receive the same treatment as non-minorities?” Orally, Juror
43 said he questioned whether minorities are “treated equally when there is a hearing
and when punishment or time to be served is fair.” Juror 43 also said “yes” when
asked whether he “generally” thought “persons of color are receiving harsher
punishments” and when asked whether he thought “there perhaps is some disparate
treatment based on race.”6 Questioned further by the court, Juror 43 said he and the
victim’s uncle work together in the Child Protection Department of Hennepin County.


      6
        Juror 43 answered “no” when asked, “Do you believe that your perceptions
about the criminal justice system and its equal or unequal treatment of persons of
color would affect your ability to be a fair and impartial juror if selected as a juror in
this case?”


                                          -10-
They occasionally say “hi” to each other and once spent 8-10 hours on a work-related
car ride.

       The government moved to strike Juror 43; the court denied it, but permitted the
government to question him. He revealed that his cousin’s conviction occurred in
Hennepin County and “had something to do with a punishment of his child or some
injuries.” Juror 43 also said he “had conversations with people who don’t seem to
understand why minorities are incarcerated for the length of time or for certain types
of crimes. . . . Am I taking it as a fact? No. But it is something that stays in my
mind.”

       The government renewed its strike, offering as bases that (1) Juror 43 “thinks
people of color receive harsher treatment, but has no basis for that, at least he’s not
articulating a basis,” and (2) Juror 43 believed his cousin may have been wrongly
convicted “but cannot articulate a basis for that other than” his family told him so.
(The government did not mention Juror 43’s association with the victim’s uncle.)
This time, the court sustained the strike, over Martin’s Batson challenge. Comparing
the jurors, the court concluded that Martin “failed to demonstrate purposeful
discrimination.” Reviewing for clear error, the Minnesota Supreme Court affirmed:

      The court supported its conclusions with findings that the responses of
      Juror 43 about the fairness of the criminal justice system toward African
      Americans and his cousin’s conviction were not “forthcoming.” The
      district court noted that Juror 43 did not provide specific reasons or facts
      underlying his views on these subjects. And the district court expressed
      concern that Juror 43 believed that his cousin may have been wrongfully
      convicted, and the juror worked with the victim’s uncle. On this record,
      we cannot say that the findings of the district court are clearly erroneous.
      We have consistently held that a family member’s involvement with the
      legal system is a legitimate race-neutral reason for the State to exercise
      a peremptory challenge.



                                         -11-
Martin, 773 N.W.2d at 103-04. Two justices dissented, concluding “that when the
views expressed by a prospective juror during voir dire are consistent with what this
court has found in its own review of whether African Americans are treated unfairly
in our judicial system, those views cannot constitute a legitimate non-discriminatory
reason that would support the juror’s exclusion.” Id. at 110 (Page, J., dissenting).

       A claim that “state courts unreasonably determined that the prosecutor’s strikes
were not motivated by race is a factual determination subject to the standard” from
28 U.S.C. § 2254(d)(2). Edwards v. Roper, 688 F.3d 449, 454 (8th Cir. 2012). This
court “must find the state-court conclusion ‘an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’” Rice v.
Collins, 546 U.S. 333, 338-39 (2006), quoting § 2254(d)(2). Further, “a state court’s
factual determinations ‘shall be presumed to be correct,’ and [Martin] has ‘the burden
of rebutting the presumption of correctness by clear and convincing evidence.’”
Edwards, 688 F.3d at 454, quoting § 2254(e)(1). “The standard is demanding but not
insatiable,” and “deference does not by definition preclude relief.” Miller-El v.
Dretke, 545 U.S. 231, 240 (2005) (“Miller-El II”) (internal quotation marks and
alteration omitted).

      Martin argues that (1) Juror 43’s concern about minorities’ experience in the
criminal justice system is not a race-neutral reason for striking him, and (2)
comparative juror analysis shows that the reasons for striking Juror 43 were not
“applied equally across the races.” In effect, Martin argues that the Minnesota
Supreme Court “unreasonably determined that the prosecutor’s strike[] [was] not
motivated by race.” See Edwards, 688 F.3d at 454. Martin does not dispute the state
court’s application of Batson, a legal question subject to a different standard. See id.,
citing § 2254(d)(1) (requiring state court decision be “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States”).


                                          -12-
      Martin’s first argument implicates Batson’s second step, which “does not
demand an explanation that is persuasive, or even plausible.” See Purkett v. Elem,
514 U.S. 765, 767-68 (1995) (per curiam). Rather, “the issue is the facial validity of
the prosecutor’s explanation. Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.” Id. at 768,
quoting Hernandez v. New York, 500 U.S. 352, 360, 371 (1991) (holding that “a
race-neutral reason . . . means a reason other than race”). It is not inherently
discriminatory to strike a juror because of his concern about minorities’ experience
in the criminal justice system. See id. A prosecutor could strike a white juror
expressing the same views. See United States v. Walley, 567 F.3d 354, 357 (8th Cir.
2009) (Batson inquiry “determine[s] whether the strike was based on the prospective
juror’s race”) (emphasis added).

       Martin’s second argument implicates Batson’s third step. “Striking a black
panelist for reasons that apply ‘just as well to an otherwise-similar nonblack who is
permitted to serve’ is evidence tending to prove purposeful discrimination.”
Edwards, 688 F.3d at 454, quoting Miller-El II, 545 U.S. at 241. This court upholds
“very fine” distinctions between jurors. United States v. Morrison, 594 F.3d 626,
630, 633 (8th Cir. 2010) (affirming strike of black juror because she had not been
forthcoming about family member’s legal troubles and because her husband had
drinking problem, while white juror served whose son had four DWI offenses), citing
United States v. Davis, 154 F.3d 772, 781 (8th Cir. 1998) (finding sufficient
difference between drug counselor and drug prevention volunteer). Cf. Snyder v.
Louisiana, 552 U.S. 472, 480, 483 (2008) (“implausibility” of striking black juror
with student-teaching obligations who indicated trial would cause scheduling
conflicts was “reinforced by the prosecutor’s acceptance of white jurors who
disclosed conflicting obligations that appear to have been at least as serious as” black
juror’s).




                                         -13-
        The Minnesota dissent noted that Juror 14, a white woman, served despite
initially responding “Yes” when the questionnaire asked for “any specific concerns
or complaints about the criminal justice system as it relates to its treatment of persons
of color.” Martin, 773 N.W.2d at 110 (Page, J., dissenting). Juror 14 crossed out
“Yes,” changed her answer to “No,” and wrote “I do not have any specific concerns,
but I do think it is biased against people of color.” Id. However, Martin did not
object when the trial court said that Juror 14 “responded in the questionnaire that she
thinks the jury system in this country is a fair system. Whereas [Juror 43] responded
that he does not think the jury system in this country is a fair system.” Martin next
notes that Juror 64, a white man, served despite previously working in the same
location as the victim’s aunt. Juror 43 works with the victim’s uncle (and the two
once spent 8-10 hours in a car). Martin finally notes that five white jurors served
despite personal or family involvement in the criminal justice system. But Martin
presents no evidence that any of them had concerns like Juror 43’s questions about
his cousin’s conviction. In sum, Martin “has not identified one juror who shared each
of the qualities that the government cited as a reason for dismissing” Juror 43. See
Morrison, 594 F.3d at 633. He fails to satisfy his “burden of rebutting the
presumption of correctness by clear and convincing evidence.” § 2254(e)(1).

      The Minnesota Supreme Court did not unreasonably determine that the trial
court properly rejected Martin’s Batson challenge.

                                     *******
      The judgment is affirmed.
                     ______________________________




                                          -14-
