               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0494n.06

                                           No. 14-6230
                                                                                        FILED
                          UNITED STATES COURT OF APPEALS                          Aug 23, 2016
                               FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

BRIAN A. STARKS,                             )
                                             )
       Petitioner-Appellant,                 )
                                             )        ON APPEAL FROM THE
v.                                           )        UNITED STATES DISTRICT
                                             )        COURT FOR THE MIDDLE
JOE EASTERLING, Warden,                      )        DISTRICT OF TENNESSEE
                                             )
       Respondent-Appellee.                  )        OPINION
                                             )

BEFORE: NORRIS, McKEAGUE, and WHITE, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Tennessee prisoner Brian Starks was sentenced to a

mandatory term of life imprisonment for felony murder, as well as a consecutive term of eleven

years for attempted especially aggravated robbery. Petitioner was seventeen years old when he

received this sentence. He will be eligible for parole when he reaches seventy-seven. Because

that age exceeds the life expectancy of African American males, especially those who have been

incarcerated, petitioner contends that the sentence violates the Eighth Amendment in light of

Miller v. Alabama, 132 S. Ct. 2455 (2012).

                                                 I.

       The underlying facts that led to petitioner’s prosecution are not critical to the legal issue

presented on appeal. A detailed summary of the unfortunate events can be found in the opinion

of the Tennessee Court of Criminal Appeals. State v. Starks, 2003 WL 1877084, at *1 (Tenn.

Crim. App. Apr. 15, 2003). Briefly, on January 18, 1999, petitioner and two friends went to a

Nashville housing project to sell crack cocaine. Petitioner carried a gun. The victim, Julius
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Talley, approached the group to buy crack. Although they initially rebuffed Talley, the group

subsequently attempted to rob him after he left the apartment of a known drug supplier. Talley

told them he had neither money nor crack. Nonetheless, they pushed him to a dumpster and

petitioner shot him several times.

       The three individuals were charged with felony murder and attempted especially

aggravated robbery. Only petitioner elected to go to trial and he was found guilty on both counts.

As already mentioned, he received a mandatory life sentence for felony murder, Tenn. Code.

Ann. § 39-13-204, which in Tennessee requires an individual to serve fifty-one years in prison

before eligibility for parole. The trial court also imposed a consecutive eleven-year term of

incarceration for especially aggravated robbery. Tenn. Code Ann. § 39-13-403. As mentioned,

petitioner will not be eligible for parole until February 12, 2059, when he will be seventy-seven

years old.

       His convictions were affirmed on direct appeal. On June 23, 2011, petitioner filed a pro

se habeas petition. After counsel was appointed, three amended petitions were filed. The district

court denied relief on all claims. Starks v. Easterling, 2014 WL 4347593, at *11 (M.D. Tenn.

Sept., 2, 2014). However, it granted a certificate of appealability on one claim: whether the

sentence violates the Eighth Amendment in light of Miller v. Alabama, 132 S. Ct. 2455 (2012).

Id. This appeal followed.

       While the federal habeas proceedings were ongoing, petitioner filed a petition for post-

conviction relief in state court, raising the Miller claim. The trial court denied relief and was

affirmed by the court of criminal appeals. Permission to appeal was denied by the Tennessee

Supreme Court. These decisions preceded the denial of habeas relief in the district court.




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                                                 II.

       This court reviews the district court’s legal conclusions de novo and factual findings for

clear error. Trimble v. Bobby, 804 F.3d 767, 773 (6th Cir. 2015). In this case, there is no factual

dispute and we review de novo.

       The Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies in this case. If the

claim was adjudicated on the merits in the state courts, a district court may not grant habeas

relief unless the adjudication of the claim “resulted in a decision that 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).

       As already noted, the Tennessee trial court and the court of criminal appeals addressed

petitioner’s Eighth Amendment claim in post-conviction proceedings. Both courts reached the

merits of the claim. The trial court read Miller narrowly: because petitioner did not receive a

sentence that precluded parole, he had no viable claim. The court of criminal appeals agreed with

this decision without further elaboration.

       In the past decade, the Supreme Court has issued several opinions in addition to Miller

that discuss the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies

to juvenile offenders. See, e.g., Roper v. Simmons, 543 U.S. 551, 573-74 (2005) (execution of

individuals who committed a capital crime when they were under eighteen constitutes cruel and

unusual punishment); Graham v. Florida, 560 U.S. 48, 82 (2010) (a sentence of life without

parole for a juvenile offender who did not commit homicide violates the Eighth Amendment);

Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016) (holding that Miller applies retroactively).

       These cases recognize that juvenile offenders have a lesser culpability than their adult

counterparts, often lack maturity, and have an underdeveloped sense of responsibility, Graham,


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560 U.S. at 72; they are susceptible to negative influences, such as peer pressure, id.; they may

have been subject to a dysfunctional upbringing, Miller, 132 S. Ct. at 2468; and, they are more

amenable to rehabilitation because their characters are not as well formed as an adult’s, id. at

2464. Miller summed up its holding in these terms:

       We therefore hold that the Eighth Amendment forbids a sentencing scheme that
       mandates life in prison without possibility of parole for juvenile offenders. Cf.
       Graham, 560 U.S., at ––––, 130 S. Ct., at 2030 (“A State is not required to
       guarantee eventual freedom,” but must provide “some meaningful opportunity to
       obtain release based on demonstrated maturity and rehabilitation”). By 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.
       Because that holding is sufficient to decide these cases, we do not consider
       Jackson’s and Miller’s alternative argument that the Eighth Amendment requires
       a categorical bar on life without parole for juveniles, or at least for those 14 and
       younger. But given all we have said in Roper, Graham, and this decision about
       children’s diminished culpability and heightened capacity for change, we think
       appropriate occasions for sentencing juveniles to this harshest possible penalty
       will be uncommon. That is especially so 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.” Roper, 543 U.S.,
       at 573, 125 S. Ct. 1183; Graham, 560 U.S., at ––––, 130 S. Ct., at 2026–27.
       Although we do not foreclose a sentencer’s ability to make that judgment in
       homicide cases, we require it to take into account how children are different, and
       how those differences counsel against irrevocably sentencing them to a lifetime in
       prison.
Miller, 132 S. Ct. at 2469 (footnote omitted).

       Because the Tennessee court of criminal appeals denied relief on the question before us,

we must decide whether its adjudication “resulted in a decision that 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).

       The Tennessee Court of Criminal Appeals court read Miller to require that a defendant

must be sentenced to life without the possibility of parole for it to apply.




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       Like the Tennessee courts, the warden argues that Miller applies only to those juveniles

sentenced to life without the possibility of parole. Moreover, he contends that the Tennessee

court decisions were not objectively unreasonable because courts that have construed Miller

under similar circumstances have reached different conclusions. He refers us to a dissenting

opinion from the denial of rehearing en banc in which the dissenter points out that—when

construing Graham at least—courts are split about whether consecutive, fixed sentences

resulting in a sentence that exceeds the defendant’s life expectancy is the functional equivalent of

life without parole. Moore v. Biter, 742 F.3d 917, 920 (9th Cir. 2014).

       In our view, the Supreme Court opinions that we cited earlier illustrate the Court’s

growing unease with draconian sentences imposed upon juveniles, even for serious crimes. As

this line of jurisprudence continues to evolve, it may well be that the Court one day holds that

fixed-term sentences for juvenile offenders that are the functional equivalent of life without

parole are unconstitutional, especially if the sentencing court has not taken the defendant’s youth

into consideration. That said, it is not our role to predict future outcomes. Because the Supreme

Court has not yet explicitly held that the Eighth Amendment extends to juvenile sentences that

are the functional equivalent of life, and given the fact that lower courts are divided about the

scope of Miller, we hold that the Tennessee courts’ decisions were not contrary to, or an

unreasonable application of, clearly established federal law as defined by the Supreme Court. 28

U.S.C. § 2254(d)(1).

                                                III.

       The judgment of the district court is affirmed.




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       HELENE N. WHITE, Circuit Judge, concurring.

       I join in the affirmance because I agree that Starks has not met AEDPA’s demanding

standard for relief. I write separately because I conclude that properly applied, the Supreme

Court’s cases establish that Starks’s sentence violates the Eighth Amendment.

       In Graham v. Florida, 560 U.S. 48 (2010), the Supreme Court held that the Eighth

Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender

who did not commit homicide.” Id. at 82. The state “need not guarantee the offender eventual

release, but if it imposes a sentence of life it must provide him or her with some realistic

opportunity to obtain release before the end of that term.” Id. (emphasis added). The Court

grounded this decision in “[c]ommunity consensus,” “the limited culpability of juvenile

nonhomicide offenders,” “the severity of life without parole sentences,” and a determination that

“penological theory is not adequate to justify life without parole for juvenile nonhomicide

offenders.” Id. at 67, 74. The Court explained that none of the “goals of penal sanctions that

have   been    recognized    as   legitimate”—“retribution,     deterrence,    incapacitation,   and

rehabilitation”—provides a sufficient basis for sentencing juveniles to a lifetime of incarceration.

Id. at 71 (citing, inter alia, Roper v. Simmons, 543 U.S. 551, 571–72 (2005)).

       Two years later, in Miller v. Alabama, 132 S. Ct. 2455 (2012), the Court held that “the

Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders” convicted of homicide offenses.             Id. at 2469.    Before

“imposition of that harshest prison sentence,” a sentencing court must “take into account how

children are different, and how those differences counsel against irrevocably sentencing them to

a lifetime in prison.” Id. Otherwise, the Court explained, sentencing a juvenile homicide

offender to “lifetime incarceration without possibility of parole” is cruel and unusual


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punishment. Id. at 2475. The Court rooted this conclusion in Graham, and quoted Graham’s

explanation that a prohibition on life without parole means that a state “must provide ‘some

meaningful opportunity to obtain release.’” Id. at 2469 (quoting Graham, 560 U.S. at 74).

Together, Graham and Miller establish that the Eighth Amendment prohibits a sentencing

regime that mandates a term of life imprisonment for juvenile homicide offenders without a

meaningful opportunity to obtain release. Id. at 2460, 2469.

       Starks was convicted of first-degree felony murder, in violation of Tenn. Code Ann. § 39-

13-202, and attempted especially aggravated robbery, in violation of Tenn. Code Ann. §§ 39-12-

101 and 39-13-403, for a robbery-murder committed when he was a juvenile. He was sentenced

to life imprisonment. In Tennessee, a defendant who has been sentenced to paroleable life in

prison must serve 60 years of his sentence before he is eligible for release on parole. Tenn. Code

Ann. §§ 39-13-204(a), (f)(1), 40-35-501(h)(1), (i); Vaughn v. State, 202 S.W.3d 106, 118–20

(Tenn. 2006). However, because a prisoner serving a life sentence is eligible for up to 9 years’

worth of good-time credit, the absolute minimum term of confinement is 51 years. Tenn. Code

Ann. §§ 40-35-501(i)(1), 41-21-236; Vaughn, 202 S.W.3d at 118–20.           Thus, a 17-year-old

convicted of first-degree murder and sentenced to life imprisonment would be eligible for

release—assuming maximum credit—at age 68.

       Even without his consecutive 11-year sentence for the robbery offense,1 Starks’s life

sentence for murder does not provide a meaningful opportunity for release. Data from the


       1
         Starks focuses on his aggregate sentence for felony murder and especially aggravated
robbery: life plus 11 years. Our decision in Bunch v. Smith, 685 F.3d 546 (6th Cir. 2012), cert.
denied, Bunch v. Bobby, 133 S. Ct. 1996 (2013), which concluded that Graham and Miller did
not apply to an 89-year aggregate sentence for multiple nonhomicide offenses, can be read to
foreclose the aggregation of sentences for Eighth Amendment purposes in this circuit. Id. at
551–53; see also Goins v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014). But see McKinley v.
Butler, 809 F.3d 908 (7th Cir. 2016); Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013). But this
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Centers for Disease Control and Prevention show that the life expectancy for black men in the

United States—like Starks—was 71.8 years in 2010. R. 47-4, CDC Data Brief, PID 994, 996.

And data from the Department of Justice show that state prisoners age 55 to 64 had death rates

56% higher than the general population from 2001 to 2004. Starks Br. 8 (citing Christopher J.

Mumola, Bureau of Justice Statistics, No. NCJ 216340, Medical Causes of Death in State

Prisons, 2001-2004 (Jan. 2007), http://www.bjs.gov/content/pub/pdf/mcdsp04.pdf). Here, where



case is not on all fours with Bunch, which addressed “consecutive, fixed-term sentences for
committing multiple nonhomicide offenses,” and suggested that a life sentence would present a
different case. Bunch, 685 F.3d at 551 (distinguishing Graham because it “said that a juvenile is
entitled to such a ‘realistic opportunity to obtain release’ if a state imposes a sentence of ‘life’”).
         Further, Starks received two separate sentences for felony murder and the underlying
felony. In Tennessee, “separate convictions and punishments for felony murder and the
underlying felony are permissible when the two offenses are charged as separate counts.” State
v. Webster, 81 S.W.3d 244, 251 (Tenn. Ct. Crim. App. 2002); see also State v. Godsey,
60 S.W.3d 759, 777–78 (Tenn. 2001); State v. Blackburn, 694 S.W.2d 934, 937 (Tenn. 1985).
Given that both of Starks’s sentences were imposed for the same felony murder, there is a
stronger argument for considering the Eighth Amendment implications of his sentences in the
aggregate. Many states likely would not permit separate sentences for felony murder and
robbery under these circumstances, see, e.g., People v. Holt, 937 P.2d 213, 250 & n.27 (Cal.
1997); Commonwealth v. Rivera, 833 N.E.2d 1113, 1123 (Mass. 2005); State v. Frazier,
164 P.3d 1, 2 (N.M. 2007); State v. Hill, 868 A.2d 290, 300 (N.J. 2005); State v. Millsaps,
572 S.E.2d 767, 770 (N.C. 2002); State v. Powers, 526 A.2d 489, 495 (R.I. 1987); State v.
Elliott, 412 S.E.2d 762, 765 (W.Va. 1991); State v. Krawczyk, 657 N.W.2d 77, 85 (Wis. Ct. App.
2002) (citing State v. Gordon, 330 N.W.2d 564 (1983)); Mares v. State, 939 P.2d 724, 730
(Wyo. 1997), while other states would, see, e.g., Todd v. State, 917 P.2d 674, 679 (Alaska 1996);
Boler v. State, 678 So.2d 319, 322 (Fla. 1996); State v. Ruesga, 619 N.W.2d 377, 382–83 (Iowa
2000); State v. Ninci, 936 P.2d 1364, 1389 (Kan. 1997); Bennett v. Commonwealth, 978 S.W.2d
322, 327 (Ky. 1998); People v. Collins, No. 277098, 2008 WL 3876109, at *10 (Mich. Ct. App.
Aug. 21, 2008) (per curiam) (citing People v. Ream, 750 N.W.2d 536, 546 (Mich. 2008)); State
v. Flenoy, 968 S.W.2d 141, 145 (Mo. 1998) (en banc); State v. Close, 623 P.2d 940, 949–51
(Mont. 1981); Talancon v. State, 721 P.2d 764, 768 (Nev. 1986); People v. Rivers, 542 N.Y.S.2d
19, 20 (App. Div. 1989) (citing People v. Berzups, 402 N.E.2d 1155 (N.Y. 1981)); State v. Smith,
684 N.E.2d 668, 693–94 (Ohio 1997); State v. Fedorowicz, 52 P.3d 1194 (Utah 2002).
         Because states vary in their approaches to sentencing juvenile defendants accused of
felony murder, fairness requires that the sentence or sentences imposed be considered in the
aggregate. For Starks, this makes the constitutional violation even more clear. However, the life
sentence alone leaves him without a meaningful opportunity for release, regardless whether his
consecutive sentences are properly considered in aggregate.
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Starks would become eligible for release at age 68 at the earliest, and even then only with

maximum credit for good behavior, he has been deprived of a “‘meaningful opportunity to obtain

release’” during his lifetime. Miller, 132 S. Ct. at 2469 (quoting Graham, 560 U.S. at 74).

       This conclusion is supported by state-court decisions setting aside as cruel and unusual

lengthy sentences that approach or exceed a defendant’s life expectancy, regardless whether that

sentence bears the title “life without parole.” See, e.g., People v. Caballero, 282 P.3d 291, 268

(Cal. 2012); People v. Rainer, No. 10CA2414, 2013 WL 1490107, at *15 (Colo. Ct. App. Apr.

11, 2013); Casiano v. Comm’r of Corr., 115 A.3d 1031, 1047–48 (Conn. 2015); Henry v. State,

175 So.3d 675, 676, 680 (Fla. 2015); State v. Null, 836 N.W.2d 41, 72 (Iowa 2013); Parker v.

State, 119 So.3d 987, 997 (Miss. 2013); State v. Ronquillo, 361 P.3d 779, 784–85 (Wash. Ct.

App. 2015); Bear Cloud v. State, 334 P.3d 132, 136 (Wyo. 2014). Further, this conclusion is in

line with decisions from the Seventh and Ninth Circuits holding that Graham and Miller apply to

sentences of de facto life without parole.2 McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016);

Moore v. Biter, 725 F.3d 1184, 1194 (9th Cir. 2013). To be sure, the sentences in the Seventh

and Ninth Circuit cases far exceed Starks’s, but for a defendant the number of years matters little

if there is no meaningful opportunity for release.

       Lastly, Starks’s life sentence for first-degree felony murder was mandatory under

Tennessee law, regardless of his age. In Tennessee, a defendant convicted of first-degree murder

       2
         Other circuits apparently have not yet directly addressed this issue. The Second Circuit
faced a similar Miller question in United States v. Stone, 621 F. App’x 61 (2d Cir. 2015), but
explained in an unpublished summary order that the issue had been waived. The Fourth Circuit
heard a Graham challenge to an 832-month sentence, but concluded that the claim was time-
barred under 28 U.S.C. § 2255(f)(3). In re Sloan, 570 F. App’x 338, 339 (4th Cir. 2014). The
Fifth Circuit did not apply Graham and Miller to a discretionary forty-year sentence for a
nonhomicide offense, but that argument was also reviewed only for plain error. United States v.
Walton, 537 F. App’x 430, 437 (5th Cir. 2013). The Eighth Circuit addressed a Miller challenge
to a fifty-year sentence, but concluded that Miller did not apply because the sentence had not
been mandatory. United States v. Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016).
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“shall be sentenced to death, to imprisonment for life without possibility of parole, or to

imprisonment for life.” Tenn. Code Ann. § 39-13-204(a), (f). Although the statute nominally

distinguishes between life and life without parole, there is effectively no difference where release

eligibility begins only after 51 to 60 years of service on the sentence. Id. § 40-35-501(h)(1), (i).

Thus, I conclude that Starks’s mandatory life sentence violates Miller.

       Yet, we may grant relief only if the Tennessee court’s decision rejecting Starks’s claim

“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). As the

Supreme Court has explained, a decision is contrary to clearly established law “if the state court

applies a rule different from the governing law” as set forth in the Supreme Court’s cases, or if

the state court “decides a case differently” than the Supreme Court has done “on a set of

materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). A decision involves

an unreasonable application of clearly established law “if the state court correctly identifies the

governing principle” from the Supreme Court’s cases, but “unreasonably applies it to the facts of

the particular case.” Id.

       Although I conclude that Starks’s sentence violates the Eighth Amendment, “it is

possible fairminded jurists could disagree” that the Tennessee court’s contrary conclusion was

“inconsistent with the holding” in Miller. Harrington v. Richter, 562 U.S. 86, 102 (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. But Starks’s sentence falls in a gray area that raises the

question whether release eligibility at an age nearing a defendant’s life expectancy violates


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clearly established law. The Supreme Court has not made clear where to draw the line, cf. Goins

v. Smith, 556 F. App’x 434, 440 (6th Cir. 2014), and I recognize that reasonable jurists can

disagree whether release after 51 to 60 years is beyond the line. Under these circumstances,

§ 2254(d)(1) compels us to affirm the denial of relief.




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