                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0298p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 HOWARD ATKINS,                                          ┐
                                 Petitioner-Appellant,   │
                                                         │
                                                          >      No. 18-6012
        v.                                               │
                                                         │
                                                         │
 GEORGIA CROWELL, Warden,                                │
                                Respondent-Appellee.     │
                                                         ┘

                         Appeal from the United States District Court
                     for the Western District of Tennessee at Memphis.
                    No. 2:09-cv-02297—Sheryl H. Lipman, District Judge.

                            Decided and Filed: December 17, 2019

              Before: COLE, Chief Judge; SILER and MURPHY, Circuit Judges.
                                   _________________

                                          COUNSEL

ON BRIEF: Michael J. Stengel, MICHAEL J. STENGEL, P.C., Memphis, Tennessee, for
Appellant. Michael M. Stahl, OFFICE OF THE TENNESSEE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.

        MURPHY, J., delivered the opinion of the court in which COLE, C.J., and SILER, J.,
joined. COLE, C.J. (pp. 7–10), delivered a separate concurring opinion.
                                      _________________

                                           OPINION
                                      _________________

       MURPHY, Circuit Judge. A Tennessee jury convicted Howard Atkins of murdering his
stepfather in 2000 when he was just 16 years old. A state court imposed a life sentence that (all
now agree) renders Atkins eligible for release after at least 51 years’ imprisonment. See Brown
v. Jordan, 563 S.W.3d 196, 197, 200–02 (Tenn. 2018) (discussing Tenn. Code Ann. § 40-35-
 No. 18-6012                              Atkins v. Crowell                                 Page 2


501(h)–(i)). His conviction and sentence were affirmed on direct appeal. State v. Atkins, No.
W2001-02427-CCA-R3-CD, 2003 WL 21339263 (Tenn. Crim. App. May 16, 2003).

       Years later, the Supreme Court held that a sentence of “mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’” Miller v. Alabama, 567 U.S. 460, 465 (2012). (The Court
concluded that Miller applies retroactively in Montgomery v. Louisiana, 136 S. Ct. 718 (2016).)
Atkins sought to benefit from Miller in state post-conviction proceedings. He argued that the life
sentence he received as a 16-year-old also qualified as a “cruel and unusual” punishment under
the Eighth Amendment. A state appellate court rejected his claim. It distinguished Miller
because, unlike the juveniles in that case, Atkins could be released after 51 years’ imprisonment
and so was “not serving a sentence of life without the possibility of parole.” Atkins then turned
to the federal courts with his Eighth Amendment claim. The district court denied relief too, but
issued a certificate of appealability for us to consider whether the state court reasonably
distinguished Miller under the governing standards for federal habeas relief in 28 U.S.C.
§ 2254(d)(1).

       Section 2254(d)(1) prohibits a federal habeas court from upending a state criminal
judgment unless a state court’s rejection of a constitutional claim was “contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” The Supreme Court has repeatedly reminded the circuit courts that
this statutory test “is difficult to meet.” White v. Woodall, 572 U.S. 415, 419 (2014) (citation
omitted). The statute’s “clearly established” language allows a court to grant relief based only
on “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” Id. (citation
omitted).

       So we must start by identifying Miller’s holding. At first glance, that task looks easy
because Miller expressly (and repeatedly) stated its holding. The Court said at the outset: “[w]e
therefore hold that mandatory life without parole for those under the age of 18 at the time of their
crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”
Miller, 567 U.S. at 465. It later repeated the same message: “[w]e therefore hold that the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility of
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parole for juvenile offenders.” Id. at 479. For good measure, the Court also described what it
was not holding. Since the case involved state laws that made life without parole the mandatory
sentence for the juvenile defendants, id. at 466–69, the Court did not need to decide whether the
Eighth Amendment imposed a “categorical bar on life without parole for juveniles,” id. at 479.
It held only that the Eighth Amendment prohibits states from requiring an automatic life-
without-parole sentence without giving sentencing courts discretion to consider a juvenile’s
youth when deciding whether to impose “that harshest prison sentence.” Id. In other words,
Miller did “not categorically bar a penalty for a class of offenders”; it “mandate[d] only that a
sentencer follow a certain process—considering an offender’s youth and attendant
characteristics—before imposing” a life-without-parole sentence. Id. at 483.

        A later case complicates things. Despite Miller’s disclaimers about its reach, the Court in
Montgomery described the decision more broadly when concluding that “Miller announced a
substantive rule that is retroactive in cases on collateral review.” 136 S. Ct. at 732. According to
Montgomery, Miller in fact “rendered life without parole an unconstitutional penalty for ‘a class
of defendants because of their status’—that is, juvenile offenders whose crimes reflect the
transient immaturity of youth.” Id. at 734 (citation omitted). “Miller did bar life without
parole,” Montgomery added, “for all but the rarest of juvenile offenders, those whose crimes
reflect permanent incorrigibility.” Id. Montgomery thus found that “Miller drew a line between
children whose crimes reflect transient immaturity and those rare children whose crimes reflect
irreparable corruption.” Id. Only the latter may receive a life-without-parole sentence. Id. The
Court will soon decide whether Montgomery expanded Miller’s holding (and whether any such
expansion can be applied retroactively). See Mathena v. Malvo, 139 S. Ct. 1317 (2019) (granting
certiorari).

        For our purposes, though, Miller’s precise scope does not matter. Atkins cannot obtain
relief under § 2254(d)(1) even if Miller more broadly prohibited life-without-parole sentences for
juveniles who are not permanently incorrigible. Montgomery, 136 S. Ct. at 734. Either way, the
state court’s holding—that a chance for release after 51 years removes Atkins’s sentence from
Miller’s orbit—was neither “contrary to” nor an “unreasonable application” of Miller. 28 U.S.C.
§ 2254(d)(1).
 No. 18-6012                              Atkins v. Crowell                                Page 4


       Start with the “contrary to” language. A state court’s decision is “contrary to” a Supreme
Court holding only if “the state court applies a rule different from the governing law set forth in”
the Supreme Court’s decision, “or if it decides a case differently than [the] Court has done on a
set of materially indistinguishable facts.”    Bell v. Cone, 535 U.S. 685, 694 (2002) (citing
Williams v. Taylor, 529 U.S. 362, 405–06 (2000)). The state court did nothing of the sort here.
Whether read broadly or narrowly, Miller creates a legal rule about life-without-parole sentences.
And, whether one looks at Atkins’s sentence formally or functionally, he did not receive a life-
without-parole sentence. He will be eligible for release after at least 51 years’ imprisonment.
See Brown, 563 S.W.3d at 197. Miller’s holding simply does not cover a lengthy term of
imprisonment that falls short of life without parole. See Starks v. Easterling, 659 F. App’x 277,
280–81 (6th Cir. 2016); cf. Bunch v. Smith, 685 F.3d 546, 551 (6th Cir. 2012). Similarly, the
facts of Atkins’s case (the possibility of release after 51 years’ imprisonment) materially
distinguish it from the facts of Miller (no possibility of release). Cf. Lockyer v. Andrade, 538
U.S. 63, 74 & n.1 (2003).

       Nor was the state court’s decision an “unreasonable application” of Miller. A state
decision cannot have unreasonably applied a Supreme Court precedent if a habeas petitioner
needs a federal court “to extend that precedent” to obtain relief. Woodall, 572 U.S. at 426.
Atkins needs that type of extension here. He asks us to expand Miller’s holding to cover life
sentences that include a lengthy prison term before any potential release. “‘Perhaps the logical
next step from’” Miller would be to hold that a life sentence without any chance of parole
for 51 years “does not satisfy the Eighth Amendment, but ‘perhaps not.’” Virginia v. LeBlanc,
137 S. Ct. 1726, 1729 (2017) (per curiam) (citation omitted). After all, Miller reasoned that life-
without-parole sentences are unique, noting that they “share some characteristics with death
sentences that are shared by no other sentences.” Miller, 567 U.S. at 474 (quoting Graham v.
Florida, 560 U.S. 48, 69 (2010)). The portion of Miller tailored to life-without-parole sentences
shows that there is at least a “reasonable argument” that it applies only to those types of
sentences.   Demirdjian v. Gipson, 832 F.3d 1060, 1076 (9th Cir. 2016).            That reasonable
argument forecloses any claim that the state court acted unreasonably under § 2254(d)(1).
 No. 18-6012                             Atkins v. Crowell                               Page 5


       All told, Miller emphasized the “without parole” component of its holding five times.
See 567 U.S. at 465, 470, 477, 479, 489. A “limitation thus emphasized is one the state courts
may honor, with relatively little fear of being found ‘objectively unreasonable’ for doing so.”
Mendoza v. Berghuis, 544 F.3d 650, 655 (6th Cir. 2008).

       Atkins resists this conclusion. According to him, Miller held that all juvenile sentences
“must provide ‘some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.’” Miller, 567 U.S. at 479 (quoting Graham, 560 U.S. at 75). This reading
would dramatically expand Miller’s scope and create significant uncertainty to boot. How many
years may a sentence extend before juveniles must receive their first parole hearing? Atkins
does not say. If Miller intended the broad reach that he proposes, we would have expected clear
language to that effect along with guidance for lower courts on how to implement the Court’s
holding.   But the language from Miller that Atkins highlights can be found only in a
parenthetical immediately following a “Cf.” citation to Graham (signaling a comparison). Id.
Just as Congress does not “alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions,” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001), so too we do
not think the Supreme Court alters its expressed holdings in parentheticals attached to case
citations. Neither Congress nor the Supreme Court “hide[s] elephants in mouseholes.” Id.

       Atkins also relies on decisions extending Miller to hold that even life sentences with the
possibility of parole can violate the Eighth Amendment. But none of Atkins’s decisions—a mix
of state-court and district-court cases—addressed this Eighth Amendment question under
§ 2254(d)(1)’s constraints. See, e.g., People v. Buffer, 75 N.E.3d 470, 477–85 (Ill. App. Ct.
2017). And when interpreting § 2254(d)(1), the Supreme Court has told us that these types of
cases may not be “used to refine or sharpen a general principle of Supreme Court jurisprudence
into a specific legal rule that [the Supreme] Court has not announced.” Marshall v. Rodgers, 569
U.S. 58, 64 (2013) (per curiam); see Kernan v. Cuero, 138 S. Ct. 4, 9 (2017) (per curiam). They
thus say nothing, for purposes of § 2254(d)(1), about what Miller clearly established.
 No. 18-6012                              Atkins v. Crowell                                Page 6


                                             * * *

       We have previously described the facts surrounding Atkins’s murder of his stepfather.
Atkins v. Holloway, 792 F.3d 654, 655–56 (6th Cir. 2015). Atkins alleged that his stepfather
“regularly abused him and his mother.” Id. at 655. And on the night of the murder, he returned
home to “the sounds of his mother[’s] crying . . . audible from outside.” Atkins, 2003 WL
21339263, at *1. Reasonable people can debate a sentencing policy that did not give the 16-
year-old Atkins any opportunity for release for 51 years. But that policy debate falls outside our
mandate. The Constitution and § 2254(d)(1) make our role far different from that of the state
legislature, the state sentencing court, or even the state appellate court that considered Atkins’s
constitutional claim. Finding that the state appellate court reasonably distinguished Miller, we
grant Atkins’s motion to proceed in forma pauperis but affirm the denial of relief.
 No. 18-6012                               Atkins v. Crowell                                 Page 7


                                       _________________

                                        CONCURRENCE
                                       _________________

       COLE, Chief Judge, concurring. On occasion, AEDPA’s onerous standards require us to
deny a habeas petitioner’s application for relief even though the sentence he received is
unconstitutional. This outcome is most troubling in cases like Atkins’s, where Supreme Court
precedent—when properly applied—compels the conclusion that the state violated the
petitioner’s constitutional rights. But although Congress has tied our hands when it comes to
Atkins’s sentence, it may not be too late for juveniles who appeal their sentences on direct
review. I thus write separately to explain why I conclude that the Supreme Court has banned the
practice of sentencing a child to de facto life without parole.

       To determine whether a sentence violates the Eighth Amendment’s prohibition on “cruel
and unusual punishments” courts must look to “the evolving standards of decency that mark the
progress of a maturing society.” Graham v. Florida, 560 U.S. 48, 58 (2010) (quoting Estelle v.
Gamble, 429 U.S. 97, 102 (1976)). In the last decade and a half, the Supreme Court has
recognized and reified an emerging standard of decency: when it comes to punishment, children
are different, and sentencing courts must take those differences into account. First, in Roper, the
Court held that it was cruel and unusual to execute children under the age of 18. Roper v.
Simmons, 543 U.S. 551, 568 (2005). Its conclusion was based on a host of factors, including the
diminished mental capacity of minors, their vulnerability and inability to control their
surroundings, and the plasticity of their identities relative to adults. Id. at 569–70. So, the Court
concluded, “[f]rom a moral standpoint it would be misguided to equate the failings of a minor
with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be
reformed.” Id. at 570.

        This theme—that children have diminished culpability and heightened capacity for
reform—redounds throughout the subsequent series of cases focusing on sentences short of the
death penalty. In Graham, the Court held that the Eighth Amendment forbids the sentence of life
without parole for juvenile non-homicide offenders, observing that “[w]hat the State must do . . .
 No. 18-6012                              Atkins v. Crowell                                 Page 8


is give [juvenile] defendants . . . some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” 560 U.S. at 74–75. In Miller, the Court went further,
holding that for all but the rarest of juvenile offenders, “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole” because, “[b]y
making youth (and all that accompanies it) irrelevant to imposition of that harshest prison
sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller v.
Alabama, 567 U.S. 460, 479 (2012). Finally, the Montgomery court, in holding that Miller had
retroactive effect, crystallized the rule that life without parole constitutes excessive punishment
for all non-incorrigible juveniles because “the penological justifications for life without parole
collapse in light of ‘the distinctive attributes of youth.’” Montgomery v. Louisiana, 136 S.Ct.
718, 734 (2016) (quoting Miller, 567 U.S. at 472).

       That leaves the question of what to do with cases where a juvenile defendant is sentenced
to life with the possibility of parole arising only after an extraordinarily lengthy term of years
that may reach or exceed the defendant’s life expectancy. These types of sentences—where a
child can be expected to spend the remainder of her life behind bars—constitute de facto life
without parole. And the logic of Roper, Graham, Miller, and Montgomery ineluctably extends
not only to de jure life without parole sentences but also to de facto ones: both types of sentences
deny a child offender a chance to return to society. To hold otherwise would lead to the absurd
result of permitting sentencing courts to circumvent Miller by sentencing juveniles to a term of
years that exceeds the juvenile’s projected lifespan. Surely this is not what the Supreme Court
intended when it said that it was a “foundational principle” that “imposition of a State’s most
severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller,
567 U.S. at 474.

       It is true, as the majority notes, that Miller repeatedly uses the phrase “without parole” to
describe the category of life sentences that it determined was unconstitutional. (Maj. Op. at 5).
But the Miller Court did not hang its reasoning on whether a state court formally designated a
sentence as one involving “life without parole.”         Instead, it targeted as unconstitutional
punishments that “[i]mprison[ ] an offender until he dies” and “alter[ ] the remainder of his life
‘by a forfeiture that is irrevocable.’” Miller, 567 U.S. at 474–75 (quoting Graham, 560 U.S. at
 No. 18-6012                               Atkins v. Crowell                                Page 9


69). Thus, to reach the conclusion that the Supreme Court has already opined that sentencing
courts may not impose a term-of-years sentence on a juvenile that exceeds the juvenile’s life
expectancy, one need not search for elephants in mouseholes. One need only recognize that the
Court has spoken with clarity on a simple yet profound moral principle: it defies decency to
sentence a child to die in prison without considering the fact that he is a child. I therefore must
conclude that, under established precedent, it is unconstitutional for a court to sentence a child to
a term of imprisonment with no meaningful opportunity for release and no meaningful
consideration of his or her chances of rehabilitation.

       An ever-increasing number of courts have also reached this conclusion. In Starks v.
Easterling, Judge White, concurring, observed that state courts in California, Colorado,
Connecticut, Florida, Iowa, Mississippi, Washington, and Wyoming have all rejected “as cruel
and unusual lengthy sentences that approach or exceed a [juvenile] defendant’s life expectancy,
regardless whether that sentence bears the title ‘life without parole.’” Starks v. Easterling,
659 F. App’x 277, 283 (6th Cir. 2016) (White, J., concurring). In the wake of Starks, other states
have added to this chorus. See, e.g., State v. Zuber, 152 A.3d 197, 212–13 (N.J. 2017) (“The
term-of-years sentences in these appeals—a minimum of 55 years’ imprisonment for Zuber and
68 years and 3 months for Comer—are not officially ‘life without parole.’ But we find that the
lengthy term-of-years sentences imposed on the juveniles in these cases are sufficient to trigger
the protections of Miller under the Federal and State Constitutions.”) So, too, have federal
circuit courts—some, on habeas review—concluded that the Constitution prohibits the
imposition of de facto life without parole sentences on minors. Budder v. Addison, 851 F.3d
1047, 1059 (10th Cir. 2017) (reversing the denial of habeas relief where a juvenile was sentenced
to serve at least 131.75 years in prison because the sentence did not “provide him a realistic
opportunity for release”); McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016) (holding that “the
logic of Miller applies” to a 100-year sentence because it was for “such a long term of years
(especially given the unavailability of early release) as to be—unless there is a radical increase,
at present unforeseeable, in longevity within the next 100 years—a de facto life sentence”);
Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013) (holding, on habeas review, that a state
court’s imposition of a lengthy term-of-years sentence that left a juvenile offender with “no hope
 No. 18-6012                              Atkins v. Crowell                                Page 10


of reentering society” was irreconcilable with Graham and therefore unconstitutional under
clearly established law).

          But despite the ever-growing body of precedent, as the majority correctly notes, under
AEDPA we may grant relief only if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Even if a petitioner demonstrates that a
state court incorrectly interpreted Supreme Court case law, his petition still may not meet this
exacting standard: “To satisfy this high bar, a habeas petitioner is required to ‘show that the state
court’s ruling . . . was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.’” Woods v.
Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
“Surely no fairminded jurist could conclude that a sentence mandating a hundred years in prison
is anything other than life without parole, and drawing that distinction based on the wording of a
defendant’s sentence—life, life without parole, or a term of years—would be an unreasonable
application of Graham and Miller.” Starks, 659 F. App’x at 284 (White, J., concurring). But
because it is possible that fairminded jurists could disagree as to whether Atkins’s sentence of
life with the possibility of parole in 51 years is a de facto sentence of life without parole
inconsistent with Graham, Miller, and Montgomery, AEDPA requires us to affirm the denial of
relief.
