              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                      NO. AP-76,964


                       EX PARTE TERRELL MAXWELL, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                          CAUSE NO. D-1-DC-08-300490
                           FROM TRAVIS COUNTY


     COCHRAN, J., delivered the opinion of the Court in which MEYERS, PRICE,
JOHNSON and ALCALA, JJ., joined. WOMACK, J., filed a dissenting opinion in which
KELLER, P.J., joined. KEASLER, J., filed a dissenting opinion in which KELLER, P.J.,
and HERVEY, J., joined.

                                      OPINION

       In his application for a writ of habeas corpus, applicant claims that his mandatory

sentence of life imprisonment without the possibility of parole, for a crime he committed as

a juvenile, violates the Eighth and Fourteenth Amendments to the United States Constitution

under Miller v. Alabama.1 In that case, the Supreme Court held that a mandatory “life

without parole” sentence for a defendant who was under the age of 18 at the time of his crime

       1
           132 S. Ct. 2455 (2012).
                                                                      Ex parte Maxwell     Page 2

violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Applicant’s

sentence was imposed, and his conviction affirmed on direct appeal, before the Supreme

Court announced its decision in Miller. We ordered that this application be filed and set to

decide if Miller v. Alabama applies retroactively to a claim raised in a post-conviction

proceeding, and, if so, what remedy is appropriate.2 Because we find that the Miller court

announced a new substantive rule under the first Teague exception, we hold that it applies

retroactively. We will grant relief, and remand for further sentencing proceedings not

inconsistent with Miller v. Alabama.

                                                I.

       A jury convicted applicant of the offense of capital murder. The jury heard evidence

that, on the night of December 15, 2007, the 17-year-old applicant, along with Rashad Dukes

and Michael Jamerson, were “smoking weed and watching movies” when applicant

suggested robbing somebody. Applicant had a revolver that was “all black” except for a

“pearl white handle”–“kind of a cowboy-looking gun.” They drove Jamerson’s car to an

apartment complex chosen “because that is where the dope dealers and Mexicans were.”

When they arrived at the complex, they sat in the car for several minutes. Applicant

announced that he would shoot the person they robbed if that person did not give them

money.

       2
         Ex parte Maxwell, No. AP–76964, 2013 WL 458168, *1 (Tex. Crim. App. Feb. 6, 2013)
(not designated for publication). Applicant raised several other issues in his writ application,
including ineffective assistance of counsel and various evidentiary matters, but we summarily deny
those claims.
                                                                          Ex parte Maxwell      Page 3

        The trio then got out of the car and approached Fernando Santander, who was sitting

in a parked van. Applicant held his gun to Mr. Santander’s cheek and demanded that he

“give him his money.” Visibly scared, Mr. Santander “put up his hands out of shock.”

According to Dukes, “[T]hat’s when [applicant] shot him.” Immediately thereafter, applicant

and his accomplices “all took off running at the same time.” They returned to Jamerson’s

car and drove away. Applicant told the others that “he didn’t mean to do it” and that “it was

an accident.” Mr. Santander’s body was discovered by friends early the next morning,

slumped across the center console of the van. A .44 caliber jacket fragment was recovered

from the parking lot near the van. A “tipster” led officers to the three suspects. Dukes and

Jamerson confessed and testified against applicant in his capital murder trial.

       Because applicant was 17 at the time he committed the murder, the State did not seek

the death penalty, and punishment was automatically assessed at life imprisonment without

the possibility of parole.3 The Third Court of Appeals rejected applicant’s claim that his

automatic sentence violated the Eighth Amendment because he had never raised that claim



       3
          TEX. PENAL CODE §§ 19.03(a)(2) & 12.31(a) (2009). Until 2005, an individual adjudged
guilty of a capital felony in a case in which the State did not seek the death penalty was punished by
life. TEX. PENAL CODE § 12.31(a) (2003). From 2005 to 2009, such an individual was punished by
life without parole. TEX. PENAL CODE § 12.31(a) (2005-2007). From 2009 to 2013, the sentence
was (1) life, if the individual’s case was transferred to the district court under Section 54.02, Family
Code; or (2) life without parole. TEX. PENAL CODE § 12.31(a) (2009-2011). Section
12.31(a)–amended in response to Miller–now provides that “[a]n individual adjudged guilty of a
capital felony in a case in which the state does not seek the death penalty shall be punished by
imprisonment in the Texas Department of Criminal Justice for: (1) life, if the individual committed
the offense when younger than 18 years of age; or (2) life without parole, if the individual committed
the offense when 18 years of age or older.” TEX. PENAL CODE § 12.31(a) (2013).
                                                                         Ex parte Maxwell      Page 4

in the trial court.4 It affirmed his conviction and sentence in 2010.5

                                                  II.

A.     Miller v. Alabama.

       On June 25, 2012, after applicant’s conviction became final, the United States

Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates

life in prison without possibility of parole for juvenile offenders.”6 In deciding the issue, the

Court consolidated two cases: Miller, an Alabama case on direct appeal, and Jackson v.

Hobbs, an Arkansas case on collateral review. Both cases involved 14-year-old boys

convicted of first-degree murder and sentenced to mandatory life in prison without parole.7

       The Court held that “[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




       4
        Maxwell v. State, No. 03-09-00027-CR, 2010 WL 4595702, *9 (Tex.App.—Austin Nov.
12, 2010, pet. ref’d) (not designated for publication).
       5
           Id.
       6
           Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).
       7
          See id. at 2460. In the Arkansas case, Kuntrell Jackson and two other boys, one armed with
a sawed-off shotgun in his coat sleeve, robbed a video store. When the clerk threatened to call the
police, one of Jackson’s accomplices shot and killed her. The three boys fled empty-handed. Id. at
2461. In the Alabama case, Evan Miller and his friend Colby Smith smoked marijuana and played
drinking games with Cole Cannon, a neighbor, until Cannon passed out. Miller stole his wallet,
splitting about $300 with his friend, but when he tried to put the wallet back in Cannon’s pocket,
Cannon woke up and grabbed Miller by the throat. Smith beat Cannon with a baseball bat to make
him let go of Miller, who then grabbed the bat and repeatedly struck Cannon with it. The boys then
retreated to Miller’s trailer, but they soon returned to Cannon’s trailer and lit two fires to cover up
evidence of their crime. Cannon eventually died from his injuries and smoke inhalation. Id. at 2462.
                                                                  Ex parte Maxwell       Page 5

disproportionate punishment.”8 It stated that those determining the sentence of a juvenile

must take into account the offender’s “age and the wealth of characteristics and

circumstances attendant to it.”9 Under a mandatory “life without parole” sentencing scheme,

the factfinder cannot consider a juvenile’s

       chronological age and its hallmark features—among them, immaturity,
       impetuosity, and failure to appreciate risks and consequences. It prevents
       taking into account the family and home environment that surrounds him—
       and from which he cannot usually extricate himself—no matter how brutal or
       dysfunctional. It neglects the circumstances of the homicide offense, including
       the extent of his participation in the conduct and the way familial and peer
       pressures may have affected him. Indeed, it ignores that he might have been
       charged and convicted of a lesser offense if not for incompetencies associated
       with youth—for example, his inability to deal with police officers or
       prosecutors (including on a plea agreement) or his incapacity to assist his own
       attorneys. And finally, this mandatory punishment disregards the possibility of
       rehabilitation even when the circumstances most suggest it.10

The Court did not foreclose the option of a “life without parole” sentence for juvenile

murderers, but Miller requires the sentencer to consider “how children are different, and how

those differences counsel against irrevocably sentencing them to a lifetime in prison.”11

Therefore, the “appropriate occasions for sentencing juveniles to this harshest possible

penalty will be uncommon,” because it is difficult to distinguish “between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile


       8
           Id. at 2469.
       9
           Id. at 2467.
       10
            Id. at 2468 (citations omitted).
       11
            Id. at 2469.
                                                                     Ex parte Maxwell     Page 6

offender whose crime reflects irreparable corruption.”12

B.     Retroactivity under Teague v. Lane.

       In Teague and its progeny, the Supreme Court laid out the framework to decide

whether a “new rule” announced in one of its opinions should be applied retroactively to

criminal convictions that were already final on direct review. Under the Teague framework,

a “new rule” applies retroactively in a collateral proceeding only if the rule (1) is substantive

or (2) is a “watershed” rule of criminal procedure.13

       New substantive rules “apply retroactively because they ‘necessarily carry a

significant risk that a defendant stands convicted of an act that the law does not make

criminal’ or faces a punishment that the law cannot impose upon him” because of his status

or offense.14 Watershed rules of criminal procedure also apply retroactively because those

rules implicate “the fundamental fairness and accuracy of the criminal proceeding.”15 But a

new “watershed” procedural rule “must be one ‘without which the likelihood of an accurate

conviction is seriously diminished.’ This class of rules is extremely narrow,” and it is

unlikely that any more new ones will emerge.16


       12
            Id. (quotations marks omitted).
       13
            Whorton v. Bockting, 549 U.S. 406, 416 (2007).
       14
          Schriro v. Summerlin, 542 U.S. 348, 351, 352 (2004) (emphasis added) (quoting Bousley
v. United States, 523 U.S. 614, 620 (1998)).
       15
            Saffle v. Parks, 494 U.S. 484, 495 (1990).
       16
        Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (quoting Saffle, 494 U.S. at 505). In
Summerlin, the Court explained that new procedural rules
                                                                        Ex parte Maxwell      Page 7

        Although the United States Supreme Court held in Danforth v. Minnesota17 that state

courts need not utilize the Teague retroactivity rule, we follow Teague as a general matter

of state habeas practice,18 and we will not deviate from our precedent in this instance.

                                                III.

       Federal and state courts across the country have struggled with the issue of whether

Miller applies retroactively to post-conviction proceedings.19 For example, the Eleventh



         do not produce a class of persons convicted of conduct the law does not make
         criminal, but merely raise the possibility that someone convicted with use of the
         invalidated procedure might have been acquitted otherwise. Because of this more
         speculative connection to innocence, we give retroactive effect to only a small set of
         “‘watershed rules of criminal procedure’ implicating the fundamental fairness and
         accuracy of the criminal proceeding.”
Id. (citations omitted). As the Louisiana Supreme Court stated in State v. Tate, ___ So. 3d. __, 2013
WL 5912118 (La. 2013), the exception for “watershed” rules of criminal procedure
         “is extremely narrow,” and since its decision in Teague, the Supreme Court has
         “rejected every claim that a new rule satisfied the requirements for watershed status.”
         In fact, the Court has indicated “it is unlikely that any” watershed rules have “‘yet to
         emerge.’” The only case ever to satisfy this high threshold is Gideon v. Wainwright,
         in which the Court “held that counsel must be appointed for any indigent defendant
         charged with a felony” because “[w]hen a defendant who wishes to be represented
         by counsel is denied representation, Gideon held, the risk of an unreliable verdict is
         intolerably high. The new rule announced in Gideon eliminated this risk.” Therefore,
         it is not enough that a new rule is aimed at improving the accuracy of trial, or even
         that it promotes the objectives of fairness and accuracy; the rule must institute
         procedures implicit in the concept of ordered liberty to come within this exception.
Id. at *7 (citations omitted).
       17
            552 U.S. 264, 280–81 (2008).
       18
            Ex Parte De Los Reyes, 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).
       19
          See Miller, 132 S. Ct. at 2471 (“By our count, 29 jurisdictions (28 States and the Federal
Government) make a life-without-parole term mandatory for some juveniles convicted of murder in
adult court.”). A considerable number of those jurisdictions have weighed in on the retroactivity
issue, but no consensus has emerged.
                                                                         Ex parte Maxwell      Page 8

Circuit and the Louisiana, Pennsylvania, and Minnesota Supreme Courts, and some lower

federal and state courts have all held that Miller is not retroactive.20 However, the First,

Second, Third, Fourth, and Eighth Circuits have held that habeas applicants successfully

made out a prima facie case that Miller is retroactive, and they have granted motions to file

successive habeas corpus petitions raising Miller claims.21 The Fifth Circuit has so far split

the baby: One panel has found a prima facie showing that Miller satisfies the test for

retroactivity; another has not.22 The Nebraska, Massachusetts, Iowa, and Mississippi high

courts, as well as several lower state and federal courts, have also held that Miller is

retroactive.23

       20
          In re Morgan, 713 F. 3d 1365 (11th Cir. 2013); Martin v. Symmes, ___ F. Supp. ___, 2013
WL 5653447, *16 (D. Minn. 2013); State v. Tate, ___ So.3d ___, 2013 WL 5912118, *6-9 (La.
2013); Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013); Chambers v. State, 831 N.W.2d
311, 331 (Minn. 2013); People v. Carp, 828 N.W.2d 685, 711-14 (Mich. Ct. App. 2012, pet.
granted); Geter v. State, 115 So. 3d 375, 385 (Fla. Dist. Ct. App. 2012).
       21
            In re Pendleton, 732 F.3d 280, 282-83 (3d Cir. 2013) (per curium) (“After extensive
briefing and oral argument, we conclude that Petitioners have made a prima facie showing that
Miller is retroactive. In doing so, we join several of our sister courts of appeals. See, e.g., Wang v.
United States, No. 13–2426 (2nd Cir. July 16, 2013) (granting motion to file a successive habeas
corpus petition raising a Miller claim); In re James, No. 12–287 (4th Cir. May 10, 2013) (same);
Johnson v. United States, 720 F.3d 720 (8th Cir. 2013) (per curiam) (same).”).
       22
          In re Simpson, No. 13–40718, 2014 WL 494816 (5th Cir. Feb. 7, 2014) (per curiam)
(“[W]e find that the Supreme Court’s actions in Miller and the procedural posture of Miller itself
satisfy Simpson’s burden to make a prima facie showing that his petition rests on a new rule of law
made retroactive by the Supreme Court on collateral review.”) (not designated for publication);
Craig v. Cain, No. 12–30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (per curiam) (“Miller does not
satisfy the test for retroactivity because it does not categorically bar all sentences of life
imprisonment for juveniles”) (not designated for publication).
       23
          State v. Mantich, ___ N.W.2d ___, 2014 WL 503134 (Neb. 2014); Diatchenko v. District
Attorney for Suffolk Dist., 1 N.E. 3d 270 (Mass. 2013); State v. Ragland, 836 N.W.2d 107, 114-17
(Iowa 2013); Jones v. State, 122 So.3d 698, 703 (Miss. 2013); Alejandro v. United States, ___ F.
                                                                          Ex parte Maxwell      Page 9

        The competing arguments over the retroactivity issue focus largely on whether the

Miller decision–which virtually everyone agrees announces a “new rule”–falls under the first

Teague exception: Is the new rule announced in Miller a “substantive” one prohibiting a

certain category of punishment for a class of defendants because of their status or offense?24

        Those courts holding that Miller is not retroactive strictly construe that first Teague

exception–a new substantive rule of law–to apply only when the new rule entirely removes

a particular punishment from the list of punishments that may be constitutionally imposed

on a class of defendants,25 not when a rule addresses the considerations for determining a


Supp. ___, 2013 WL 4574066, *1 (S.D.N.Y. 2013) (“Because Miller announced a new rule of
constitutional law that is substantive rather than procedural, that new rule must be applied
retroactively on collateral review.”; “Having been authorized by the Second Circuit to adjudicate
Alejandro’s latest § 2255 motion, the Court must apply the new rule announced in Miller to his case.
Since Alejandro was under 18 years old at the time of the commission of his crimes, Miller clearly
applies to Alejandro’s sentence and compels this Court to set aside his sentence and to resentence
him in conformity with the new law.”); Toye v. State, ___ So.3d ___, 2014 WL 228639, *6 (Fla.
Dist. Ct. App. 2014) (“Miller applies retroactively to provide postconviction relief for juvenile
homicide offenders sentenced to mandatory terms of life in prison without the possibility of parole”;
rejecting Geter, supra n. 20); In re Rainey, ___ Cal. Rptr. 3d ___, 2014 WL 794354 (Cal. Ct. App.
2014); People v. Williams, 982 N.E.2d 181, 196 (Ill. Ct. App. 2012). See also Tulloch v. Gerry, Nos.
12-CV-849, 13-CV-050, 13-CV-085, 08-CR-1235, 2013 WL 4011621 (N.H. Super. Jul. 29, 2013).
       24
          Ragland, 836 N.W.2d at 114 (“The competing arguments over the retroactivity of Miller
essentially narrow the inquiry to whether the decision merely established a new penalty phase
procedure for courts to follow before imposing a life sentence without parole for crimes committed
by juveniles or whether the decision established either a substantive rule of law or one that implicates
fundamental fairness and accuracy of the criminal proceeding.”).
       25
           For example, the Supreme Court entirely removed the option of a death sentence as a
possible punishment in a capital-murder case when the defendant is mentally retarded. Atkins v.
Virginia, 536 U.S. 304 (2002). Lower courts have uniformly held that Atkins applies retroactively
to collateral proceedings as well as cases on direct appeal. See Ex parte Briseno, 135 S.W.3d 1, 3
(Tex. Crim. App. 2004) (applying Atkins retroactively to applicant seeking habeas corpus relief); Bell
v. Cockrell, 310 F.3d 330, 332 (5th Cir. 2002) (retroactively applying Atkins in federal habeas
proceedings); Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002) (stating that Atkins applies
                                                                         Ex parte Maxwell      Page 10

particular sentence.26 These courts conclude that Miller does not satisfy the test for

retroactivity because it does not categorically bar all sentences of life without parole for

juveniles; Miller bars only those sentences made mandatory by an explicit sentencing

scheme.27 It changed the permissible method–the procedure–by which the State could

exercise its continuing power to punish juvenile homicide offenders by life without parole.28

Those courts state that Miller, though informed by the “categorical ban” cases like Graham,

Roper, and Atkins,29 is more like Ring, Apprendi, or Padilla,30 because it is


retroactively).
        26
          In re Morgan, 713 F.3d 1365, 1368 (11th Cir. 2013) (“A new rule is substantive when that
rule places an entire class beyond the power of the government to impose a certain punishment
regardless of the procedure followed, not when the rule expands the range of possible sentences.”);
People v. Carp, 828 N.W.2d 685, 711 (Mich. Ct. App. 2012) (“Miller does not alter the elements
necessary for a homicide conviction. Rather it simply necessitates the consideration of certain
factors, when juveniles are involved, in sentencing.”).
        27
            See Martin v. Symmes, ___ F. Supp. ___, 2013 WL 5653447, *16 (D.Minn. 2013) (“Miller
does not satisfy the first Teague exception because it does not place a class of conduct (homicide by
a juvenile) beyond the power of the state to proscribe, nor does it prohibit a category of punishment
(life in prison without parole) for a class of defendants (juveniles) based on their offense (homicide).
Rather, Miller prohibits a sentencing scheme in which a particular sentence is mandatory rather than
the result of a process in which the offender’s youth and attendant circumstances are considered.”).
        28
          Carp, 828 N.W.2d at 711 (“Our determination that Miller does not comprise a substantive
new rule and, therefore, is not subject to retroactive application for cases on collateral review is
supported by the fact that the ruling does not place certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe.”) (quotation marks
omitted).
        29
           Graham v. Florida, 560 U.S. 48, 82 (2010) (“The Constitution prohibits the imposition
of a life without parole sentence on a juvenile offender who did not commit homicide.”); Roper v.
Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition
of the death penalty on offenders who were under the age of 18 when their crimes were
committed.”); Atkins v. Virginia, 536 U.S. 304, 321 (2002) (“Construing and applying the Eighth
Amendment in the light of our ‘evolving standards of decency,’ we therefore conclude that such
                                                                        Ex parte Maxwell      Page 11

procedural–simply requiring an additional sentencing procedure for juvenile offenders.31

These courts also downplay the importance of the Court’s remand of Miller’s companion

case, Jackson v. Hobbs–which came to the Court through Arkansas’s state collateral-review

process–as constituting a ruling or determination on retroactivity because the Court did not

specifically hold that Miller is retroactive on collateral review.32




punishment is excessive and that the Constitution ‘places a substantive restriction on the State’s
power to take the life’ of a mentally retarded offender.”).
       30
           State v. Tate, ___ So.3d ___, 2013 WL 5912118, *7 (La. 2013) (“[B]ecause the Miller
Court, like the Court in [Ring v. Arizona, 536 U.S. 584 (2002) (Capital defendants are entitled to a
jury determination of any fact on which the legislature conditions an increase in their maximum
punishment)], merely altered the permissible methods by which the State could exercise its
continuing power, in this case to punish juvenile homicide offenders by life imprisonment without
the possibility of parole, we find its ruling is procedural, not substantive in nature.”) (relying on
Schriro v. Summerlin, 542 U.S. 348 (2004), which held that Ring v. Arizona was properly classified
as procedural rather than substantive, and thus did not apply retroactively to death-penalty case
already final on direct review); Geter v. State, 115 So. 3d 375, 382 (Fla. Ct. App. 2012) (holding
that, like Apprendi v. New Jersey, 530 U.S. 466 (2000), which requires that any fact, other than the
fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt, and Padilla v.
Kentucky, 559 U.S. 356 (2010), which requires that counsel inform a client whether his plea carries
a risk of deportation, the Miller “decision constitutes an evolutionary refinement designed to
correspond to new developments in an ever-changing area of law.”) (quotation marks omitted).
       31
           In re Morgan, 713 F.3d 1365, 1368 (11th Cir. 2013) (“Miller changed the procedure by
which a sentencer may impose a sentence of life without parole on a minor by requiring the sentencer
to take into account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison. And the Court declined to consider a categorical
bar on life without parole for juveniles, or at least those 14 and younger.”) (quotation and alteration
marks omitted).
       32
          Id. at 1367 (“The requirement that a new rule be made retroactive on collateral review by
the Supreme Court ‘is satisfied only if th[e] [Supreme] Court has held that the new rule is
retroactively applicable to cases on collateral review.’ And the Supreme Court has not held that
Miller is retroactively applicable to cases on collateral review.”) (quoting Tyler v. Cain, 533 U.S.
656, 662 (2001)).
                                                                       Ex parte Maxwell     Page 12

       Conversely, those courts holding that Miller is retroactive have reasoned that it

announced a substantive rule that prevents a “significant risk that a juvenile faces a

punishment that the law cannot impose on him.”33              They point to the Supreme Court’s

explanation of a “new substantive rule” in Schriro v. Summerlin: New substantive rules

include “constitutional determinations that place particular conduct or persons covered by

the statute beyond the State’s power to punish.”34 Miller places juveniles subject to

mandatory “life without parole” statutes beyond the State’s power to punish.35 It alters the

range of outcomes of a criminal proceeding by prohibiting a mandatory sentence of life

without parole for a juvenile murderer.36 Miller is categorical because it completely removes

a particular punishment from the list of punishments that can be constitutionally imposed,

that of mandatory life without parole.37



       33
            Jones v. State, 122 So.3d 698, 702 (Miss. 2013) (quotation and alteration marks omitted).
       34
            Schriro v. Summerlin, 542 U.S. 348, 352 (2004).
       35
          State v. Ragland, 836 N.W.2d 107, 115 (Iowa 2013) (“From a broad perspective, Miller
does mandate a new procedure. Yet, the procedural rule for a hearing is the result of a substantive
change in the law that prohibits mandatory life-without-parole sentencing. Thus, the case bars states
from imposing a certain type of punishment on certain people.”).
       36
        See Tulloch v. Gerry, Nos. 12-CV-849, 13-CV-050, 13-CV-085, 08-CR-1235, 2013 WL
4011621, *6 (N.H. Super. Jul. 29, 2013).
       37
          Diatchenko v. District Attorney for Suffolk Dist., 1 N.E.3d 270 (Mass. 2013) (“The rule
explicitly forecloses the imposition of a certain category of punishment—mandatory life in prison
without the possibility of parole—on a specific class of defendants: those individuals under the age
of eighteen when they commit the crime of murder. Its retroactive application ensures that juvenile
homicide offenders do not face a punishment that our criminal law cannot constitutionally impose
on them.”).
                                                                        Ex parte Maxwell      Page 13

       These courts note that the Supreme Court’s reliance on the categorical and individual

sentencing lines of cases represents its intent that Miller apply retroactively–because

Graham, Roper, and Atkins were applied retroactively.38 These courts also say that the

Supreme Court implicitly made Miller retroactive by applying the rule to Miller’s companion

case, Jackson v. Hobbs–a post-conviction case on collateral review.39

       Courts are split on the retroactivity question because it is a close call, and it is one that

ultimately must be resolved by the Supreme Court. But Miller is driven, first and foremost,

by the conclusion that “children are constitutionally different from adults for purposes of


       38
           State v. Ragland, 836 N.W.2d 107, 116 (Iowa 2013) (“[T]he cases used by the Court in
Miller to support its holding have been applied retroactively on both direct and collateral review. See
In re Sparks, 657 F.3d 258, 261–62 (5th Cir. 2011) (indicating Graham was made retroactive on
collateral review by the Supreme Court as a matter of logical necessity under Tyler ); see also Tyler,
533 U.S. [656, 669 (2001)] (O’Connor, J., concurring) (describing the syllogistic relationship
between Teague's exception to nonretroactivity for rules placing certain conduct beyond the power
of the state to proscribe and subsequent cases that fit into Teague's exception); Penry v. Lynaugh,
492 U.S. 302, 330 (1989) (“[T]he first exception set forth in Teague should be understood to cover
not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting
a certain category of punishment for a class of defendants because of their status or offense.”),
abrogated on other grounds by Atkins, 536 U.S. at 321. We joined this discourse three years ago
when we held Graham applied retroactively. Bonilla v. State, 791 N.W.2d 697, 700–01 (Iowa 2010).
This practical observation of the treatment of the underlying authority of Miller is instructive. If a
substantial portion of the authority used in Miller has been applied retroactively, Miller should
logically receive the same treatment.”).
       39
          See Diatchenko, 1 N.E.3d at 281 (“Our conclusion is supported by the fact that in Miller,
the Supreme Court retroactively applied the rule that it was announcing in that case to the defendant
in the companion case who was before the Court on collateral review.”) (citation omitted); People
v. Williams, 982 N.E.2d 181, 197 (Ill. Ct. App. 2012) (“It is instructive that the Miller companion
case, Jackson v. Hobbs, arising on collateral review, involved a life-without-parole-sentence
heretofore final. Notwithstanding its finality, the Supreme Court of the United States in effect
retroactively applied Miller and vacated Jackson’s sentence. ‘[O]nce a new rule is applied to the
defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively
to all who are similarly situated.’”) (quoting Teague, 489 U.S. at 300).
                                                                      Ex parte Maxwell      Page 14

sentencing.”40 Looking into the crystal ball, we think that the Supreme Court will hold that

Miller falls under the first Teague exception. We conclude that it is a “new substantive rule”

that puts a juvenile’s mandatory “life without parole” sentence outside the ambit of the

State’s power.

       In distinguishing Ring,41 which “altered the range of permissible methods for

determining whether a defendant’s conduct is punishable by death,” one judge quoted a post-

Ring Supreme Court case that stated that “‘[r]ules that allocate decision-making authority in

this fashion are prototypical procedural rules[.]’”42

               This reasoning does not apply to Miller. First, unlike the rule in Ring,
       Miller does not alter the manner of determining culpability. Instead, Miller
       alters the range of outcomes available for certain criminal conduct. The
       respondents suggest that Miller is a procedural rule because it alters the range
       of permissible methods for determining whether a juvenile’s conduct is
       punishable by life in prison without parole. The court disagrees. Before Miller,
       there was no method to determine whether a juvenile’s conduct was punishable
       by life in prison without parole—it was automatic and mandatory. After
       Miller, there is a range of new outcomes—discretionary sentences that can
       extend up to life without the possibility of parole but also include the more
       lenient alternatives. Thus, Miller is distinguishable from Ring because it does
       not simply reallocate decision making authority from judge to jury; instead, it
       provides a sentencing court with decision making authority where there once


       40
            Miller, 132 S. Ct. at 2464.
       41
          Ring v. Arizona, 536 U.S. 584, 609 (2002) (holding that a sentencing judge, sitting without
a jury, may not make a finding of an aggravating circumstance that is necessary for the imposition
of the death penalty).
       42
         Tulloch v. Gerry, Nos. 12-CV-849, 13-CV-050, 13-CV-085, 08-CR-1235, 2013 WL
4011621, *6 (N.H.Super. Jul. 29, 2013) (granting four petitioners’ request for habeas relief and
remanding for sentencing hearings consistent with Miller v. Alabama) (quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004)).
                                                                      Ex parte Maxwell     Page 15

       was none—banning mandatory life sentences without parole and requiring
       discretionary sentences. Under Miller, a juvenile defendant is required to have
       the opportunity to establish that life without parole is not an appropriate
       sentence. For these reasons, the Miller rule is substantive.43

We agree.

       In Miller, the Supreme Court predicted that “appropriate occasions for sentencing

juveniles to the harshest possible penalty will be uncommon” because of the “great difficulty

we noted in Roper and Graham of distinguishing at this early age between the juvenile

offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile

offender whose crime reflects irreparable corruption.”44            This may be one of those

uncommon cases. But, under Miller v. Alabama, that must be a discretionary decision made

by the sentencing factfinder, based upon all of the evidence, not an automatic mandatory “life

without parole” sentence. Accordingly, the petitioner’s request for habeas relief and motion

to vacate his sentence are granted. We remand this case for further sentencing proceedings

to permit the factfinder to assess applicant’s sentence at (1) life with the possibility of parole

(as both pre-2005 and post-2013 Texas law permits) or (2) life without parole after

       43
            Id. at *7.
       44
          Miller, 132 S. Ct. at 2469 (some quotation marks omitted). Chief Justice Roberts suggested
an ulterior motive for the prediction:
        [T]he Court’s gratuitous prediction appears to be nothing other than an invitation to
        overturn life without parole sentences imposed by juries and trial judges. If that
        invitation is widely accepted and such sentences for juvenile offenders do in fact
        become “uncommon,” the Court will have bootstrapped its way to declaring that the
        Eighth Amendment absolutely prohibits them.
                This process has no discernible end point—or at least none consistent with
        our Nation’s legal traditions.
Id. at 2481 (Roberts, C.J., dissenting).
                                                                       Ex parte Maxwell      Page 16

consideration of applicant’s individual conduct, circumstances, and character.45

Delivered: March 12, 2014
Publish




       45
          In its Brief, the Travis County District Attorney opposes the retroactive application of
Miller, but states that it has or will be submitting a request to the Texas Board of Pardons and
Paroles that Terrell Maxwell’s sentence of life without parole be commuted to a sentence of life with
the possibility of parole. State’s Brief at 18 n. 9. This matter is best addressed in the trial court.
