                                                                                           May 5 2015


                                       OP 14-0685
                                                                                       Case Number: OP 14-0685


            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2015 MT 118
                                   _________________

BARRY ALLAN BEACH,

           Petitioner,
                                                                 OPINION
      v.                                                           AND
                                                                  ORDER
STATE OF MONTANA,

           Respondent.
                                   _________________

¶1     Barry Allan Beach petitions for a writ of habeas corpus, arguing that his sentence

of one hundred years of imprisonment without the possibility of parole is unconstitutional

under Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). The dispositive issue is

whether Miller’s rule requiring a sentencing judge to consider a juvenile1 offender’s age

when sentencing that offender to life without parole applies retroactively on collateral

review. We conclude that it does not. We deny Beach’s petition.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶2     In 1984, a Roosevelt County jury convicted Beach of deliberate homicide for a

crime committed in 1979, when Beach was seventeen. Under Montana’s sentencing

scheme, the District Court could impose a maximum sentence of one hundred years’


1
  In this opinion, “juvenile” refers to a person who committed a crime when under the age of
eighteen.
                                                1
imprisonment without the possibility of parole. See §§ 45-5-102(2), 46-18-202(2), -222,

-305, MCA (1978).      On May 11, 1984, following its consideration of a written

presentence investigation report and statements by both Beach and the prosecutor in open

court, the District Court imposed the maximum sentence.        Beach concedes that the

sentence was within the discretion of the District Court and that the sentence was not

mandated by law. The record does not show that the court expressly considered Beach’s

youth when imposing the sentence.

¶3    In the years since, Beach repeatedly has attacked his conviction and sentence. See

Beach v. McCormick, No. 98-35957, 1999 U.S. App. Lexis 20999 (9th Cir.), cert. denied

528 U.S. 1194, 120 S. Ct. 1255 (2000); State v. Beach, 2013 MT 130, 370 Mont. 163,

302 P.3d 47; Beach v. State, 2009 MT 398, 353 Mont. 411, 220 P.3d 667; Beach v. Day,

275 Mont. 370, 913 P.2d 622 (1996); State v. Beach, 217 Mont. 132, 705 P.2d 94 (1985).

Beach now petitions for a writ of habeas corpus, attacking the constitutionality of his

sentence under the United States Supreme Court’s recent decision in Miller.

                              STANDARD OF REVIEW

¶4    This Court determines the retroactivity of a constitutional rule as a matter of law.

State v. Reichmand, 2010 MT 228, ¶ 6, 358 Mont. 68, 243 P.3d 423.

                                    DISCUSSION

                                            I.

¶5    As an initial matter, the State urges that Beach’s habeas corpus petition is

procedurally barred.

                                        2
¶6     Article II, Section 19 of the Montana Constitution provides, “The privilege of the

writ of habeas corpus shall never be suspended.” Under Montana’s statutory scheme for

reviewing claims by convicted offenders, habeas corpus is not the method for collaterally

reviewing the conviction or sentence of a person who has been adjudged guilty of a crime

and has exhausted direct appeal. Section 46-22-101(2), MCA. Rather, a petition for

postconviction relief is the method by which an offender who has been found guilty may

collaterally attack his conviction or sentence. Section 46-21-101(1), MCA. Petitions for

postconviction remedies carry strict limitations. See § 46-21-102, MCA. In Lott v. State,

2006 MT 279, 334 Mont. 270, 150 P.3d 337, we held that statutory limitations on the

availability of the writ of habeas corpus are unconstitutional under Article II, Section 19

of the Montana Constitution as applied to an offender sentenced to a “facially invalid

sentence” where the facial invalidity stems from a rule created after time limits for

directly appealing or petitioning for postconviction relief have expired. Lott, ¶ 22.

¶7     The State argues that Lott does not apply because Beach’s sentence is not facially

invalid. Beach counters that the recent United States Supreme Court decision in Miller

makes his sentence facially invalid. Miller requires following a certain procedure before

sentencing a juvenile to life without the possibility of parole. Miller, 567 U.S. at ___,

132 S. Ct. at 2471. Beach is imprisoned under a sentence that he argues equates to life

without parole. Because Miller was not announced until 2012, Beach could not have

raised a claim under that case until after time limits for direct review and postconviction

relief had run. In these circumstances, we are satisfied that Beach’s claim sufficiently

                                          3
calls into question the facial validity of his sentence to lift the statutory bar to a petition

for habeas corpus relief.

                                               II.

¶8     The United States Constitution’s Eighth Amendment prohibits cruel and unusual

punishment.     “The concept of proportionality is central to the Eighth Amendment.”

Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 2021 (2010). While in practice the

concept of proportionality does not affect most sentences, see generally, Ewing v.

California, 538 U.S. 11, 123 S. Ct. 1179 (2003), proportionality bears on the harshest

types of punishments when an Eighth Amendment challenge is raised.

¶9     Because of the concept of proportionality, the Eighth Amendment requires

individualized sentencing in death penalty proceedings to determine whether that

punishment corresponds to an offender’s character, circumstance, and crime. Lockett v.

Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964-65 (1978); Woodson v. North Carolina,

428 U.S. 280, 303-05, 96 S. Ct. 2978, 2991-92 (1976).             Further, the death penalty

categorically represents an unconstitutionally disproportionate punishment when imposed

for certain crimes (like non-homicide offenses, Kennedy v. Louisiana, 554 U.S. 407, 438,

128 S. Ct. 2641, 2660 (2008)), and on certain classes of offenders with lesser capacities

(like intellectually disabled persons, Atkins v. Virginia, 536 U.S. 304, 321, 122 S. Ct.

2242, 2252 (2002), and juveniles, Roper v. Simmons, 543 U.S. 551, 575, 125 S. Ct. 1183,

1198 (2005)).




                                           4
¶10   The Supreme Court recently made clear that a sentence of life imprisonment

without the possibility of release, though not the harshest punishment for an adult

offender, is subject to more exacting scrutiny when imposed on a juvenile. In Graham,

the Supreme Court held that life without parole represents a categorically

disproportionate sentence for a juvenile convicted of a non-homicide offense. Graham,

560 U.S. at 75, 130 S. Ct. at 2030.          Next, in Miller, the Court considered the

proportionality of life without parole imposed on a juvenile for a homicide offense. The

Miller Court declined to address whether the Eighth Amendment categorically bars a life

without parole sentence imposed on a juvenile convicted of homicide. Miller, 567 U.S. at

___, 132 S. Ct. at 2469. The Court instead specified that appropriate circumstances to

impose such a sentence are “uncommon.” Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

To ensure that imposing life without parole on a juvenile homicide offender is

proportional, the Eighth Amendment requires that, before imposing such a sentence, a

sentencer “take into account how children are different, and how those differences

counsel against irrevocably sentencing them to a lifetime in prison.” Miller, 567 U.S. at

___, 132 S. Ct. at 2469. Accordingly, the Eighth Amendment “forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile offenders”

because such a scheme prevents a sentencer from taking into account constitutionally

necessary considerations. Miller, 567 U.S. at ___, 132 S. Ct. at 2469.

¶11   Beach argues that his sentence equates to life without parole. Beach concedes that

Miller’s holding forbidding mandatory life without parole sentences does not apply to his

                                         5
case because his sentence was not mandatory. Both at the time of Beach’s offense and

now, Montana sentencing statutes have prescribed an individualized sentencing

procedure that allows the sentencing court, after considering all circumstances of the

offender and the offense, to fashion a sentence within the range provided by the statute

under which the offender was convicted.             See §§ 46-18-101, -201, MCA (1978);

§§ 46-18-101, -201, MCA (2013).           Nevertheless, Beach argues that his sentence is

unconstitutional under Miller because his sentencer did not consider how Beach’s age

counseled against his sentence.2

¶12    Beach’s conviction and sentence became final for purposes of direct review in

1985. Miller was announced in 2012. Beach may benefit from Miller only if Miller

creates a rule that applies to a sentence imposed years before Miller was issued.

                                             III.

                                              A.

¶13    Beginning with Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731 (1965), the

United States Supreme Court struggled for over two decades with how and when to apply

constitutional rules retroactively in criminal cases.        Justice Harlan was the most

influential critic of the Court’s retroactivity approach during this period. In dissents in

Mackey v. United States, 401 U.S. 667, 91 S. Ct. 1160 (1971), and Desist v. United

States, 394 U.S. 244, 89 S. Ct. 1030 (1969), Justice Harlan devised an alternative

approach for determining retroactivity.

2
 In this opinion, we assume without deciding that Beach was sentenced to the equivalent of life
without parole.
                                          6
¶14    The distinction between direct and collateral review represents the central feature

of Justice Harlan’s framework. Justice Harlan believed that the judicial function requires

applying all rules of constitutional law to cases yet to be tried and on direct review.

Mackey, 401 U.S. at 681.3 But Justice Harlan also believed that new rules generally

should not apply retroactively to offenders on collateral review because of the interest in

finality that attaches once direct review ends, administrative costs associated with retrial

years after the fact, and the historic functions of habeas corpus.4 Mackey, 401 U.S. at

689-92.     Justice Harlan conceived of two exceptions to the general rule of

non-retroactivity on collateral review. The first exception is for new substantive rules

that place “certain kinds of primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe.” Mackey, 401 U.S. at 692. Justice Harlan

reasoned that substantive rules lessen the interest in finality because “[t]here is little


3
 Justice Harlan’s dissent in Mackey was never printed in the Supreme Court Reporter. We cite
only to where it appears in the United States Reports.
4
  In Montana, direct review occurs when an offender is convicted by a state court and, in the
months following that conviction, appeals her decision to the Montana Supreme Court and (if
federal issues are involved) seeks appeal with the United States Supreme Court. Under Justice
Harlan’s framework, a rule announced by the United States Supreme Court will benefit an
offender while her claim is still pending on direct review. After an offender exhausts direct
review, her claim becomes final, and she thereafter may seek only collateral review. Collateral
review has two stages. In the first stage, the offender may petition Montana courts, including
this Court, for collateral review (usually styled as a petition for postconviction relief, but
sometimes, as in this case, styled as a petition for a writ of habeas corpus), and may appeal this
Court’s decision on federal issues to the United States Supreme Court. In the second collateral
review stage, the offender may seek federal habeas corpus review on federal issues from a
federal district court, a federal court of appeals, and the United States Supreme Court. Under
Justice Harlan’s framework, a new rule announced after an offender’s conviction has become
final—when only collateral review remains—generally will not apply retroactively to benefit an
offender.
                                              7
societal interest in permitting the criminal process to rest at a point where it ought

properly never to repose.” Mackey, 401 U.S. at 693. Moreover, because conduct that is

no longer punishable cannot be retried, overturning a conviction based on a substantive

rule does not tax the state through requiring another trial. Substantive rules also echo the

historic availability of habeas corpus to attack a court’s jurisdiction to imprison a person.

Mackey, 401 U.S. at 692-93.

¶15    Justice Harlan’s second exception encapsulates procedural rules that are “implicit

in the concept of ordered liberty” and “alter our understanding of the bedrock procedural

elements” necessary to the fairness and accuracy of a conviction. Mackey, 401 U.S. at

693 (citation omitted); Desist, 394 U.S. at 262, 89 S. Ct. at 1041. Justice Harlan offered

the rule from Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 806 (1963)

(requiring that an indigent defendant be provided counsel), as an example of a rule

satisfying this exception. Mackey, 401 U.S. at 694.

¶16    In Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708 (1987), the United States

Supreme Court adopted the first leg of Justice Harlan’s framework, stating that any

newly-announced constitutional rule will apply to cases still pending on direct review.

Griffith, 479 U.S. at 328, 107 S. Ct. at 716. Then, in Teague v. Lane, 489 U.S. 288, 109

S. Ct. 1060 (1989), a plurality of the Court adopted the remainder of Justice Harlan’s

framework, holding that new rules generally will not apply retroactively to cases on

collateral review. Teague, 489 U.S. at 310, 109 S. Ct. at 1075. A rule is new when “not

dictated by precedent existing at the time the . . . conviction became final.” Teague, 489

                                          8
U.S. at 301, 109 S. Ct. at 1070 (emphasis in original). Echoing Justice Harlan, after

Teague, “[a] new rule applies retroactively in a collateral proceeding only if (1) the rule is

substantive or (2) the rule is a watershed rul[e] of criminal procedure implicating the

fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting,

549 U.S. 406, 416, 127 S. Ct. 1173, 1180 (2007) (internal quotation marks and citations

omitted).5

¶17    Although this framework originally focused on the retroactivity of rules used to

attack convictions, the Supreme Court has refined the framework in cases attacking

sentences. In Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934 (1989), Penry argued on

collateral review that the Eighth Amendment prohibits imposing the death penalty on an

intellectually disabled person. Penry, 492 U.S. at 328, 109 S. Ct. at 2952. Before

reaching the merits of that claim, the Court conducted the Teague retroactivity analysis.

The Court noted that Justice Harlan’s description of a substantive rule—one that places

“certain kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe”—is phrased in terms of “substantive categorical

guarantees accorded by the Constitution, regardless of the procedures followed.” Penry,

492 U.S. at 329, 109 S. Ct. at 2952 (emphasis added). Because, in the context of

sentencing, rules that “deprive[ ] the State of the power to impose a certain penalty” or
5
  We recognize that courts (including this Court and the United States Supreme Court) have
struggled with whether a substantive rule is an exception to the general rule of non-retroactivity,
or whether the general rule of non-retroactivity simply does not apply to substantive rules. See
Schriro v. Summerlin, 542 U.S. 348, 351 n.4, 124 S. Ct. 2519, 2523 n.4 (2004); State v.
Whitehorn, 2002 MT 54, ¶ 37, 309 Mont. 63, 43 P.3d 922 (2002). We think this a distinction
without significance. In this opinion, we refer to substantive rules as exceptions to the general
rule of non-retroactivity.
                                             9
prohibit a “certain category of punishment for a class of defendants because of their

status or offense” also are categorical guarantees, the Court determined that these types of

sentencing rules are substantive. Penry, 492 U.S. at 329-30, 109 S. Ct. at 2952-53. The

Court accordingly concluded that Penry’s claim called for a substantive rule not subject

to the general rule of non-retroactivity. Penry, 492 U.S. at 330, 109 S. Ct. at 2953.

¶18    By contrast, the Court has held that sentencing rules that do not “prohibit the

imposition of [a particular sentence] on a particular class of persons” are not substantive.

Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 1263-64 (1990) (concluding that a

prohibition against instructing a death penalty jury to avoid sympathy when determining

punishment is not a substantive rule). See also Sawyer v. Smith, 497 U.S. 227, 242, 110

S. Ct. 2822, 2831 (1990) (concluding that the substantive rule exception “has no

application” to a new rule prohibiting the imposition of capital punishment by a jury that

has been led to believe that the ultimate decision to impose the death penalty rests

elsewhere).

¶19    The United States Supreme Court further clarified the scope of the exceptions to

the general rule of non-retroactivity for sentencing rules in Schriro v. Summerlin, 542

U.S. 348, 124 S. Ct. 2519 (2004). The offender in that case sought to benefit from the

rule announced in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002), requiring that a

jury rather than a judge find aggravating factors necessary to impose a death sentence.

Schriro, 542 U.S. at 351, 122 S. Ct. at 2522. The Schriro Court stated, “A rule is

substantive rather than procedural if it alters the range of conduct or the class of persons

                                         10
that the law punishes. . . . In contrast, rules that regulate only the manner of determining

the defendant’s culpability are procedural.” Schriro, 542 U.S. at 353, 124 S. Ct. at 2523

(emphasis in original). Substantive sentencing rules that “place particular conduct or

persons covered by the statute beyond the state’s power to punish” are retroactive

because they “necessarily carry a significant risk” that the offender “faces a punishment

that the law cannot impose upon him.” Schriro, 542 U.S. at 352, 124 S. Ct. at 2522-23

(internal quotation marks and citation omitted). The Court concluded that the Ring rule

was not substantive because “the range of conduct punished by death . . . was the same

before Ring as after.” Schriro, 542 U.S. at 354, 124 S. Ct. at 2524.

¶20    The Court instead determined that the Ring rule was procedural because it “altered

the range of permissible methods for determining whether a defendant’s conduct is

punishable by death.” Schriro, 542 U.S. at 353, 124 S. Ct. at 2523. The Court held that

the Ring rule was not a watershed procedural rule, however, because it did not create an

“impermissibly large risk” of inaccuracy. Schriro, 542 U.S. at 356, 124 S. Ct. at 2525

(citations omitted).   The Schriro Court’s determination that the Ring rule was not

watershed is consistent with its application of that exception. Since adopting Justice

Harlan’s framework in 1989, the Supreme Court has never concluded that a new rule fits

into the watershed procedural rule exception, and has stated that it is “unlikely” it ever

will. Teague, 489 U.S. at 313, 109 S. Ct. at 1077. During that time, the Supreme Court

has provided only one example of a rule that meets the watershed procedural rule

exception—the rule announced in Gideon.

                                         11
                                             B.

¶21   The Montana Supreme Court has applied the federal retroactivity framework since

State v. Egelhoff, 272 Mont. 114, 125-27, 900 P.2d 260, 267 (1995). For example, in

State v. Whitehorn, 2002 MT 54, 309 Mont. 63, 50 P.3d 121, we examined the

retroactivity of the rule we announced in State v. Guillaume, 1999 MT 29, 293 Mont.

224, 975 P.2d 312.

¶22   Guillaume held that applying a weapons enhancement statute on top of an offense

that already includes use of a weapon in the elements of the offense is unconstitutional

under Montana’s double jeopardy clause.           Guillaume, ¶ 16.   In Whitehorn, after

surveying the federal retroactivity framework, we held that Guillaume was retroactive

because it created a substantive rule: the rule prohibited imposition of a certain

punishment (an additional punishment for use of a weapon) on a particular class of

offenders (offenders who already had been punished for the same conduct). Whitehorn,

¶¶ 36-42.

¶23   This Court’s Egelhoff decision appears to have assumed that the United States

Constitution requires state courts to apply the federal retroactivity framework.       See

Egelhoff, 272 Mont. at 125, 900 P.2d at 267 (“With regard to the question of retroactivity,

the United States Supreme Court has additionally made its position more clear and we

find this also to be binding upon us.”). In Danforth v. Minnesota, 552 U.S. 264, 128

S. Ct. 1029 (2008), the United States Supreme Court clarified that its retroactivity

analysis need not be followed by state courts. Danforth, 552 U.S. at 280-81, 128 S. Ct. at

                                        12
1041. Danforth noted that Egelhoff placed this Court among three state high courts that

incorrectly concluded that states must apply the federal retroactivity framework.

Danforth, 552 U.S. at 281 n.17, 128 S. Ct. at 1042 n.17. Nonetheless, we have continued

to apply the federal framework in the years since Danforth. In Reichmand, 2010 MT

228, 358 Mont. 68, 243 P.3d 423, we recognized this Court’s “right to craft its own

unique retroactivity jurisprudence, using federal requirements as a floor,” before

employing the Griffith principle that rules are retroactive on direct review to address a

claim under a state constitutional right.6 Reichmand, ¶¶ 13-15. Just recently, in State v.

Cook, 2012 MT 34, 364 Mont. 161, 272 P.3d 50, we recognized the distinction between

substantive and procedural rules for purposes of determining retroactivity on collateral

review. Cook, ¶ 17. We applied the federal framework to determine that the rule the

petitioner invoked was not retroactive because, although it was new and procedural, it

was not watershed. Cook, ¶¶ 17-19.

¶24    Against this backdrop of faithful application, Beach has not made a principled

argument for departing from the United States Supreme Court’s retroactivity framework

to resolve his petition. In both his briefs and in oral argument, Beach focused on showing

that Miller is retroactive under the federal retroactivity framework. Beach’s briefing on

applying a state-specific retroactivity standard is scant, and his oral argument raised the
6
  Reichmand also suggested that “the U.S. Supreme Court’s retroactivity analysis for federal
constitutional errors is binding upon the states when federal constitutional errors are involved.”
Reichmand, ¶ 13 (emphasis in original). This statement is correct to the extent that it means that
the federal doctrine effectively sets the floor for the retroactivity of federal rights in Montana.
But this statement should not be taken to mean that this Court cannot provide greater
retroactivity to federal rights than permitted under the federal standard—under Danforth, we are
not required to employ the federal retroactivity analysis for either federal or state rights.
                                              13
possibility of a different standard only briefly, in rebuttal to the State’s argument. In

neither his briefs nor in oral argument did Beach specify what standard we should apply

if not the retroactivity standard we have applied in previous cases.

¶25    In the limited argument Beach has developed on departing from the retroactivity

framework, he has suggested that Miller should be applied retroactively to his case

because Miller implicates fundamental rights found in Article II, Sections 15 and 22 of

the Montana Constitution. Beach also recounts Whitehorn’s comment that “it is illogical

for this Court to refuse to extend constitutional protections to citizens simply because

their claims are raised by collateral review rather than by way of direct appeal.”

Whitehorn, ¶ 42.     He fails to note, however, the very next line in that opinion:

“Accordingly, we conclude that . . . this Court erred in failing to recognize and apply the

foregoing case law that distinguishes a procedural rule from a substantive rule when

addressing retroactivity.” Whitehorn, ¶ 42 (emphasis added). In Whitehorn, we applied

the federal retroactivity framework, recognizing the illogic of not applying substantive

rules retroactively when that would permit “the criminal process to rest at a point where it

ought properly never to repose.” Mackey, 401 U.S. at 693 (Harlan, J., dissenting).

¶26    Beach has failed to explain why the cited provisions of the Montana Constitution

require a different retroactivity model for Miller. See State v. Covington, 2012 MT 31,

¶ 21, 364 Mont. 118, 272 P.3d 43. Beach has further failed to address why Miller

requires retroactive application in light of the interests that collateral review affects and

the purposes that it serves. We are not obligated to develop legal analysis that may lend

                                         14
support to an appellant’s arguments. In re Estate of Bayers, 1999 MT 154, ¶ 19, 295

Mont. 89, 983 P.2d 339 (1999).

¶27    Two of today’s dissenting opinions develop their own legal analyses, each

proffering a new path for determining retroactivity not advanced by Beach. Justice

Wheat offers an ad hoc approach, suggesting that the Court simply compare the interests

of fairness and finality to determine the retroactivity of the rule invoked in this case.

Dissent, ¶ 60. But his Dissent does not offer a measure by which to compare these

interests. Nor does it acknowledge the aspects of fairness that the interest in finality

subsumes—stability in the law, timely resolution of disputes, and closure for everyone

involved in a case, including victims. Dissent, ¶¶ 63-65; see Mackey, 401 U.S. at 691

(Harlan, J., dissenting) (“No one, not criminal defendants, not the judicial system, not

society as a whole is benefited by a judgment providing a man shall tentatively go to jail

today, but tomorrow and every day thereafter his continued incarceration shall be subject

to fresh litigation on issues already resolved.”).    The logical conclusion of Justice

Wheat’s approach is that a conviction would never be final in this state until a reviewing

court deems it “fair” to so declare.

¶28    Meanwhile, Justice Shea would embark on a novel state-specific approach to

retroactivity by overruling several prior decisions of this Court. He posits that those

decisions perpetuated Egelhoff’s mistaken assumption that we are bound to apply the

federal retroactivity framework. Dissent, ¶ 97. Justice Shea faults the Court’s analysis in

Reichmand, but overlooks our express, and correct, observation in that case that Danforth

                                        15
permits this Court to adopt any retroactivity standard with regard to state constitutional

rights. Reichmand, ¶ 13. In Reichmand, we examined the retroactivity of a new rule

affecting a state constitutional right. Reichmand, ¶ 2. After acknowledging our ability to

choose any standard, we applied the federal retroactivity framework to that state right.

Reichmand, ¶ 15. We did likewise in Cook, where we reaffirmed that “[r]etroactive

application is needed in situations that ‘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.” Cook, ¶ 17 (quoting Schriro, 542

U.S. at 351, 124 S. Ct. at 2522-23). It cannot be said that the Court did not “voluntarily”

make the federal retroactivity framework its own in these two cases. Dissent, ¶ 100.7

¶29    Most importantly, Justices Wheat and Shea’s respective theories could have been,

but were not, argued by Beach. As a result, this Court has not had the benefit of the

State’s position on the approaches that Justices Wheat and Shea would have us adopt.

Under this Court’s policy of stare decisis, we keep faith with precedent “unless it is

demonstrably made to appear that” our precedent “manifestly is wrong.” State ex rel.

Perry v. Dist. Ct., 145 Mont. 287, 310, 400 P.2d 648, 660 (1965) (citation omitted). The

burden of this demonstration is on the party seeking to overturn the precedent. See In re

McCabe, 168 Mont. 334, 337, 544 P.2d 825, 827 (1975) (noting the petitioner’s failure to


7
 The Dissent’s reference to State v. Maine, 2011 MT 90, 360 Mont. 182, 255 P.3d 64, does not
bolster its analysis. Our decision in Maine was supported by precedent going back decades.
Maine, ¶ 45 (Baker, J., concurring). In this case, our precedent, reaffirmed most recently in
Reichmand and Cook, dictates a result in conflict with what Justice Shea proposes. In addition,
Maine addressed arguments squarely presented and briefed by the parties. Maine, ¶ 27.
                                          16
“demonstrate any sufficient reason for this Court to overturn” its prior construction); see

also U.S. v. Int’l Bus. Mach. Corp., 517 U.S. 843, 856, 116 S. Ct. 1793, 1801 (1996)

(“Though from time to time we have overruled governing decisions that are unworkable

or are badly reasoned, we have rarely done so on grounds not advanced by the parties.”)

(internal citations and quotations omitted).        Beach has not met his burden to so

demonstrate, and it would be unwise for this Court to depart from long-settled precedent

to apply an analysis that has not been developed or tested by the parties to the case. The

Court accordingly will apply the same retroactivity framework in this case that it has

applied to every previous collateral review case since Teague was decided.

                                              IV.

                                              A.

¶30    Before getting to the retroactivity of the rule Beach invokes, we must first

establish that he, in fact, invokes a new rule. Beach argues that, under Miller, a sentencer

must consider a juvenile’s youth before sentencing that juvenile to life without parole.

The State responds that Miller does not establish this rule. Instead, the State argues,

Miller merely bars the mandatory imposition of a life without parole sentence on a

juvenile.    The State suggests that Miller’s language about required sentencing

considerations is dicta.

¶31    Dictum is “[a]n opinion by a court . . . that is not essential to the decision and

therefore not binding even if it may later be accorded some weight.” Black’s Law

Dictionary 549 (Bryan A. Garner ed., 10th ed. 2009). Miller’s statements about required

                                         17
sentencing considerations are not dicta. The Miller Court held that mandatory imposition

of a life sentence is unconstitutional because a mandatory scheme prevents a sentencer

from considering how a juvenile’s youth affects the proportionality of that sentence, and

the Eighth Amendment requires a sentencer to so consider. The Supreme Court could not

have been clearer when it said, “Although we do not foreclose a sentencer’s ability to

[impose life without parole] 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, 567 U.S. at ___, 132 S. Ct. at 2469.

¶32    We think it clear that Miller establishes two rules. First, sentencing schemes that

mandate life incarceration without the possibility of parole for juvenile offenders are

unconstitutional. Miller, 567 U.S. at ___, 132 S. Ct. at 2469. Second, a sentencer must

“follow a certain process” before imposing a life without parole sentence on a juvenile.

Miller, 567 U.S. at ___, 132 S. Ct. at 2471. Beach invokes the second rule.

¶33    Under the retroactivity framework, new rules are treated differently from old rules.

See Penry, 492 U.S. at 319, 109 S. Ct. at 2947. An offender on collateral review

generally cannot benefit from a new rule, whereas she can benefit from an old rule.

Teague, 489 U.S. at 310, 109 S. Ct. at 1075. A rule is new unless dictated by precedent

existing at the time the offender’s conviction became final. Teague, 489 U.S. at 301, 109

S. Ct. at 1070.

¶34    Beach has omitted argument on this point, seemingly conceding the novelty of

Miller’s sentencing consideration rule. Indeed, Miller rests on the twin recognitions that

                                         18
(1) children are different for sentencing purposes, and (2) life sentences without the

possibility of parole are similar to death sentences when imposed on juveniles. See

Miller, 567 U.S. at ___, 132 S. Ct. at 2463-66.         The Supreme Court did not fully

recognize these principles until Roper in 2005 and Graham in 2010. Beach’s conviction

became final in 1985. Although the case law existing in 1985 may have foreshadowed

Miller’s sentencing consideration rule, see Eddings v. Oklahoma, 455 U.S. 104, 115, 102

S. Ct. 869, 877 (1982), these cases certainly did not dictate or compel such a rule. We

conclude that Miller’s sentencing consideration rule is a new rule, subject to the general

rule of non-retroactivity on collateral review.

                                               B.

¶35    A new rule is not retroactive on collateral review unless it is a substantive rule or a

watershed procedural rule. Teague, 489 U.S. at 310-11, 109 S. Ct. at 1075-76. Since

2012, many state and lower federal courts have wrestled with Miller’s retroactivity.

These courts appear to agree that Miller creates a new rule subject to the general rule of

non-retroactivity. See, e.g., In re Morgan, 713 F.3d 1365, 1366-67 (11th Cir. 2013);

Diatchenko v. Dist. Atty. for Suffolk Dist., 466 Mass. 655, 667 (2013). The courts

diverge, however, on whether Miller fits into one of the exceptions to the general rule.

Courts that have held Miller retroactive generally conceive of Miller as creating a

substantive rule. See, e.g., Illinois v. Davis, 6 N.E.3d 709, 722 (Ill. 2014); Iowa v.

Ragland, 836 N.W.2d 107, 117 (Iowa 2013). By contrast, courts that have held Miller

non-retroactive generally conceive of Miller as creating a procedural rule, but not a

                                          19
watershed procedural rule. See, e.g., Michigan v. Carp, 496 Mich. 440, 495 (2014);

Pennsylvania v. Cunningham, 81 A.3d 1, 26-29 (Pa. 2013).

¶36    Most of these courts have been concerned with whether Miller’s prohibition on

mandatory life without parole sentences is retroactive.8 See, e.g., Davis, 6 N.E.3d at 723;

Carp, 496 Mich. at 483 n.13. But see Aiken v. Byars, 410 S.C. 534, 543-44 (2014).

Because Miller’s mandatory sentencing rule has no application in Montana, the ensuing

analysis does not concern—at least directly—the retroactivity of that rule. We focus

instead on the retroactivity of Miller’s rule requiring consideration of a juvenile

offender’s youth before imposing a life without parole sentence.

¶37    Beach includes only one sentence in his brief suggesting that Miller’s sentencing

consideration rule may represent a watershed procedural rule. Beach instead has focused

his retroactivity argument on showing that the Miller rule is substantive. The strategy

makes sense considering that the United States Supreme Court effectively has interpreted

the watershed procedural rule exception as a “null set.”              R. Fallon, J. Manning,

D. Meltzer, & D. Shapiro, Hart and Wechsler’s The Federal Courts and the Federal

System 1246 (6th ed. 2009); see also Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir.

2003) (watershed procedural rules under the federal retroactivity framework are

“hen’s-teeth rare”).     The Supreme Court continuously has equated the watershed

procedural rule exception with Gideon and Gideon alone. In this context, we cannot say

that Miller’s rule is a watershed procedural rule.         Montana always has permitted a

8
  It stands to reason that jurisdictions that at one time mandated juvenile life without parole
sentences have more offenders who stand to benefit from Miller and to litigate its retroactivity.
                                            20
sentencer to consider a juvenile offender’s youth when sentencing that offender to a term

of years with no possibility of parole. Miller’s rule merely goes a step further by

requiring that consideration. The rule’s effect on the fairness and accuracy of a criminal

proceeding is not on par with Gideon. Accordingly, Miller’s sentencing consideration

rule is not a watershed procedural rule.

¶38    Justice Cotter agrees with Beach that Miller announced a new substantive rule.

Dissent, ¶ 115. A substantive sentencing rule is a rule that “prohibit[s] a certain category

of punishment for a class of defendants because of their status or offense.” Penry, 492

U.S. at 330, 109 S. Ct. at 2953. In other words, a substantive sentencing rule is a

“categorical guarantee[] accorded by the Constitution, regardless of the procedures

followed,” Penry, 492 U.S. at 329, 109 S. Ct. at 2952, that “place[s] particular conduct or

persons covered by the statute beyond the state’s power” to subject to a particular

punishment, Schriro, 542 U.S. at 352, 124 S. Ct. at 2522-23. In Miller, the Supreme

Court specifically stated that it did “not categorically bar a penalty for a class of

offenders or type of crime,” and instead mandated “only that a sentencer follow a certain

process . . . before imposing” life without parole on a juvenile. Miller, 367 U.S. at ___,

132 S. Ct. at 2471 (emphases added). Miller did not hold that juvenile life without parole

sentences are categorically unconstitutional. Miller, 367 U.S. at ___, 132 S. Ct. at 2469.

Miller “dictated what process must take place before a life-without parole sentence could

be imposed, [but] it did not prohibit a state from imposing that penalty on a certain class




                                           21
of offenders.” 7 W. Lafave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 28.6(e)

(3rd ed. 2007, 2014-2015 supplement).

¶39    Beach’s own summary of Miller defeats his suggestion that Miller is substantive.

“Miller,” he explains, “prohibits a particular punishment (life-without-parole) for a class

of defendants (juveniles) unless specific youth related factors are first considered.”

(Emphasis added.)      In other words, under Miller, a sentencing court retains the

constitutional authority to sentence a juvenile to life without parole. If Beach’s case were

remanded for sentencing, a sentencing judge, upon following Miller’s sentencing

consideration rule, could resentence Beach to the exact same sentence he received before.

This differs from a substantive rule. For instance, regardless of the procedures followed,

a sentencer after Graham could not resentence a juvenile non-homicide offender to life

without parole; a sentencer after Roper could not resentence a juvenile to the death

penalty; a sentencer after Atkins could not resentence an intellectually disabled offender

to the death penalty; and a sentencer after Kennedy could not resentence a non-homicide

offender to the death penalty. Because Miller’s sentencing consideration rule “regulates

only the manner of determining” a sentence by requiring a certain process, and does not

alter the range of punishment that Beach could receive, Schriro, 542 U.S. at 353, 124

S. Ct. at 2523, it is procedural and not substantive.9

¶40    Beach seeks to forestall this conclusion by reframing the required considerations

under Miller as “elements” of a life without parole sentence imposed on a juvenile. The

9
  Justice Wheat’s Dissent appears to agree, Dissent, ¶ 54, and Justice Shea’s Dissent does not
appear to take issue with this analysis.
                                          22
case on which Justice Cotter relies, Dissent ¶¶ 118-20, sounds a similar theme. See In re

Willover, No. HO40757, 2015 Cal. App. LEXIS 322, *20-21 (stating that Miller created

“a rule that sets forth the specific considerations to be made during a sentencing decision”

of a juvenile homicide offender). An element is a certain fact that is essential to an

offense or punishment. See Alleyne v. United States, 570 U.S. ___, ___, 133 S. Ct. 2151,

2155 (2013). By its terms, Miller requires only that a sentencer consider certain factors;

it does not make the finding of “certain fact[s] essential” to a life without parole sentence.

Schriro, 542 U.S. at 354, 124 S. Ct. at 2524.

¶41    The logical conclusion to Beach’s elements argument is that any new rule that

conditions the imposition of a particular sentence on a particular procedure would be

considered substantive. But that does not comport with cases holding such rules to be

procedural only. See Beard v. Banks, 542 U.S. 406, 420, 124 S. Ct. 2504, 2515 (2006)

(finding non-retroactive a rule prohibiting imposition of the death penalty by jury unless

the jury can consider all mitigating factors); Schriro, 542 U.S. at 354, 124 S. Ct. at 2524

(concluding that a rule prohibiting imposition of the death penalty unless elements of that

sentence are found by a jury is procedural and not substantive); Sawyer v. Smith, 497

U.S. at 242, 110 S. Ct. at 2831 (finding non-substantive a rule that prohibits the

imposition of the death penalty by a sentencer under the mistaken belief that

responsibility for determining the propriety of the death penalty rests elsewhere). In all

of these cases, just as in Beach’s case, the examined rules did not “prohibit[ ] a certain

category of punishment for a class of defendants because of their status or offense,”

                                          23
Penry, 492 U.S. at 330, 109 S. Ct. at 2953—the rules instead prohibited a certain

category of punishment unless the sentencer followed a prescribed process.               This

demonstrates a significant difference from the Willover case. The court in Willover

determined that, “Because petitioner was sentenced at a time when the prevailing case

law required a presumption of [life without parole], there is a ‘significant risk’ that

petitioner ‘faces a punishment that the law cannot impose upon him.’” In re Willover,

2015 Cal. App. LEXIS 322 at *21. No such presumption existed in Montana law at the

time Beach was sentenced.

¶42    Finally, if the Miller considerations are elements of a life without parole sentence,

Beach does not explain how his proposed solution to the constitutional infirmity of his

sentence—resentencing by a judge who must consider these elements—is any more

constitutional than his original sentence, considering that all elements necessary to raise

the maximum allowable sentence for a crime must be found by a jury, not by a judge.

See Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S. Ct. 2348, 2355 (2000).

                                               C.

¶43    Beach makes three more arguments, all of which may bear on the Miller rule’s

retroactivity in general, but do not bear directly on whether the Miller rule fits into one of

the retroactivity framework’s exceptions.

¶44    First, Beach notes that the companion case in Miller was Jackson v. Hobbs, an

appeal by a prisoner on collateral review. Because Jackson benefitted from Miller, and




                                          24
Beach is similarly situated to Jackson on collateral review, Beach argues that fairness

dictates that he too should benefit from Miller’s rule.

¶45    Retroactivity, however, is an affirmative defense to be raised by the government.

“[A] federal court may, but need not, decline to apply [the retroactivity framework] if the

[s]tate does not argue it.” Caspari v. Bohlen, 510 U.S. 383, 389, 114 S. Ct. 948, 953

(1994). Arkansas (the state responding to Jackson’s petition for habeas corpus) did not

argue to the Supreme Court that the rule Jackson sought was non-retroactive.10 Given

this omission, the Supreme Court did not examine or decide the retroactivity of the Miller

rule. Arkansas’s waiver of its retroactivity defense in Jackson’s appeal does not mean

that the Supreme Court determined that Miller is retroactive.

¶46    Second, Beach argues that Miller is retroactive because the cases upon which it

relies are retroactive.   Beach is correct that Roper and Graham are retroactive as

substantive rules. See, e.g., In re Sparks, 658 F.3d 257, 262 (5th Cir. 2011) (concluding

that Graham is substantive and retroactive); Little v. Dretke, 407 F. Supp. 2d 819, 823-24

(W.D. Tex. 2005) (concluding that Roper is substantive and retroactive). Roper and

Graham are similar to Kennedy and Atkins in that they “categorically bar a penalty for a

class of offenders or type of crime.” Miller, 367 U.S. at ___, 132 S. Ct. at 2471. But

Miller explicitly disclaimed creating a categorical bar to a type of punishment. Miller,

367 U.S. at ___, 132 S. Ct. at 2471. In its effect, Miller more closely resembles two of

the other cases upon which it relied—Woodson and Lockett, which invalidated mandatory

10
   See Brief for Respondent, Jackson v. Hobbs, http://perma.cc/7bz4-vfyc (U.S. 2012)
(No. 10-9647).
                                     25
death penalty sentences and required individualized sentencing. Lockett, 438 U.S. at 604,

98 S. Ct. at 2964-65; Woodson, 428 U.S. at 303-05, 96 S. Ct. at 2991-92. Beach has not

identified any cases holding that Woodson and Lockett qualify as retroactive under the

current retroactivity framework.11

¶47    Third, Beach argues that it would be unjust to permit offenders on direct review to

benefit from Miller but not to afford the same benefit to offenders on collateral review.

In a case Beach cited as supplemental authority, and quoted in oral argument, the

California Court of Appeal for the Second Judicial District made a similar point:

       We find particularly troubling the apparent inequity that would arise if the
       prospect of an individualized, discretionary judicial determination of
       whether a juvenile murderer should be afforded parole eligibility would
       depend solely upon the happenstance of the precise moment that the
       defendant’s conviction became final. No court that has rejected the
       retroactive application of Miller has advanced a rationale to resolve this
       inequity.

In re Wilson, 233 Cal. App. 4th 544, 567 (2015). With this argument, the California

court and Beach fail to recognize two things. First, Miller’s non-retroactivity is no more

inequitable than the non-retroactivity of the rules in Beard, Schriro, or Sawyer, all of

which similarly involved procedures meant to ensure the accuracy of sentences, yet


11
   Beach cites Sumner v. Shuman, 483 U.S. 66, 72, 107 S. Ct. 2716, 2727 (1987) (invalidating a
statute mandating a death sentence for a prisoner who kills someone while serving a life
sentence), as an example of an instance when Woodson and Lockett were applied retroactively on
collateral review. But Sumner does not address retroactivity under the current framework;
indeed, Sumner does not appear to address a retroactivity argument at all. Moreover, Woodson
was announced before Sumner’s conviction became final, meaning Woodson was not applied
retroactively in Sumner. Beach also cites Campbell v. Blodgett, 978 F.2d 1502 (9th Cir. 1992),
Thigpen v. Thigpen, 926 F.2d 1003 (11th Cir. 1991), and McDougall v. Dixon, 921 F.2d 518 (4th
Cir. 1990), to show Sumner’s retroactive application, but none of these cases appear to address
Sumner’s retroactivity.
                                           26
involved the harshest of punishments—the death penalty. Second, the concept of equity

between offenders on direct and collateral review does not stand in a vacuum. For

instance, Justice Wheat’s protest that it is unfair to not apply Miller by virtue of the

“mere[]” timing of Beach’s conviction, Dissent, ¶ 73, ignores the unfairness of

re-opening this case after a “mere” thirty years have passed without closure for the

victim’s family.    The law strikes a balance between the interests of equity among

offenders and finality of convictions. That balance is embodied in the principles of

retroactivity that we have applied in our prior cases and that we apply again today.

                                     CONCLUSION

¶48    Because the Miller sentencing consideration rule is new and is neither a

substantive rule nor a watershed procedural rule, we conclude that it is not retroactive to

Beach’s claim on collateral review. Retroactivity is a threshold issue, Teague, 489 U.S.

at 300, 109 S. Ct. at 1070, and Beach does not pass the threshold. Accordingly, we do

not reach the merits in this case.

                                         ORDER

¶49    The petition for writ of habeas corpus is denied.

       DATED this 5th day of May, 2015.


                                                 /S/ BETH BAKER

We concur:

/S/ JIM RICE
/S/ JAMES B. WHEELIS, District Judge
sitting in place of Chief Justice Mike McGrath
                                         27
Justice Laurie McKinnon, specially concurring.

¶50    Beach asks this Court, once again, to ignore the important public interest in

ensuring the finality of state court judgments and to conclude that, no matter how many

years have passed since a petitioner’s conviction has become final, if he can scrape

together enough developments in the law over thirty years, perhaps he might receive a

better outcome at a new sentencing. Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455,

2469 (2012), does not hold that life without parole sentences for juveniles are

categorically unconstitutional and can never be imposed. Opinion, ¶ 10. Beach concedes

that the holding of Miller does not apply to his case. Opinion, ¶ 11. Nevertheless, we go

forward with an extensive retroactivity analysis of Miller after finding that consideration

of youth at sentencing is a “new” procedural rule, Opinion, ¶ 34, though one that we

ultimately conclude need not be applied retroactively, Opinion, ¶ 48. We do this in the

context of Montana’s discretionary sentencing scheme, which specifically requires the

sentencing judge to consider the individual characteristics, needs, circumstances, and

potentialities of the person being sentenced.1 Montana has always required a judge to

consider the individual characteristics of an offender—including age—in imposing a


1
  At the time Judge Sorte sentenced Beach, the sentencing policy reflected in § 46-18-101, MCA
(1978), provided:

       This chapter shall be liberally construed to the end that persons convicted of a
       crime shall be dealt with in accordance with their individual characteristics,
       circumstances, needs and potentialities; that dangerous offenders shall be
       correctively treated in custody for long terms as need; and that other offenders
       shall be dealt with by probation, suspended sentence, or fine whenever such
       disposition appears practicable and not detrimental to the needs of public safety
       and the welfare of the individual.
                                           28
sentence.   There is nothing new about the rationale that juvenile offenders are less

culpable than adult offenders, nor does the application of this rationale constitute a new

rule in Montana. The significance of this rationale is to demonstrate that states with

sentencing schemes mandating life without parole for juveniles violate the Eighth and

Fourteenth Amendments, because such mandates fails to consider the youth of the

offender.   Given our individualized and discretionary sentencing statutes and the

obligations they already impose upon a judge to consider a person’s potential, needs, and

individual characteristics, I am not sure of the value of a so-called new procedural rule

requiring a judge to “‘follow a certain process,’” Opinion, ¶ 32 (quoting Miller, 567 U.S.

at ___, 132 S. Ct. at 2471), when that process is, in fact, already followed in Montana. In

my opinion, Beach has failed to meet his burden of proving that Montana’s sentencing

scheme is not consistent with the requirements of Miller.

¶51    The habeas corpus statute reflects a narrow scope of relief which, though equitable

in nature, is an extraordinary remedy. Lott v. State, 2006 MT 279, ¶¶ 20-21, 334 Mont.

270, 150 P.3d 337. The writ is “not available to attack the validity of the conviction or

sentence of a person who has been adjudged guilty of an offense in a court of record and

has exhausted the remedy of appeal.” Section 46-22-101(2), MCA. We apply these

principles routinely to other petitioners, and they should be applied equally to Beach.

Beach received a facially valid sentence: Judge Sorte imposed a lawful sentence for

Beach’s conviction of deliberate homicide after considering a PSI that not only specified

Beach’s age, but set forth his juvenile history, family background, relationships, religion,

                                         29
and any other relevant information for sentencing. Judge Sorte had full discretion in

sentencing Beach, including the ability to find a statutory exception to the mandatory

minimum based on Beach’s age. See § 46-18-222(1), MCA (1978). Unlike the fourteen-

year-old defendants in Miller, 567 U.S. at ___, 132 S. Ct. at 2460, Beach was a few

months shy of eighteen when he committed this offense, an adult when he confessed to

law enforcement, an adult during his trial for homicide, and an adult when he was

sentenced.

¶52       I cannot state my opinion more clearly and forcefully than the State, when it

writes:

          Ted Nees’s letter eloquently expresses the anguish of Kim Nees’s family.
          The Nees family clearly thought their tragic entanglement with Beach
          ended back in 1984. Yet, Beach repeatedly manages to be the beneficiary
          of hearings and procedures that no other convicted criminal is allowed.
          Beach is entitled to nothing more.


                                                    /S/ LAURIE McKINNON

Justice Michael E Wheat, dissenting.

¶53       I agree with much of the plurality opinion, and I specifically join Section I of that

opinion. In this case, however, I would depart from the nonretroactivity rule of Teague v.

Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), as applied by this Court in the line of cases

beginning with State v. Egelhoff, 272 Mont. 114, 900 P.2d 260 (1995).1 The rationale of


1
   The plurality implies that we cannot consider whether to depart from this retroactivity
framework because Beach did not argue that we should do so. However, we have addressed
arguments and even issues not raised or supported by parties where failing to do so would cause
substantial injustice. State v. Andersen-Conway, 2007 MT 281, ¶ 14, 339 Mont. 439, 171 P.3d
                                           30
those cases does not justify nonretroactivity in this case, and I would retroactively give

Beach the benefit of the U.S. Supreme Court’s decision in Miller v. Alabama, ___ U.S.

___, 132 S. Ct. 2455 (2012). In light of that decision, I would find Beach’s sentence to

be unconstitutional and grant his petition for a writ of habeas corpus. For these reasons, I

concur in Section I and dissent from the rest of the plurality’s opinion and its order.

                                        I. Retroactivity

¶54    I agree with the plurality that the retroactivity rule of Teague would preclude

Beach from receiving the benefit of the procedural rule announced in Miller. We are not,

however, limited by the retroactivity rule of Teague in state collateral review

proceedings, and we are free to provide broader retroactive application of new rules than

advocated by the Teague plurality. Opinion, ¶ 23 n.6; see also Danforth v. Minnesota,

552 U.S. 264, 275, 277, 128 S. Ct. 1029, 1038-39 (2008) (“Neither Linkletter nor Teague

explicitly or implicitly constrained the authority of the States to provide remedies for a

broader range of constitutional violations than are redressable on federal habeas. . . . A

close reading of the Teague opinion makes clear that the rule it established was tailored

to the unique context of federal habeas and therefore had no bearing on whether States

could provide broader relief in their own postconviction proceedings than required by

that opinion.”). Although we have applied the nonretroactivity rule of Teague to state

collateral review proceedings since first considering it in Egelhoff, I would depart from



678. Given the importance of the constitutional issues at stake and the potential for substantial
injustice resulting from an incorrect decision, we are not required to resolve the issues raised by
the parties based on their reasoning alone.
                                             31
that rule here. Considering the rationale and the interests upon which the nonretroactivity

rule of Teague is based,2 the interests at stake in the rule announced in Miller, and the

value this Court and the people of Montana place on those interests, I would retroactively

give Beach the benefit of the rule announced in Miller.

       1. The rationale for the nonretroactivity rule of Teague

¶55    A plurality of the Supreme Court adopted a new rule governing retroactivity in

Teague.3 489 U.S. at 305, 310, 109 S. Ct. at 1072-73, 1075. The general rule of

nonretroactivity it adopted was an exercise of the U.S. Supreme Court’s power to

interpret the federal habeas corpus statute. Danforth, 552 U.S. at 278, 128 S. Ct. at

1039-40. The purposes for the federal writ of habeas corpus provided the “relevant frame

of reference,” and the resulting nonretroactivity rule was “tailored to the unique context

of federal habeas.” Danforth, 552 U.S. at 277, 279, 128 S. Ct. at 1039-40; Teague, 489

U.S. at 306, 109 S. Ct. at 1073.

¶56    The plurality recognized two primary purposes for the writ. The first purpose,

deterrence, provided the foundation for the general nonretroactivity rule. The plurality

stated that “the threat of habeas serves as a necessary . . . incentive for trial and appellate

courts throughout the land to conduct their proceedings in a manner consistent with

established constitutional standards.” Teague, 489 U.S. at 306, 109 S. Ct. at 1073. In

2
  This Court has never provided reasoning for adopting the retroactivity rule of Teague. See,
e.g., State v. Cook, 2012 MT 34, ¶¶ 17-19, 364 Mont. 161, 272 P.3d 50; State v. Reichmand,
2010 MT 228, ¶¶ 13-15, 358 Mont. 68, 243 P.3d 423; Egelhoff, 272 Mont. at 126, 900 P.2d at
267.
3
  The rule was adopted by a majority of the U.S. Supreme Court in Penry v. Lynaugh, 492 U.S.
302, 313-14, 109 S. Ct. 2934, 2944 (1989).
                                           32
order to perform this deterrence purpose, the plurality reasoned, rules need not be applied

retroactively. Instead, “the habeas court need only apply the constitutional standards that

prevailed at the time the original proceedings took place.” Teague, 489 U.S. at 306, 109

S. Ct. at 1073.

¶57    Having decided that nonretroactivity was consistent with purposes of habeas

corpus, the plurality considered the interests of comity and finality to better define the

scope of review. It decided that nonretroactivity of new rules is preferred. Teague, 489

U.S. at 307-08, 109 S. Ct. at 1073-75. The interest of finality is the interest in reducing a

controversy to a final judgment not subject to further judicial revision. Teague, 489 U.S.

at 306, 109 S. Ct. at 1073. This interest, of course, weighed in favor of nonretroactivity.

The plurality considered the interest to be important, because “[w]ithout finality,” it said,

“the criminal law is deprived of much of its deterrent effect.” Teague, 489 U.S. at 309,

109 S. Ct. at 1074. The interest of comity also weighed in favor of nonretroactivity. The

plurality reasoned that “the application of new rules to cases on collateral review . . .

continually forces the States to marshal resources in order to keep in prison defendants

whose trials and appeals conformed to then-existing constitutional standards.” Teague,

489 U.S. at 310, 109 S. Ct. at 1075. It decided that the “costs imposed upon the State[s]

by retroactive application of new rules of constitutional law on habeas corpus . . .

generally far outweigh the benefits of this application.” Teague, 489 U.S. at 310, 109

S. Ct. at 1075 (quoting Solem v. Stumes, 465 U.S. 638, 654, 104 S. Ct. 1338, 1347 (1984)

(Powell, J., concurring)) (modifications in original). Based on the deterrence purpose of

                                         33
habeas corpus and the scope of review dictated by comity and finality, the plurality

concluded that a general rule of nonretroactivity was appropriate for federal habeas

corpus review. Teague, 489 U.S. at 310, 109 S. Ct. at 1075.

¶58    The limited exceptions the plurality recognized to this rule were based on a second

purpose for federal habeas corpus, namely “to assure that no man has been incarcerated

under a procedure which creates an impermissibly large risk that the innocent will be

convicted.” Teague, 489 U.S. at 312, 109 S. Ct. at 1076. This was a relatively slight

consideration for the plurality, however, as “[t]he Court has never defined the scope of

the writ simply by reference to a perceived need to assure that an individual accused of

crime is afforded a trial free of constitutional error.” Teague, 489 U.S. at 308, 109 S. Ct.

at 1074.   The plurality, therefore, drew the exceptions to the nonretroactivity rule

narrowly, concluding that only where the fundamental fairness of a proceeding was

implicated or where “bedrock procedural elements . . . vitiate the fairness of a particular

conviction,” would there be an impermissibly large risk of unfairness requiring

retroactive application of a new rule. Teague, 489 U.S. at 311, 109 S. Ct. at 1076

(emphasis in original). Such cases, the plurality declared, would be few and far between.

See Teague, 489 U.S. at 311, 109 S. Ct. at 1076.

¶59    In crafting its rule, the plurality ultimately concluded that while fairness weighed

in favor of retroactive application of new rules, it was a relatively slight consideration

and was generally outweighed in the context of federal habeas review by considerations




                                         34
of finality, comity, and the writ’s deterrence purpose. Teague, 489 U.S. at 306, 309-10,

109 S. Ct. at 1073-75.

       2. The rationale of Teague does not justify nonretroactivity in this case

¶60    Balancing these same interests in the context of this case and the Montana writ of

habeas corpus, I would depart from the rule of Teague. Nonretroactive application of

Miller will lead to unfair results, and unlike in Teague, the relevant countervailing

interests are not sufficient to justify such results in this case. More specifically, our writ

serves a different purpose than the federal writ, and, in this context and considering the

rule we are asked to apply, fairness outweighs considerations of comity and finality.

Therefore, the rationale of the Teague plurality does not justify application of its

nonretroactivity rule in this case, and we should give Beach the benefit of Miller.

              a. The purposes for our writ of habeas corpus

¶61    We have recognized that “Montana’s guarantee of the privilege of habeas corpus

embodies a fundamental, intrinsic principle: the right to challenge the cause of one’s

imprisonment.” Lott v. State, 2006 MT 279, ¶ 7, 334 Mont. 270, 150 P.3d 337. Rather

than a mere deterrent, the writ is the “birthright of the people” and “one of the most

important safeguards of the liberty of the subject.” Lott, ¶ 6. Indeed, our Constitution

guards the writ more completely than the Federal Constitution. Compare Mont. Const.

art. II, § 19 with U.S. Const. art. I, § 9. Rather than primarily a deterrent to the courts, the

writ in Montana is a tool for achieving justice. See Order, Paranteau v. Green 6-7, No.

OP 13-0769 (Mar. 4, 2014); Lott, ¶¶ 7, 9, 20. Thus, I cannot say, as the Teague plurality

                                           35
did, that the primary purpose of the writ can readily be served in all cases by merely

“apply[ing] the constitutional standards that prevailed at the time the original proceedings

took place.” Teague, 489 U.S. at 306, 109 S. Ct. at 1073.

              b. Comity does not affect this decision

¶62    Interests of comity played a central role in how the Teague plurality reached its

rule. Danforth, 552 U.S. at 279-80, 128 S. Ct. at 1040-41; Teague, 489 U.S. at 308-10,

109 S. Ct. at 1074-75. Comity is generally of no concern in state collateral review

proceedings. Danforth, 552 U.S. at 279-80, 128 S. Ct. at 1041. Except in limited

circumstances, this is so in Montana, and this is the case today. The Court’s decision

here will not disrupt the proceedings of any other sovereign, and for that reason comity

does not weigh against retroactive application of Miller. If anything, comity instead

weighs in favor of retroactive application. See Danforth, 552 U.S. at 279-80, 128 S. Ct.

at 1041 (“[C]onsiderations of comity militate in favor of allowing state courts to grant

habeas relief to a broader class of individuals than is required by Teague.”); Kills on Top

v. State, 279 Mont. 384, 420, 928 P.2d 182, 204 (1996) (“[C]onsiderations of federalism

and comity counsel respect for the ability of state courts to carry out their role as the

primary protectors of the rights of criminal defendants.”).

              c. Finality carries less weight here than it did in Teague

¶63    As in Teague, interests of finality do weigh against retroactive application of

Miller, but we need not give finality the same weight as the Teague plurality. The

Supreme Court has stated, “finality of state convictions is a state interest, not a federal

                                         36
one. It is a matter that States should be free to evaluate, and weigh the importance of,

when prisoners held in state custody are seeking a remedy for a violation of federal rights

by their lower courts.” Danforth, 552 U.S. at 279-80, 128 S. Ct. at 1041 (emphasis in

original).   I would afford finality less weight than the Teague plurality in today’s

decision.

¶64    While I agree with the Teague plurality that finality is important to conservation of

State resources, Teague, 489 U.S. at 310, 109 S. Ct. at 1075, the plurality only considered

the effect on State resources from overturning a conviction. Here, Beach does not contest

his guilt nor does he ask for a new trial. Rather, he merely asks to be resentenced. While

allowing such relief does impose a burden on the State, it does not impose nearly the

same burden that overturning a conviction and requiring a new trial would. For this

reason, the importance of finality does not weigh as heavily here as it did in Teague or as

it would in many state collateral review proceedings.

¶65    I also agree with the Teague plurality that “[w]ithout finality, the criminal law is

deprived of much of its deterrent effect.” Teague, 489 U.S. at 309, 109 S. Ct. at 1074.

However, finality is less important to preserving the deterrent effect in this case than it

was in Teague. The deterrent effect of criminal law is at the heart of the rule that we are

asked to apply. In Miller, Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), and

Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183 (2005), the U.S. Supreme Court

recognized that juvenile offenders are less deterred by criminal sentences than adult

offenders. It is partly for this reason that it prohibited certain sentences and required

                                         37
individualized consideration to support others.4 Miller, 132 S. Ct. at 2465; Graham,

560 U.S. at 72, 130 S. Ct. at 2028-29; Roper, 543 U.S. at 571-73, 125 S. Ct. at 1196-97.

Here, we cannot say that retroactive application will harm the deterrent effect of the law,

because we cannot say that the law was ever a deterrent to Beach or to similarly situated

individuals. Miller, 132 S. Ct. at 2465, 2469. At the very least, it served as less of a

deterrent than it would in most cases. Correspondingly, there is less harm from depriving

the law of its deterrent effect in this case, and finality carries less weight than it did in

Teague.

                 d. Nonretroactive application of Miller is unfair

¶66       The countervailing interest of fairness is of more importance here than it was in

Teague, given the purposes for our state writ, as discussed above. This heightened

interest of fairness weighs in favor of retroactivity here, because nontretroactive

application of Miller creates unfair results. This is clear upon examination of the rule we

are asked to apply and, based on that rule, the unfair distinctions the plurality draws in its

decision.

                         i. The rule of Miller

¶67       We are asked to apply the rule of Miller in this case. Miller is the latest decision

in a line of cases that includes Roper and Graham, and its rule can only be fully




4
    See Part I.2.d.i., below for a more complete discussion of these cases.
                                               38
understood in the context of those cases.5 Miller, 132 S. Ct. at 2463-69. These cases

stand for the rule that the Eighth Amendment prevents any criminal punishment that

lacks a legitimate penological justification, and that to determine whether there is such

justification, courts must take into account the characteristics attendant to juvenility that,

for example, make juvenile convicts less culpable and more reformable.

¶68    In Roper, the U.S. Supreme Court decided that the Eighth Amendment prohibits

states from imposing the death penalty on juvenile offenders. 543 U.S. at 568, 125 S. Ct.

at 1194. It explained that when compared to adults, juveniles are less mature, less

responsible, more vulnerable to negative influences and outside pressures, and more

likely to be rehabilitated. Roper, 543 U.S. at 569-70, 125 S. Ct. at 1195-96. These

differences, the court decided, render juvenile offenders less culpable for their crimes

than adults. Roper, 543 U.S. at 571, 125 S. Ct. at 1196. Based on this diminished

culpability and lack of maturity, the court reasoned that the penological purposes for the

death penalty – retribution and deterrence – apply with less force to juveniles than adults.

Ultimately, it decided that “neither retribution nor deterrence provides adequate

justification for imposing the death penalty on juvenile offenders,” and that the death

penalty is a disproportionate punishment when applied to juveniles. Roper, 543 U.S. at

572, 125 S. Ct. at 1196. Because the Eighth Amendment requires punishments to be

proportionate to the crime and culpability of an offender, the court decided that


5
  For the sake of convenience, we have and will continue to refer to the rule we are asked to
apply as the rule of Miller. The rule might more accurately, however, be referred to as the rule
expressed in Miller in light of Graham and Roper.
                                           39
sentencing juveniles to death violates the Eighth Amendment. Roper, 543 U.S. at 568,

125 S. Ct. at 1194.

¶69    Applying much the same analysis, the U.S. Supreme Court decided in Graham

that the Eighth Amendment prohibits imposing life sentences without the possibility of

parole on juveniles that have not committed homicide.           Graham, 560 U.S. at 74,

130 S. Ct. at 2029-30. It again analyzed the penological purposes for the sentence and

decided that, given the differences in maturity and culpability of a juvenile, the

penological purposes do not justify imposing such a sentence on juveniles. Graham,

560 U.S. at 67-74, 130 S. Ct. at 2026-30. In particular, it recognized that imposition of a

sentence of life without parole is an implicit decision that a juvenile is incorrigible and

will forever be a danger to society. Graham, 560 U.S. at 74, 130 S. Ct. at 2029-30. The

penalty, it said, “forswears altogether the rehabilitative ideal,” since it “deprives the

convict of the most basic liberties without giving hope of restoration.” Graham, 560 U.S.

at 69-70, 74, 130 S. Ct. at 2027, 2030. This kind of irrevocable judgment that denies an

offender the right to reenter society, it reasoned, is not appropriate in light of juveniles’

“capacity for change and limited moral culpability.” Graham, 560 U.S. at 74, 130 S. Ct.

at 2030.

¶70    The U.S. Supreme Court again applied this general analytical framework in Miller.

The decision in that case differed from Roper and Graham in that it did not categorically

prohibit a type of punishment for a class of individuals. Miller, 132 S. Ct. at 2471. The

court relied on those cases’ analyses, however, and decided that, based on the

                                         40
characteristics attendant to juvenility, a sentence of life imprisonment without parole

imposed on a juvenile homicide offender will usually not have legitimate penological

justifications. Miller, 132 S. Ct. at 2469. It decided, though, that it might be justified for

particular juveniles, based on their particular characteristics. Miller, 132 S. Ct. at 2469.

It, therefore, required sentencing courts, as a condition to the constitutionality of a life

without parole sentence imposed on a juvenile homicide offender, to consider the

penological justifications for the sentence in light of the offender’s juvenility and

attendant capacity for rehabilitation and diminished culpability. Miller, 132 S. Ct. at

2469.

¶71     This line of cases stands for the proposition that the Eighth Amendment prevents

any criminal punishment that lacks legitimate penological justification, and that to

determine whether there is such justification, courts must take into account the

characteristics attendant to juvenility that make juvenile offenders less culpable and more

likely to be reformed. For some sentences, such as the death penalty and life sentences

without parole for non-homicide offenders, there will never be legitimate penological

justifications for imposing the sentence on juveniles. Graham, 560 U.S. at 74, 130 S. Ct.

at 2030; Roper, 543 U.S. at 568, 125 S. Ct. at 1194. For other sentences, such as life

sentences without parole for homicide offenders, there may but usually will not be

legitimate penological justifications. To conform to the Eighth Amendment in such

circumstances, sentencing courts must consider the characteristics of the particular

juvenile offender. Miller, 132 S. Ct. at 2469.

                                          41
                     ii. The effect of the plurality’s decision not to apply Miller
                         retroactively

¶72    The plurality, by choosing not to apply the rule of Miller retroactively, implicitly

makes several fine and unfair distinctions between similarly situated offenders, and it

decides that constitutional protections can legitimately be extended or withheld upon

these distinctions alone.

¶73    If a sentence identical to Beach’s was imposed today on an offender identical to

Beach, the Court should have no trouble disposing of the threshold retroactivity issue and

considering whether the sentence is unconstitutional. See Opinion, ¶¶ 12, 48; Miller,

132 S. Ct. at 2469. Yet, according to the plurality, that same question of constitutionality

cannot be reached now merely because of the timing of Beach’s conviction and

sentencing. This aspect of the plurality’s decision draws two distinctions.

¶74    First, the plurality decides that there is a difference between the sentences that this

society can constitutionally impose and the sentences this society can constitutionally

enforce. If Beach’s sentence does not comply with Miller, then this society could not

impose the same sentence on him today. The plurality decides, though, that we can

continue to enforce the same sentence we now recognize as unconstitutional. This is

illogical, especially since a sentence to life without parole is a judgment by a court that an

offender will never be fit to reenter society. Miller, 132 S. Ct. at 2469; Graham, 560 U.S.

at 74, 130 S. Ct. at 2030. If we now recognize that a certain type of offender may be able

to reenter our society, we should not prevent the offender from doing so based merely on

the values of the past society that sentenced him or her.
                                          42
¶75    The second distinction this aspect of the plurality’s decision draws is between

offenders based purely upon when the offender appears in court. It decides that a mere

60 days – the time for filing an appeal to this Court, after which postconviction

proceedings are the only means of relief – will mean the difference between an offender

receiving constitutional protection or not. See M. R. App. P. 4(5)(b). As we have stated,

“selectively applying the Constitution to people who are similarly situated based merely

on the circumstances or timing of their appearance in court is the antithesis of the

judiciary’s responsibility.” State v. Whitehorn, 2002 MT 54, ¶ 41, 309 Mont. 63, 50 P.3d

121. The rule of Miller is unquestionably of constitutional importance, and the plurality

decides today to selectively apply it to otherwise similarly situated persons based solely

on the timing of the offender’s appearance in court.

¶76    Another aspect of the plurality’s decision draws a third unfair distinction,

distinguishing and treating disparately those sentences that are on their face penologically

unjustified from those that lack penological justification based upon more individualized

circumstances. While this is not a distinction the plurality explicitly makes, it is the

practical effect of its opinion. As discussed above, the U.S. Supreme Court decided in

Graham and Roper that death sentences and life without parole for non-homicide

offenders would never have legitimate penological justifications when imposed on

juveniles. Graham, 560 U.S. at 74, 130 S. Ct. at 2030; Roper, 543 U.S. at 568, 125 S. Ct.

at 1194. The Court would have no trouble applying this rule retroactively, as it is a

categorical prohibition. See Opinion, ¶¶ 38-39.

                                         43
¶77       Illogically, however, the plurality refuses to apply the virtually indistinguishable

rule of Miller. The real distinction between Miller and Roper or Graham is that the court

in Miller decided that certain sentences are usually penologically unjustified rather than

categorically prohibited. Miller, 132 S. Ct. at 2469. Because the sentence was not

always prohibited, the Supreme Court allowed it under Miller based on the individual

circumstances of the particular offender. Miller, 132 S. Ct. at 2469. Here, if Beach’s

sentence is equivalent to a sentence of life without parole and if the proper procedures

were not followed in imposing it,6 his sentence probably lacks penological justification

and is unconstitutional. We would have no way of definitively knowing whether it is

justified since an individualized determination was not made. By not applying Miller

retroactively, the plurality implicitly decides that we need not ensure that Beach’s

sentence was proportional and constitutional merely because, regardless of Beach’s own

circumstances and despite the severe risk that the sentence will be unconstitutional, the

type of sentence might occasionally be constitutionally applied to juveniles. See Opinion,

¶¶ 38-39; Miller, 132 S. Ct. at 2469.

¶78       Thus, the plurality’s decision distinguishes between sentences that we can decide

are unconstitutional based only on the sentence and bare demographic facts of the

offender and those that we can tell are unconstitutional only after individualized

consideration.       This is unfair.      A sentence that lacks penological justification is

disproportionate and violates the Eighth Amendment regardless of the analysis required


6
    These questions are resolved below, in Part II.
                                             44
to reach that conclusion.      To extend and withhold the protections of the Eighth

Amendment based on how closely we must examine the circumstances is an untenable

and unfair basis for Constitutional protections.

       e. Finality does not justify nonretroactivity in this case

¶79    The plurality’s decision results in an unfair distinction.       Given the level of

importance we give fairness and remediation in Montana habeas corpus proceedings,

only a strong countervailing interest could justify nonretroactive application of Miller.

As discussed above, the only countervailing interest in this case is finality, and it is of

slight importance here. It is not sufficient to justify nonretroactivity in spite of the

resulting unfair consequences.

¶80    Unlike the U.S. Supreme Court, this Court serves as “the primary protector[] of

the rights of criminal defendants.” Kills on Top, 279 Mont. at 420, 928 P.2d at 204

(quoting Cabana v. Bullock, 474 U.S. 376, 391, 106 S. Ct. 689, 699 (1986)).

Accordingly, when analyzing Eighth Amendment protections, we have stated that

“[c]onventional notions of finality of litigation have no place where life or liberty is at

stake and infringement of constitutional rights is alleged.” Kills on Top, 279 Mont. at

400, 928 P.2d at 192 (holding that res judicata does not bar reconsideration of the

constitutionality of a petitioner’s death sentence during postconviction relief

proceedings); see also State v. Southwick, 2007 MT 257, ¶ 16, 339 Mont. 281, 169 P.3d

698 (holding that res judicata does not prevent this Court from correcting a facially illegal

sentence). While this statement taken alone may be overbroad and while the relevant

                                          45
cases may be distinguishable from the present situation on their facts, the general

principle is meritorious; this State, its people, and this Court place more value on fairness

than finality, at least in the context of the Eighth Amendment. At the very least, where

the interests bear comparable importance in a particular matter, finality should give way

to fairness. As discussed above, this principle comports with the purposes for Montana’s

writ of habeas corpus.

¶81    The plurality’s decision to adhere to Teague today turns this preference on its

head. Here, fairness and the remedial purpose of our writ of habeas corpus are weighty

compared to the relatively less important interest of finality.        For this reason, and

considering how we have weighed these interests in the past, finality and nonretroactivity

should give way to fairness and retroactive application of Miller.

                                         II. Beach

¶82    The State argues that we should not grant Beach’s petition for habeas corpus, even

if Miller is applied retroactively.       It contends that Beach’s sentence was not

unconstitutional under the rule of Miller because Miller only applies to sentences of life

without parole that were mandatorily imposed by statute. The State concludes that

Beach’s sentence is not unconstitutional because it was neither mandatorily imposed nor

a sentence of life without parole. Additionally, it argues, the sentencing court did, in fact,

consider Beach’s age when sentencing him. For this reason, it again concludes that

Beach’s sentence was not unconstitutional under the rule of Miller. I disagree.




                                          46
¶83    While applied in that case to a mandatory sentence of life without parole, the court

in Miller was concerned with the “irrevocable judgment about [an offender’s] value and

place in society” that kind of sentence makes. Miller, 132 S. Ct. at 2465 (quoting

Graham, 560 U.S. at 74, 130 S. Ct. at 2030) (alteration in original). Life without parole,

it said, “forswears altogether the rehabilitative ideal,” deciding that the offender is

“incorrigible.” Miller, 132 S. Ct. at 2465 (quoting Graham, 560 U.S. at 73-74, 130 S. Ct.

at 2029-30). Because “incorrigibility is inconsistent with youth” and juveniles are thus

often more reformable than adults, the court concluded that the sentence would not

always be penologically justified and therefore could not be mandatorily imposed.

Miller, 132 S. Ct. at 2465, 2468-69.           It stated that the sentence might still be

constitutionally imposed on juveniles, but only after individualized consideration of that

juvenile’s characteristics. Miller, 132 S. Ct. at 2469.

¶84    Here, the court’s decision applies with the same force to Beach’s sentence.

Because he was sentenced on May 11, 1984, to 100 years’ imprisonment without the

possibility of parole, the earliest Beach could have been released was when he was 72

years old. This means that his sentence exceeded his life expectancy at the time of

sentencing, and that it is near or in excess of his life expectancy now. See IIA National

Center for Health Statistics, Vital Statistics of the United States § 6, 577 (U.S.

Department of Health and Human Services 1984) (reporting the life expectancy at birth

for a white male born in 1961 as 67.55 years, and reporting the expectation of life at

twenty years old for a white male born in 1961 as 50.25 years); National Center for

                                          47
Health Statistics, United States Life Tables, 2010, National Vital Statistics Reports, Nov.

6, 2014, at 3 (reporting that in 2010 the expectation of life for a 40 year old white male

was 38.5 years). Thus, the sentence provided Beach with no meaningful opportunity for

release and no “meaningful opportunity” to demonstrate the “maturity and rehabilitation”

sufficient to reenter society. Graham, 560 U.S. at 75, 130 S. Ct. at 2011. As in Miller,

the sentence imposed upon Beach forswears the rehabilitative ideal based upon the

implicit decision that Beach, even as a juvenile, was incorrigible. As in Miller, the

sentence deprived him of the most basic liberties without giving hope of restoration.

Miller, 132 S. Ct. at 2465; see Graham, 560 U.S. at 69-70, 130 S. Ct. at 2027. Thus, for

the purposes of Miller, Beach’s sentence is the functional equivalent of life without

parole. Cf. Lockyer v. Andrade, 538 U.S. 63, 79, 123 S. Ct. 1166, 1176-77 (2003)

(Souter, J., dissenting) (“because Andrade was 37 years old when sentenced, the

substantial 50-year period amounts to life without parole”); Graham, 560 U.S. at 70-71,

130 S. Ct. at 2028 (citing Harmelin v. Michigan, 501 U.S. 957, 996, 111 S. Ct. 2680,

2702 (1991) (“In some cases . . . there will be negligible difference between life without

parole and other sentences of imprisonment – for example, . . . a lengthy term sentence

without eligibility for parole, given to a 65-year-old man.”); Sumner v. Shuman, 483 U.S.

66, 83, 107 S. Ct. 2716, 2726 (1987) (“[T]here is no basis for distinguishing, for the

purposes of deterrence, between an inmate serving a life sentence without the possibility

of parole and a person serving several sentences of a number of years, the total of which

exceeds his normal life expectancy.”). According to Miller, then, Beach’s sentence could

                                        48
only be constitutionally imposed if the sentencing court considered whether the sentence

was penologically justified in light of Beach’s juvenility. Miller, 132 S. Ct. at 2469.

¶85    It is of little importance that Beach’s chronological age was on the PSI and

available to the sentencing judge. In order to constitutionally impose Beach’s sentence, it

would not have been enough for the sentencing judge to be aware of Beach’s

chronological age. Knowing that Beach was a juvenile, the court would still need to

consider Beach’s particular circumstances and characteristics and to determine whether,

in light of these characteristics, his culpability and inability to be reformed warrant the

severe sentence. Miller, 132 S. Ct. at 2469.

¶86    Here, there is no indication in the record or otherwise that the District Court made

these considerations.   It issued a sentence that effectively decided that Beach was

incorrigible without considering that as a juvenile he was more likely to be reformed. It

effectively sentenced him to life imprisonment without parole, and it did so without

considering that as a juvenile Beach may have been more susceptible to outside pressure,

less cognizant of consequences, and correspondingly less culpable and less likely to be

deterred. Miller, 132 S. Ct. at 2465-69. In doing so, it made “youth (and all that

accompanies it) irrelevant to imposition of that harshest prison sentence” and created “too

great a risk of disproportionate punishment.” Miller, 132 S. Ct. at 2469.

¶87    For these reasons, Beach’s sentence does not comply with the rule announced in

Miller. It is, therefore, unconstitutional. I would grant Beach’s petition for this reason

and I would order that he be resentenced.

                                         49
                                                /S/ MICHAEL E WHEAT

Justice James Jeremiah Shea, dissenting.

¶88   I respectfully dissent from the plurality’s opinion. I write separately to note that

we appear to be adopting the federal retroactivity framework in this case and to express

my reservations about doing so.        This decision marks the first time we have

acknowledged that we are not bound by the federal retroactivity framework, yet we

decide to follow it anyway. In my view, this raises two concerns.

¶89   First, the plurality adopts the federal retroactivity framework on the premise that

we have consistently applied this framework and, therefore, stare decisis compels us to

continue to do so. However, closer scrutiny of our retroactivity jurisprudence in this

regard reflects that it finds its origin in the mistaken premise that we were bound to

follow the federal framework when, in fact, we were not. I would decline to perpetuate

this mistake in this case. If we elect to continue on this path, however, I believe it is

incumbent upon us to acknowledge it is by choice and not federal mandate.

¶90   Second, the federal framework is contrary to controlling Montana law.           The

federal framework reflects the U.S. Supreme Court’s interpretation of the federal habeas

corpus statutes. Montana’s habeas statutes—which I contend should be applied in this

case—compel a different result.     Our own habeas corpus statutes indicate different

restrictions than those created by the federal framework. I believe the conflict between

the restrictions our statutes impose on retroactivity and the restrictions the federal

                                        50
framework imposes should be resolved in favor of our statutes, rather than the U.S.

Supreme Court’s interpretation of the federal statutes.

¶91    The plurality’s position appears to be that we should apply Teague in this case

because we have consistently applied Teague, even since the Supreme Court has made it

clear that we are not compelled to do so, and Beach has not demonstrated that our prior

jurisprudence is manifestly wrong. Moreover, Beach has only pointed out that we are

free to adopt a more expansive retroactivity rule, but has not developed or tested any

alternative rule. I address first the plurality’s concerns about the stare decisis effect of

our prior jurisprudence, and then the concern about the lack of an alternative rule. I

would submit that stare decisis does not compel us to follow Teague, that there is in fact

an alternative retroactivity rule contained in our own habeas statutes and pre-Egelhoff

opinions, and that we are bound to follow that rule rather than Teague.

¶92 I. Stare Decisis Is Inapplicable When Our Prior Precedent is Based on Manifest
Legal Error

¶93    In State v. Egelhoff, we mistakenly assumed we were bound by the federal

retroactivity framework. Specifically, we held: “[Teague’s] view of retroactivity for

cases on collateral review is binding upon this Court.” State v. Egelhoff, 272 Mont. 114,

126, 900 P.2d 260, 267 (1995) (emphasis added). In 2008, the U.S. Supreme Court

explained that we were wrong in Egelhoff, and that we are not bound to follow federal

retroactivity rules.   In Danforth v. Minnesota, the U.S. Supreme Court held that

“[s]ince Teague is based on statutory authority that extends only to federal courts

applying a federal statute, it cannot be read as imposing a binding obligation on state
                                         51
courts.” Danforth v. Minnesota, 552 U.S. 264, 278–79, 128 S. Ct. 1029, 1040 (2008).

As the plurality correctly notes, the U.S. Supreme Court explicitly addressed our

mistaken interpretation of Teague as being binding upon us. See Danforth, 552 U.S. at

281, 128 S. Ct. at 1042 (citing Egelhoff and noting Montana as one of only three state

courts to mistakenly assume we were bound by federal retroactivity rules).

¶94       This Court has only addressed Danforth once, in State v. Reichmand,

2010 MT 228, 358 Mont. 68, 243 P.3d 423.            The Reichmand opinion contains two

significant mistakes.     First, we held in Reichmand that we voluntarily adopted the

retroactivity rule in Teague, stating: “In State v. Egelhoff . . . we chose to adopt two

[retroactivity] rules from Griffith and Teague and applied them to our own retroactive

application of new state rules.” Reichmand, ¶ 14 (emphasis added). In fact, we did not

choose to adopt the Teague retroactivity rule in Egelhoff; we mistakenly concluded we

were bound to follow the Teague retroactivity rule. Egelhoff, 272 Mont. at 126, 900 P.2d

at 267.

¶95       Second, Reichmand mistakenly summarized the holding in Dansforth as stating

that states may adopt their own retroactivity rules for new state constitutional errors, but

not for new federal constitutional rules:

          The U.S. Supreme Court recently held that each state has the right to craft
          its own unique retroactivity jurisprudence, using federal requirements as a
          floor.    That is, the U.S. Supreme Court’s retroactivity analysis
          for federal constitutional errors     is binding      upon      the states
          when federal constitutional errors are involved. Danforth’s unequivocal
          grant of flexibility allows states to hand-pick retroactivity rules for
          application of new state rules.

                                            52
Reichmand, ¶ 13 (emphasis in original) (citation omitted). At first blush, this seems

correct—and indeed it would be correct if retroactivity arose from the new constitutional

rules themselves.     Danforth, however, held that retroactivity arises not from the

constitutional rule itself, but from the remedy—that is, the federal habeas corpus statutes.

Since the federal retroactivity framework derives from the federal habeas statutes—which

are applicable only to federal courts—it cannot be binding on state courts. Danforth’s

holding states this clearly: “Since Teague is based on statutory authority that extends only

to federal courts applying a federal statute, it cannot be read as imposing a binding

obligation on state courts.” Danforth, 552 U.S. at 278–79, 128 S. Ct. at 1040. Thus,

Reichmand’s assertion that the federal framework “is binding upon the states

when federal constitutional errors are involved” is incorrect.

¶96    Reichmand’s summary of Danforth mirrors the Danforth dissent’s argument, not

the majority opinion. The Danforth dissent argued that retroactivity arises from the

opinion granting the new constitutional right, not the federal habeas statutes. Thus, the

dissent reasoned that states are free to craft whatever retroactivity rules they wish for new

state constitutional rules, but are bound by the federal retroactivity framework for new

federal constitutional rules. Specifically, the dissent argued:

       State courts are the final arbiters of their own state law; this Court is the
       final arbiter of federal law. State courts are therefore bound by our rulings
       on whether our cases construing federal law are retroactive. . . . States [can]
       apply their own retroactivity rules only to new substantive rights under
       their own law, not to new federal rules announced by this Court.




                                          53
Danforth, 552 U.S. at 291–92, 295, 128 S. Ct. at 1047, 1049 (Roberts, C.J., dissenting)

(internal quotations omitted). It appears that in Reichmand we mistakenly summarized

the dissenting opinion in Danforth, rather than the actual holding.

¶97    To summarize, we mistakenly believed ourselves bound by the federal

retroactivity rules in Egelhoff. The U.S. Supreme Court pointed out our mistake, and

effectively overruled it, in Danforth.       Reichmand addressed Danforth, but misread

Egelhoff as a voluntary adoption of the federal rule, and then perpetuated the mistaken

belief that we must follow the federal framework when determining the retroactivity of

new federal constitutional rules. The only case in which we addressed retroactivity since

Reichmand, was State v. Cook, 2012 MT 34, 364 Mont. 161, 272 P.3d 50, which

followed Reichmand and the federal rules without substantive discussion. This is the

jurisprudence upon which the plurality relies in determining that Teague articulates the

appropriate retroactivity rule in Montana.

¶98    The plurality opinion acknowledges the mistake we made in Egelhoff, but not its

broader implication. As the plurality points out: “Under this Court’s policy of stare

decisis, we keep faith with precedent ‘unless it is demonstrably made to appear that’ our

precedent ‘manifestly is wrong.’” Opinion, ¶ 29 (quoting State ex rel. Perry v. District

Court, 145 Mont. 287, 310, 400 P.2d 648, 660 (1965) (internal quotations omitted)).

Since the U.S. Supreme Court has explicitly told us our precedent is wrong, and we have

never corrected that mistake, I contend that qualifies as “‘demonstrably made to appear

that’ our precedent ‘manifestly is wrong.’”

                                         54
¶99    This case marks the first time that a party has asked us to reconsider our

retroactivity rule in light of Danforth.      The parties in Reichmand did not mention

Danforth, much less ask us to depart from federal retroactivity jurisprudence.        See

generally Appellant’s Brief and Appellee’s Brief, State v. Reichmand (DA 09-0057). It is

clear that neither Egelhoff nor Reichmand voluntarily adopted Teague as Montana’s

retroactivity rule, since Egelhoff erroneously concluded the federal rules were binding

upon us, and Reichmand erroneously concluded that Egelhoff was a voluntary adoption of

the federal rules. The Court’s opinion here marks the first time we have acknowledged

that we are not bound by federal retroactivity rules and, therefore, marks our first

conscious, voluntary adoption of Teague. A plurality of this Court seems to favor this

course of action and, consequently, may adopt Teague as our rule. However, I am

concerned that the only basis for our adoption of the federal framework is “precedent”

that is merely ostensible at best and manifestly wrong at worst.

¶100 The plurality asserts that we voluntarily adopted the federal framework in

Reichmand, contending: “After acknowledging our ability to choose any standard,

[Reichmand] applied the federal retroactivity framework.” Opinion, ¶ 28. However,

Reichmand was grounded upon the misapprehension that we had already chosen to adopt

the federal framework in Egelhoff, as we unambiguously expressed: “In State v. Egelhoff,

we chose to adopt [the federal framework] and applied them to our own retroactive

application of new state rules. . . . Thus, Goetz will retroactively apply to Reichmand if

the requirements established in Egelhoff are met.” Reichmand, ¶¶ 14–15. It is beyond

                                         55
dispute that we did not choose to adopt the federal retroactively framework in Egelhoff;

we mistakenly believed ourselves bound to adopt it.1             Since Reichmand failed to

acknowledge that mistake—instead erroneously characterizing our adoption of the

federal framework in Egelhoff as a “choice”—I remain unconvinced that this Court has

ever voluntarily adopted the federal framework before today. If the plurality sees fit to

do so with this opinion, that is certainly its prerogative. I submit only that we are

creating precedent today rather than following it.

¶101 II. The Appropriate Retroactivity Rule Under Montana Law

¶102 As Justice Harlan noted of the U.S. Supreme Court’s retroactivity jurisprudence

prior to Teague: “Clearly, it is at least fair to regard this issue as not yet settled by this

Court. Consequently, I go on to inquire how it ought to be resolved.” Mackey v. United

States, 401 U.S. 667, 688, 91 S. Ct. 1160, 1165 (1971) (Harlan, J., concurring and

dissenting).

¶103 Since the federal retroactivity rules are based on the federal habeas corpus statutes,

a natural place to begin an analysis of the correct retroactivity rule for Montana would be

the Montana habeas corpus statutes. The Montana writ of habeas corpus is defined by

§ 46-22-101(1), MCA, and provides that “every person imprisoned or otherwise

restrained of liberty within this state may prosecute a writ of habeas corpus to inquire into




1
 It is also worth noting that Egelhoff did not involve any new state rules. The Egelhoff opinion
was based entirely on federal law as evidenced by the U.S. Supreme Court’s reversal of our
decision there. See Montana v. Egelhoff, 518 U.S. 37, 116 S. Ct. 2013 (1996). Thus, Egelhoff
could not have adopted the federal retroactivity rules and applied them to new state rules.
                                            56
the cause of imprisonment or restraint and, if illegal, to be delivered from the

imprisonment or restraint.” Section 46-22-101(1), MCA.

¶104 “In the construction of a statute, the office of the judge is simply to ascertain and

declare what is in terms or in substance contained therein, not to insert what has been

omitted or to omit what has been inserted.” Section 1-2-101, MCA. We should not,

then, insert restrictions into our own habeas corpus statute that the Legislature has chosen

to omit. Moreover, “When a statute is equally susceptible of two interpretations, one in

favor of natural right and the other against it, the former is to be adopted.” Section

1-2-104, MCA. To the extent we might interpret the habeas statute to include restrictions

against natural rights, we are instructed not to do so if the statute is equally susceptible of

an interpretation in favor of natural rights.

¶105 This being noted, the seemingly broad right granted by § 46-22-101(1), MCA, is

appropriately constrained by § 46-22-102, MCA, which places a restriction on what sorts

of claims may be raised in a habeas proceeding, and which may be subject to the

retroactive application of new constitutional rules on habeas review.            This statute

provides: “A person may not be released on a writ of habeas corpus due to any technical

defect in commitment not affecting the person’s substantial rights.” Section 46-22-102,

MCA. Unlike § 46-22-101(2), MCA, which we held unconstitutional in Lott v. State,

2006 MT 279, 334 Mont. 270, 150 P.3d 337, § 46-22-102, MCA, comports with both the




                                           57
protection of the writ enshrined in the Montana Constitution and the historical purposes

of habeas corpus.2

¶106 Thus, I believe that the only restriction with support in Montana law would be a

restriction that prevents claims that raise only technical defects that do not affect the

petitioner’s substantial rights. An appropriate definition of a “technical defect” can be

located in Coleman v. State, 194 Mont. 428, 633 P.2d 624 (1981), a habeas case that

predates Egelhoff’s mistaken determination that we were bound by Teague. In Coleman,

we held that a new constitutional rule was not retroactive because it was “not one aimed

at overcoming an aspect of the criminal trial that substantially impairs its truth-finding

function thereby raising questions as to the accuracy of guilty verdicts in past trials.”

Coleman, 194 Mont. at 503, 633 P.2d at 670. Based on that reasoning, an appropriate

definition of a “technical defect” would be one that does not raise significant questions as

to the accuracy of the verdict or the sentence.

¶107 A technical defect restriction on habeas review would mean that some categories

of new constitutional rules appropriately would never be retroactive. For example, new

search and seizure rules and the attendant exclusionary rule would not be retroactive

because their violation does not undermine confidence in the validity of a conviction or

sentence. As we noted in Coleman: “[T]he purpose of the exclusionary rule to deter

2
  “‘From the time of the Magna Charta, the Great Writ of Habeas Corpus has been liberally
employed as a means of guaranteeing that [justice] be accomplished and that a miscarriage of
justice will be remedied. For at its heart, the writ represents an acknowledgment of the principle
that the rights of freedom of the individual are worthy of protection.’” Lott, ¶ 20 (quoting State
v. Perry, 232 Mont. 455, 462–63, 758 P.2d 268, 273 (1988) (overruled on other grounds by State
v. Clark, 2005 MT 330, 330 Mont. 8, 125 P.3d 1099)) (citation omitted).
                                              58
police misconduct is not served at the post-appeal stage and application of the

exclusionary rule deflects the truth-finding process.”     Coleman, 194 Mont. at 503,

633 P.2d at 670. Since our own habeas statutes forbid only habeas claims based on

“technical defects,” and our prior habeas jurisprudence suggests an appropriate definition

of “technical defect,” I believe we compound our previous errors by adopting Teague

when we clearly are not bound to do so, and we have a more compelling alternative.

¶108 Since there is a statutory basis for a Montana-specific retroactivity rule, I submit

we are bound to follow the Montana-specific rule over one based on Teague. The U.S.

Supreme Court has stated that the federal retroactivity framework arises from

interpretation of the federal habeas corpus statutes, not the U.S. Constitution: “Teague is

based on statutory authority that extends only to federal courts applying a federal statute,

it cannot be read as imposing a binding obligation on state courts.” Danforth, 552 U.S. at

278–79, 128 S. Ct. at 1040 (emphasis added). Since the federal retroactivity framework

finds no basis in the U.S. Constitution, the Montana Constitution, nor the statutes of this

state, our adoption of it here can only be characterized as common law. Where the

common law and statute conflict, the statute shall take precedent. Section 1-1-108,

MCA, states:

       In this state there is no common law in any case where the law is declared
       by statute. But where not so declared, if the same is applicable and of a
       general nature and not in conflict with the statutes, the common law shall
       be the law and rule of decision.

At a minimum, this means that before we may adopt a common law rule, we must

ascertain that it is “not in conflict with the statutes.” Comparing the one restriction
                                         59
placed on habeas corpus by our statutes and Teague’s restrictions based on the distinction

between substantive and procedural rights evinces a conflict between Teague and

Montana statutes. Therefore, I contend we are compelled to follow our statutes over

Teague.

¶109 Similarly, I believe our prior resolution of a similar issue regarding restrictions on

which fundamental rights may be asserted in a collateral proceeding dictates that we

should follow Montana statutory law rather than the U.S. Supreme Court’s non-binding

opinions. In State v. Maine, we rejected the U.S. Supreme Court’s restriction on which

constitutional rights may be asserted in a collateral challenge to a prior conviction. State

v. Maine, 2011 MT 90, ¶¶ 31–32, 360 Mont. 182, 255 P.3d 64. Maine addressed whether

defendants could collaterally attack a prior conviction as unconstitutional when that

conviction was being used to enhance punishment for a later crime—in effect, the

question was whether you can hold a mini-habeas proceeding attacking a prior conviction

in the middle of sentencing for a later crime. At the time that we were deciding Maine,

the U.S. Supreme Court had decided Custis v. United States, 511 U.S. 485, 114 S. Ct.

1732 (1994), in which it held that such a collateral attack could occur only if the prior

conviction violated Gideon. The State asked us to adopt Custis out of considerations of

finality and judicial economy. See Maine, ¶¶ 16–17 (citing Custis). We rejected the U.S.

Supreme Court’s reliance on judicial economy and finality as justification for limiting

which constitutional rights may be asserted on collateral review because we saw no

principled basis for distinguishing between fundamental rights. We held: “[W]e disagree

                                         60
with the premise that some [fundamental] rights are sufficiently ‘unique’ to merit

consideration in collateral challenges, while others are not so deserving. . . . [T]he

existence of administrative burdens in evaluating collateral challenges does not justify

limiting the particular rights which may be asserted.” Maine, ¶¶ 31–32. The concurrence

further noted:

       While the strong interest in finality of judgments supports placing a limit on
       collateral attack of underlying convictions, there is no textual basis for a
       rule that allows such attack for the violation of one fundamental right but
       not for the violation of another, equally fundamental right. I therefore
       agree with the Court’s decision to reject that artificial distinction in favor of
       a rule of convenience.

Maine, ¶ 45 (Baker, J., concurring). That reasoning is instructive in the present case.

Similar to Custis, Teague allows some constitutional rights to be asserted on collateral

review, but not others. As the Maine concurrence made clear, where there is no basis in

Montana law for the particular distinctions the federal courts make between fundamental

rights, we should decline to follow the federal rule.         Teague’s distinction between

substantive and procedural rights finds no basis in Montana law.                   The same

considerations that led us to reject Custis should apply with equal force in considering

whether to adopt Teague.

¶110 I agree whole-heartedly with the Maine concurrence that the strong interest of

finality of judgments supports placing a limit on collateral attacks, and that any such limit

should arise from a textual basis. While there is no such textual basis for limitations on

which rights may be asserted in the type of proceeding discussed in Maine, our habeas

statutes and pre-Egelhoff opinions constitute an appropriate textual basis for limitations
                                          61
on collateral attack in habeas proceedings. For that reason, I believe the appropriate—

indeed, the mandatory—course would be to follow the statutes’ limitations rather than

Teague’s, which have no basis in Montana law.

¶111 I share the plurality’s concern about the parties neither proposing nor testing a

retroactivity rule alternative to Teague. I am not convinced, however, that Beach’s

failure to propose an alternative necessarily means we cannot inquire into the appropriate

retroactivity rule.

¶112 I would note that the parties in Teague did not ask the U.S. Supreme Court to

reexamine its retroactivity rules, nor did they develop or test a new proposed rule as the

plurality suggests must be done before this Court can adopt a new rule. Rather, the

Teague Court sua sponte adopted a new rule because it determined that its retroactivity

analysis needed to be clarified in light of the lack of a unifying theme in its prior

precedent. Teague, 489 U.S. at 300, 109 S. Ct. at 1069–70. If the lack of a unifying

theme is sufficient for the U.S. Supreme Court to sua sponte reexamine its rules and

adopt an entirely new approach, then I contend a line of precedent founded on a mistaken

legal assumption warrants similar reexamination of our own rules when a party has

expressly asked us to do so.

¶113 More importantly, the circumstances here do not implicate our usual concern

about adopting a new rule that was not argued by the parties. Whether we adopt Teague

or some other rule, we will be adopting a rule that was not argued by the parties. No

party has ever asked us to adopt Teague; therefore, its merits have never been tested in

                                        62
the manner the plurality suggests must happen before we adopt a new rule. The plurality

asserts that we adopted the federal framework in Reichmand. Opinion, ¶ 28. Assuming

that were correct, then we adopted the federal framework without any of the argument the

plurality asserts is a necessary antecedent to adoption of a new rule. Thus, we have either

already adopted a rule that no party has ever argued, or we must do so here. Moreover,

the rule I am proposing we adopt is merely a plain-language interpretation of our habeas

statutes. It is our job to state what the relevant law is when deciding a case, and the

habeas statutes’ plain language provides us ample guidance to state the appropriate

retroactivity rule for Montana.

¶114 This case provides us with the choice of either grounding our retroactivity rule on

Montana statutory law or on a precedent that both the U.S. Supreme Court, and the

plurality, recognize was incorrectly decided. I would choose the former. Retroactivity

should not rest on a distinction between substantive versus procedural as per Teague, but

rather should be an analysis as to whether the claim raises merely a technical defect that

does not affect the person’s substantial rights as per § 46-22-102, MCA. I submit that the

right to be sentenced in conformity with the Eighth Amendment of the U.S. Constitution

and Article II, § 22 of the Montana Constitution is a substantial right which merits

retroactive application. In this case, since Miller, Roper, and Graham have held that

sentencing a youth implicates these substantial rights, and the record is completely

devoid of any indication that the sentencing judge “[took] into account how children are

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

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lifetime in prison” when sentencing, Miller, 567 U.S. at ___, 132 S. Ct. at 2469, I would

remand the case for the District Court to consider Beach’s youth at the time he committed

the crime. Some juvenile offenders may commit crimes so heinous that they warrant

incarceration for life. Indeed, it may be that Beach merits the same sentence, even after

considering his youth at the time of the crime. But before that sentence is imposed, the

District Court should explicitly consider whether Beach was “‘the rare juvenile offender

whose crime reflects irreparable corruption,’” and not “‘the juvenile offender whose

crime reflects unfortunate yet transient immaturity.’” Miller, 567 U.S. at ___, 132 S. Ct.

at 2469 (quoting Roper, 543 U.S. at 573, 125 S. Ct. at 1197; Graham, 560 U.S. at 68,

130 S. Ct. at 2026).



                                                 /S/ JAMES JEREMIAH SHEA


Justice Patricia Cotter, dissenting.

¶115 I dissent from the Court’s denial of Beach’s petition. While I agree with some of

the arguments set forth in both Justice Wheat’s and Justice Shea’s dissents, I write

separately to assert that, even if one were to accept the Plurality Opinion’s analysis of

retroactivity, reversal and remand is still required because the Miller sentencing

consideration rule is a substantive rule which should be applied retroactively to Beach’s

claim on collateral review.

¶116 In Schriro v. Summerlin, the United States Supreme Court held that substantive

rules apply retroactively, and it included as a substantive rule one which “alters the range
                                         64
of conduct or the class of persons that the law punishes” and “place[s] particular conduct

or persons covered by the statute beyond the State’s power to punish.” It observed that

within this category are rules that prohibit punishment for a class of defendants because

of their status or offense. Schriro, 542 U.S. at 352-53, 124 S. Ct. at 2522-23. Youth is

clearly a “status.” As observed in Wilson, 233 Cal. App. 4th 544 (2015) (review granted

April 15, 2015, S224745, briefing deferred), the Schriro court concluded that “[s]uch

rules apply retroactively because they carry a significant risk that a defendant . . . faces a

punishment that the law cannot impose upon him.” In re Wilson, 233 Cal. App. 4th at

559-60 (quoting Schriro, 542 U.S. at 352, 124 S. Ct. at 2523) (internal quotation marks

omitted). Here, that punishment is Beach’s effective sentence of life without parole.

¶117 As the Plurality Opinion correctly observes, Miller requires a sentencing court to

“‘follow a certain process’ before imposing a life without parole sentence on a juvenile.”

Opinion, ¶ 32.     The Plurality Opinion seizes upon the reference to “process” and

concludes citing Schriro that the sentencing consideration rule under Miller “regulates

only the manner of determining a sentence,” (Opinion, ¶ 39), and is therefore procedural.

I disagree. I would conclude, as did the Court of Appeals of California on April 16,

2015, that Miller announces a new substantive rule, which should be retroactively applied

to cases on collateral review.

¶118 In Willover, the court addressed the 1999 conviction and sentence of a 17-year-old

defendant who was convicted of two counts of first-degree murder, together with other

crimes. In re Willover, 2015 Cal. App. LEXIS 322 (Cal. App. 6th Dist. Apr. 16, 2015).

                                          65
Willover was sentenced to two consecutive life without parole terms (LWOP) for the

first-degree murders, with additional imprisonment terms imposed for the other crimes.

The court noted that at the time of the 1999 sentencing hearing, a California statute had

been construed as creating a presumption in favor of life without parole as the appropriate

penalty for juveniles convicted of “special circumstance murder.” In re Willover, 2015

Cal. App. LEXIS 322 at *9. However, the sentencing scheme was not mandatory.

¶119 Apropos of the foregoing reference by the Plurality Opinion to “process,” and

citing cases from other courts around the country, the Willover court concluded that

Miller

         effectively “alter[ed] the range of conduct or the class of persons that the
         law punishes” [Schriro, 542 U.S. at 353, 124 S. Ct. at 2523], in that it
         barred LWOP sentences for juvenile homicide offenders unless the
         sentencing court determines, after a consideration of a number of
         case-specific substantive factors, that the defendant is “‘the rare juvenile
         offender whose crime reflects irreparable corruption.’ [citations].” [Miller,
         132 S. Ct. at 2469]. Miller did not simply set forth a new rule regulating
         “the manner of determining the defendant’s culpability,” but a rule that sets
         forth the specific considerations to be made during a sentencing decision.
         [Schriro, 542 U.S. at 353, 124 S. Ct. at 2523].

In re Willover, 2015 Cal. App. LEXIS 322 at *20-21 (emphasis in original). Thus, the

court concluded that Miller announced a substantive rule.

¶120 The Willover court also found it significant that when the Supreme Court granted

relief in Miller, it granted relief in the companion case of Jackson v. Hobbs, directing that

the defendant in that case also be given a new sentencing hearing. In re Willover, 2015

Cal. App. LEXIS 322 at *21. Notably, Jackson arose on collateral review, and yet the


                                          66
Supreme Court saw no reason to direct a different outcome in that case, suggesting that

the Miller court may have considered its decision substantive.

¶121 As the Plurality Opinion observes at ¶ 35, there is a split of authority on the

question of whether Miller announces a procedural or a substantive rule. In fact, the

Supreme Court very recently granted a petition for writ of certiorari in Montgomery v.

Louisiana, No. 14-280, on the question of whether Miller should be applied retroactively.

See State v. Montgomery, 141 So. 3d 264, 2014 La. LEXIS 1538 (2014), cert. granted,

sub nom. Montgomery v. Louisiana, 2015 U.S. LEXIS 1942 (U.S. Mar. 23, 2015). In

concluding that the rule in Miller is procedural rather than substantive, the Plurality

Opinion finds company in the decisions of other courts. However, so too does this

Dissent. The question is clearly unsettled.

¶122 Among the factors cited in Miller as appropriate for consideration at sentencing

are “chronological age and its hallmark features-among them, immaturity, impetuosity,

and failure to appreciate risks and consequences.”      Miller, 132 S. Ct. at 2468.    In

Graham, 560 U.S. at 79, 130 S. Ct. at 2032, the Supreme Court stated: “Life in prison

without the possibility of parole gives no chance for fulfillment outside prison walls, no

chance for reconciliation with society, no hope. Maturity can lead to that considered

reflection which is the foundation for remorse, renewal, and rehabilitation.”         The

Supreme Court recognized that life without parole “forswears altogether the rehabilitative

ideal” and “improperly denies the juvenile offender a chance to demonstrate growth and

maturity.” Graham, 560 U.S. at 73-74, 130 S. Ct. at 2029-30.

                                         67
¶123 I would conclude that the rule in Miller is substantive and that Beach should be

resentenced. I would direct the court on remand to take into account Beach’s youth at the

time his crime was committed, as well as Beach’s demonstration of growth and maturity

over the past thirty years. As Willover instructs, I would direct the court to determine

upon consideration of these factors whether Beach is or is not “the rare juvenile offender

whose crime reflects irreparable corruption.” In re Willover, 2015 Cal. App. LEXIS 322

at *20 (quoting Miller, 132 S. Ct. at 2469). I therefore dissent from the Court’s denial of

Beach’s petition.


                                                        /S/ PATRICIA COTTER




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