                              In the

    United States Court of Appeals
                For the Seventh Circuit
                    ____________________
No. 14-1944
BENARD MCKINLEY,
                                               Petitioner-Appellant,

                                v.

KIM BUTLER,
                                              Respondent-Appellee.
                    ____________________

        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
            No. 11 C 4190 — John J. Tharp, Jr., Judge.
                    ____________________

   ARGUED OCTOBER 30, 2015 — DECIDED JANUARY 4, 2016
                    ____________________

   Before POSNER, RIPPLE, and HAMILTON, Circuit Judges.
   POSNER, Circuit Judge. In 2001, a 16-year-old named
Benard McKinley shot and killed a 23-year-old man, Abdo
Serna-Ibarra, as he tried to enter a Chicago park. Both were
with friends, and one of McKinley’s friends, a 15-year-old
named Edward Chavera, may have handed McKinley the
gun. Whether or not he did, he told McKinley to shoot
Serna-Ibarra. McKinley obeyed, shooting him in the back,
and when Serna-Ibarra turned around with his hands raised
2                                                  No. 14-1944


McKinley shot him again, killing him. Tried in an Illinois
state court and convicted by a jury of first-degree murder,
McKinley was sentenced to consecutive 50-year prison
terms, one for the murder and one for the use of a firearm to
commit it. See 730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(d)(iii) (2004).
With no good-time credit or other chance of early release
permitted to persons sentenced for first-degree murder in
Illinois, McKinley will be imprisoned for the full 100 years
unless, of course, he dies before the age of 116. See 730 ILCS
5/3-3-2, 5/3-6-3(a)(2)(i). His accomplice, Chavera, pleaded
guilty to second-degree murder and was sentenced to 17.5
years in prison.
     After unsuccessfully seeking post-conviction relief in the
Illinois court system, McKinley petitioned the federal district
court in Chicago for a writ of habeas corpus, on the ground
(so far as relates to the present appeal) that his sentence vio-
lated the federal Constitution. See 28 U.S.C. § 2254(a). The
district court denied McKinley’s petition, precipitating the
appeal now before us.
    To be allowed to press his claim in this court, however,
he had to have pressed it in the state judicial system first,
§ 2254(b)(1)(A), and have made clear that it was indeed a
federal constitutional claim that he was pressing. Baldwin v.
Reese, 541 U.S. 27, 32 (2004); Duncan v. Henry, 513 U.S. 364,
365–66 (1995). This requirement of exhaustion is designed on
the one hand to marshal the assistance of the state courts in
enforcing federal constitutional law and on the other hand to
diminish the burden on the federal courts of post-conviction
proceedings by state prisoners—a potentially crushing bur-
den given the size of the state prison population and the un-
derstandable tendency of prisoners, especially those serving
No. 14-1944                                                    3


long sentences, to pepper the courts with post-conviction pe-
titions.
     Beginning in 2008 McKinley filed in Illinois courts a
post-conviction petition, a petition for relief from judgment,
and a motion for leave to file a successive post-conviction
petition. Most of the claims in these filings had no possible
merit, were properly rejected, and require no discussion. He
did however make one possibly meritorious claim, challeng-
ing the sentence as a “cruel and unusual punishment under
th[e] constitution of state and federal laws.” He had made a
similar claim, without success, on direct appeal, describing
the length of his sentence as excessive given his youth when
he committed the murder, and thus as a violation of the Illi-
nois Constitution’s Proportionate Penalties Clause (as Article
1, § 11 of the Illinois Constitution is known), which provides,
so far as might relate to this case, that “all penalties shall be
determined both according to the seriousness of the offense
and with the objective of restoring the offender to useful cit-
izenship.”
    All the petitions were rejected—the 100-year sentence
stood—and so McKinley turned to the federal district court,
invoking the federal habeas corpus statute. But he had failed
to argue to the state courts on direct appeal that his prison
sentence violated the cruel and unusual punishments clause
of the Eighth Amendment, which the Supreme Court has
made applicable to the states by interpretation of the due
process clause of the Fourteenth Amendment. By failing to
alert the state court to the possible presence of a federal
claim, McKinley has forfeited the right to seek federal habeas
corpus on the ground that his sentence violated the Eighth
4                                                  No. 14-1944


Amendment, unless he can show that his failure to raise the
claim in state court had been excusable.
    In arguing that it had been, he places great weight on
Miller v. Alabama, 132 S. Ct. 2455 (2012), which held “that the
Eighth Amendment forbids a sentencing scheme that man-
dates life in prison without possibility of parole for juvenile
offenders.” Id. at 2469. But the Illinois sentencing
“scheme”—the statutory provisions cited earlier governing
sentences for murder and for deadly use of a firearm—did
not require that McKinley be sentenced to life in prison. He
could have been sentenced to as little as 20 years for the
murder plus 25 years for the deadly use of a firearm, for a
total of 45 years. See 730 ILCS 5/5-8-4(a) (2004) (requiring the
sentencing judge to impose consecutive sentences if “one of
the offenses for which defendant was convicted was first de-
gree murder”). There is more to Miller, however. The Su-
preme Court said that in deciding on a sentence for a minor
(remember that McKinley was only 16 when he committed
the murder) “we require [the sentencing judge] to take into
account how children are different, and how those differ-
ences counsel against irrevocably sentencing them to a life-
time in prison.” Miller v. Alabama, supra, 132 S. Ct. at 2469
(footnote omitted).
    The sentencing judge in this case didn’t do that. He said
nothing to indicate that he considered the defendant’s youth
to have the slightest relevance to deciding how long to make
the sentence. The only considerations he deemed relevant
were that “the defendant had some type of juvenile adjudi-
cation for possession of [a] controlled substance, was in a
[juvenile probation] program [that included counseling], and
while in that program he committed this offense. I find that
No. 14-1944                                                   5


to be an aggravating factor,” and in fact “a serious aggravat-
ing factor.” He further emphasized that there had been no
provocation for the murder. He rejected the suggestion that
“the defendant’s criminal conduct was a result of circum-
stances unlikely to recur,” explaining that “historically … his
conduct indicated that the period of probation that he was
given and the monitoring that he was given through Juve-
nile Court, really like your first chance scenario, was insuffi-
cient to deter the defendant from committing another of-
fense.” In short, “multiple factors in aggravation apply” and
the 100-year sentence was “necessary to deter others from
committing the same crime.”
    The judge thus did not consider the Supreme Court’s
“children are different” statement in Miller, or similar state-
ments in earlier Supreme Court cases, notably Roper v. Sim-
mons, 543 U.S. 551 (2005), where the Court had marshaled
psychological evidence in support of its conclusion that to
impose the death penalty on a minor was a per se violation
of the Eighth Amendment. Id. at 569–75. (Neither of the cases
we just cited had been decided when McKinley was sen-
tenced in 2004.) The present case of course does not involve
the death penalty. And as we noted earlier, neither is it a
case involving a mandatory sentence of life in prison. The
judge exercised his discretion in sentencing McKinley to a
term of years, rather than to life.
    But it is such a long term of years (especially given the
unavailability of early release) as to be—unless there is a
radical increase, at present unforeseeable, in longevity with-
in the next 100 years—a de facto life sentence, and so the logic
of Miller applies. The respondent (the warden of the prison
in which the petitioner is held) wants to limit Miller to cases
6                                                  No. 14-1944


in which the legislature decrees imprisonment for life, thus
stripping the sentencing judge of any discretion to impose a
shorter sentence in light of the particulars of the defendant
and his crime. But the “children are different” passage that
we quoted earlier from Miller v. Alabama cannot logically be
limited to de jure life sentences, as distinct from sentences
denominated in number of years yet highly likely to result in
imprisonment for life. Cf. Moore v. Biter, 725 F.3d 1184, 1191–
92 (9th Cir. 2013). The relevance to sentencing of “children
are different” also cannot in logic depend on whether the
legislature has made the life sentence discretionary or man-
datory; even discretionary life sentences must be guided by
consideration of age-relevant factors. See, e.g., People v.
Gutierrez, 324 P.3d 245, 267–69 (Cal. 2014); Ex Parte Hender-
son, 144 So. 3d 1262, 1280, 1283–84 (Ala. 2013). Although our
court said in Croft v. Williams, 773 F.3d 170, 171 (7th Cir.
2014), that Miller is inapplicable even to a defendant sen-
tenced to life without parole provided that the legislature
does not require such a sentence but leaves the matter to the
sentencing judge, the court did not discuss the “children are
different” passage in Miller. That passage implies that the
sentencing court must always consider the age of the defend-
ant in deciding what sentence (within the statutory limits) to
impose on a juvenile.
    The judge in this case failed to do that. He said nothing to
indicate that he thought the defendant’s youth at all relevant
to the sentence. He failed to mention that the defendant may
not have been armed at the beginning of the mêlée that re-
sulted in the murder—the gun used in the murder may have
been handed to him by a confederate, and whether it was or
not, it is certain that the confederate ordered him to shoot
Serna-Ibarra. The judge should have considered whether, in
No. 14-1944                                                  7


a situation of excitement, McKinley had the maturity to con-
sider whether to obey his confederate’s order, or was pre-
vented by the circumstances from making a rational decision
about whether to obey.
    But there are obstacles to our reversing the denial of ha-
beas corpus on the ground that the judge failed to consider
the defendant’s age. One is the failure of McKinley’s lawyer
in the state-court proceedings to assert a federal constitu-
tional claim. But McKinley might be able to overcome this
obstacle because his “constitutional claim is so novel that its
legal basis [wa]s not reasonably available to counsel” at the
time of the state court proceedings, for a subsequent Su-
preme Court decision (in this case, Miller) overturned “a
longstanding and widespread practice to which this Court
has not spoken, but which a near-unanimous body of lower
court authority has expressly approved.” Reed v. Ross, 468
U.S. 1, 16–17 (1984) (quotations and citations omitted).
    But that excuse is available only if the new constitutional
principle “is held to have retroactive application,” id. at 17,
and that is a further obstacle to McKinley. The Supreme
Court has been reluctant to allow prison inmates to base col-
lateral attacks on their convictions or sentences on claims to
retroactive application of federal constitutional principles.
There are more than a million prison inmates in the United
States, and every time the Supreme Court, or even a lower
court, renders a decision that makes criminal law, whether
substantive or procedural, more favorable to defendants,
prisoners seek retroactive application of the decision. The
federal courts could be overwhelmed were this permitted
without limit. This concern has led the Supreme Court to
confine retroactive application of procedural doctrines of
8                                                  No. 14-1944


criminal law to doctrines that can be said to be “watersheds”
in the law, see, e.g., Whorton v. Bockting, 549 U.S. 406, 416–20
(2007)—and only once has the Court found a watershed: the
rule of Gideon v. Wainwright, 372 U.S. 335 (1963), that the de-
fendant in a criminal case has a constitutional right to repre-
sentation by counsel.
   Recognizing the high bar that a procedural rule must
surmount to be classified as “watershed,” this court has con-
cluded that neither United States v. Booker, 543 U.S. 220
(2005), which made the Sentencing Guidelines discretionary,
nor Alleyne v. United States, 133 S. Ct. 2151 (2013), which re-
quired that facts affecting mandatory minimum sentences be
proved to a jury beyond a reasonable doubt, is retroactive,
McReynolds v. United States, 397 F.3d 479 (7th Cir. 2005);
Crayton v. United States, 799 F.3d 623 (7th Cir. 2015), though
both were very important decisions. But even in the unlikely
event that Miller’s rule requiring judges to consider how
“children are different” were to be deemed a “watershed”
rule under federal law, McKinley’s claim would fail in our
court because it is premature.
    To explain: the respondent (the warden) acknowledges
that McKinley may have a remedy in state court because, as
the warden tells us, “Illinois law allows a prisoner to file a
successive postconviction petition if he shows cause for, and
prejudice from, failing to raise the claim in an initial post-
conviction petition.” See 725 ILCS 5/122-1(f) (2015). In People
v. Davis, 6 N.E.3d 709, 722 (Ill. 2014), the Illinois Supreme
Court found that the defendant had satisfied this cause and
prejudice test for his Miller claim because Miller had been
unavailable to him either on direct appeal or in his initial
post-conviction proceedings, and the court held that under
No. 14-1944                                                   9


Illinois law it could be enforced retroactively on collateral
review. The Davis decision thus gives the petitioner in the
present case an available avenue for relief in state court for
his claim.
     Particularly important is the statement in Davis that Mil-
ler “applies retroactively to cases on collateral review” under
Illinois law. Id. at 720. Davis holds that Miller is retroactive
because it changed substantive rather than procedural law,
and so is not controlled by the requirement that a procedural
rule must be a “watershed” rule if it is to apply retroactively.
Id. at 722. Indeed, a state is not required to have such a re-
quirement at all. And although the Illinois Supreme Court
has adopted the “standards for determining when a new
constitutional rule would apply to federal habeas corpus ac-
tions pending in federal courts” to “collateral proceedings
pursuant to the [Illinois] Post-Conviction Hearing Act” as a
matter of state law, id. at 720, a state court is not required,
when applying state law, to interpret those standards the
same way as federal courts do.
    McKinley like Davis had no opportunity to invoke Miller
either in his direct appeal or in any of his state post-
conviction proceedings. He had been convicted and sen-
tenced in 2004 and his conviction and sentence had been af-
firmed in 2007. He filed his post-conviction petition in 2008,
and that proceeding ended in 2011 when the Illinois Su-
preme Court denied review. Miller was not decided until
2012. So the Illinois state courts have had no opportunity to
consider the bearing of Miller on the appropriateness of re-
considering McKinley’s sentence. Miller speaks to the pro-
priety of a life sentence for juveniles, and an Illinois court
10                                                No. 14-1944


might well believe as do we that the sentencing judge in this
case utterly failed to consider that “children are different.”
     The state court might begin by reflecting on the consid-
erations that should inform a decision on the length of a
prison sentence. One is the need to prevent the defendant
from committing crimes upon release; the likelier that he is
to recidivate, the longer the appropriate sentence. Another
pertinent consideration is the need to deter other potential
criminals, who if rational will consider the length of the sen-
tences being meted out to persons who commit crimes simi-
lar to the crimes these potential criminals commit or intend
to commit; the longer the sentence, the greater the cost that
the would-be criminals face. Last is the perceived need for
long sentences for the most serious crimes, in order to as-
suage the indignation that such crimes arouse in the general
public. But a defendant’s youth and immaturity may influ-
ence consideration of each of these factors, because children
have diminished culpability, greater prospects for reform,
and less ability to assess consequences than adults. See Miller
v. Alabama, supra, 132 S. Ct. at 2464–65.
     Murder is of course one of the most serious crimes, but
murders vary in their gravity and in the information they
reveal concerning the likelihood of recidivism by the mur-
derer. In the case of a 16-year-old kid handed a gun by an-
other kid and told to shoot a designated person with it, it is
difficult to predict the likelihood of recidivism upon his re-
lease from prison or to assess the deterrent effect of impos-
ing a long sentence on him, without additional information.
A competent judicial analysis would require expert psycho-
logical analysis of the murderer and also of his milieu. Does
he inhabit a community, a culture, in which murder is rou-
No. 14-1944                                                 11


tine? Are other potential murderers likely to be warned off
murder upon learning that a 16-year-old kid has been sen-
tenced to life in prison, or are they more likely to think it a
fluke? Is the length of a sentence a major factor in deter-
rence? Given that criminals tend to have high discount rates,
meaning that they weight future events very lightly, does it
matter greatly, so far as deterrence is concerned, whether a
murderer such as McKinley is sentenced to 20 years in pris-
on or 100 years? And here is where Miller plays a role. It
does not forbid, but it expresses great skepticism concerning,
life sentences for juvenile murderers. Its categorical ban is
limited to life sentences made mandatory by legislatures, but
its concern that courts should consider in sentencing that
“children are different” extends to discretionary life sentenc-
es and de facto life sentences, as in this case. A straw in the
wind is that the Supreme Court vacated, for further consid-
eration in light of Miller, three decisions upholding as an ex-
ercise of sentencing discretion juveniles’ sentences to life in
prison with no possibility of parole: Blackwell v. California,
133 S. Ct. 837 (2013); Mauricio v. California, 133 S. Ct. 524
(2013); Guillen v. California, 133 S. Ct. 69 (2012).
     Neither Miller—which obviously had no bearing on the
original sentencing of McKinley since it hadn’t been decided
yet—nor any of the questions raised in this opinion was ad-
dressed by the sentencing judge, who treated McKinley as if
he were not 16 but 26 and as such obviously deserving of ef-
fectively a life sentence.
    We therefore vacate the judgment of the district court
and remand the case to that court with instructions to stay
further consideration of McKinley’s habeas corpus claim
pending his filing of a successive post-conviction petition in
12                                             No. 14-1944


state court seeking resentencing on the basis of Miller and
the concerns expressed in this opinion regarding the sen-
tencing proceeding that resulted in a 100-year prison sen-
tence for a 16-year-old.
                                               SO ORDERED
No. 14-1944                                                   13




RIPPLE, Circuit Judge, dissenting.
    I agree with my colleagues that Mr. McKinley failed to
raise his Eighth Amendment claim in state court. See Slip op.
at 7. I disagree, however, that Miller v. Davis, 132 S. Ct. 2455
(2012), provides a basis for relief for Mr. McKinley, that Mil-
ler excuses his default, and that Mr. McKinley should have
the opportunity to return to the Illinois courts to pursue a
third post-conviction petition for relief.
    In Miller, the Supreme Court held that “mandatory life
without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual punishments.’” 132 S. Ct. at 2460. Alt-
hough we have not answered the question whether Miller
should be applied retroactively to cases on collateral review,
we held in Croft v. Williams, 773 F.3d 170, 171 (7th Cir. 2014),
that, in cases like Mr. McKinley’s where the defendant was
sentenced to a discretionary life sentence, “Miller is inapplica-
ble.”
    The majority acknowledges Croft, but distinguishes it.
According to the majority, Miller did something more than
establish a rule that a juvenile cannot be sentenced to a man-
datory life sentence; Miller also established that “children are
different,” and, in sentencing them, state courts must
acknowledge and give credence to this principle. Slip op. at
4–5. Our decision in Croft, they continue, “did not discuss
the ‘children are different’ passage in Miller,” and, therefore,
does not bind this panel. Slip op. at 6.
14                                                   No. 14-1944


    Even if I could accept this characterization of Croft, the
“‘children are different’ passage in Miller” does not provide
a basis for returning Mr. McKinley to the state courts. As the
majority acknowledges, the “children are different” state-
ment in Miller has parallels “in earlier Supreme Court cases,
notably in Roper v. Simmons, 543 U.S. 551 (2005),” 1 Slip. op. at
5, and also in Graham v. Florida, 130 S. Ct. 2011 (2010). 2 “Chil-
dren are different,” therefore, is not a new rule—either sub-
stantive or procedural—that justifies Mr. McKinley’s failure
to raise his Eighth Amendment claim in the state courts.
    Moreover, Roper was handed down during the pendency
of Mr. McKinley’s direct appeal, and Graham was handed
down during the pendency of Mr. McKinley’s first petition
for post-conviction relief (and prior to filing his motion for

     See Roper v. Simmons, 543 U.S. 551, 569–574 (2005) (dis-
     1

cussing “[t]hree general differences between juveniles under
18 and adults” which “render suspect any conclusion that a
juvenile falls among the worst offenders” and concluding
that ‘[t]he differences between juvenile and adult offenders
are too marked and well understood to risk allowing a
youthful person to receive the death penalty despite insuffi-
cient culpability”).
     2See Graham v. Florida, 130 S. Ct. 2011, 2026, 2030 (2010)
(explaining that “Roper established that because juveniles
have lessened culpability they are less deserving of the most
severe punishments” and concluding that “the limited cul-
pability of juvenile nonhomicide offenders[] and the severity
of life without parole sentences all lead to the conclusion
that the sentencing practice under consideration is cruel and
unusual”).
No. 14-1944                                                  15

leave to file a successive state post-conviction petition). Con-
sequently, the principle that forms the basis of the majority’s
decision to return Mr. McKinley to the state courts was
available to him during his first, second and third attempts
at state-court relief. Mr. McKinley simply failed to invoke
that principle.
    The majority believes, however, that returning
Mr. McKinley to the courts of Illinois is appropriate because
those courts “have had no opportunity to consider the bear-
ing of Miller on the appropriateness of reconsidering McKin-
ley’s sentence.” Slip op. at 9. My colleagues posit that the Il-
linois courts may be willing to entertain Mr. McKinley’s
Eighth Amendment claim because, in People v. Davis, 6
N.E.3d 709, 722 (Ill. 2014), “the Illinois Supreme Court found
that Davis had satisfied this cause and prejudice test for his
Miller claim because Miller was unavailable to [Davis] either
on direct appeal or in his initial post-conviction proceedings,
and the court held that under Illinois law it could be en-
forced retroactively on collateral review.” Slip op. at 8–9. The
majority finds one remark in Davis “[p]articularly im-
portant”: “that Miller is retroactive because it changed sub-
stantive rather than procedural law.” Id. at 9.
    As an initial matter, the Illinois courts have been de-
prived of this opportunity to consider the “children are dif-
ferent” argument only because Mr. McKinley failed to pre-
sent it, not because the argument was unavailable to him.
Furthermore, Davis provides little basis for concluding that
the Illinois courts will look charitably on Mr. McKinley’s late
arguments. Davis concerned the sentencing of a juvenile de-
fender to a mandatory sentence of natural life imprisonment.
Davis, 6 N.E.3d at 714 (“Because defendant was found guilty
16                                                     No. 14-1944


of murdering more than one victim, section 5-8-
1(a)(1)(c)…required the trial court to sentence defendant to a
term of natural life imprisonment, for which parole is not
available….” (emphasis added)). Concluding that the de-
fendant fell within the rule of Miller, the Supreme Court of
Illinois went on to conclude that Miller should apply retroac-
tively because it “places a particular class of persons covered
by the statute—juveniles—constitutionally beyond the
State’s power to punish with a particular category of pun-
ishment—mandatory sentences of natural life without pa-
role.” Id. at 722. Because this new rule was substantive, the
court continued, it “constitutes ‘cause’ because it was not
available earlier to counsel and constitutes prejudice because
it retroactively applies to defendant’s sentencing hearing.”
Id. (citation omitted).
    The state supreme court, however, also noted the limita-
tion of this substantive rule: “We observe that Miller does not
invalidate the penalty of natural life without parole for mul-
tiple murderers, only its mandatory imposition on juveniles.
A minor may still be sentenced to natural life imprisonment with-
out parole so long as the sentence is at the trial court’s discretion
rather than mandatory.” Id. at 723 (second emphasis added)
(citation omitted). Therefore, even if there were no proce-
dural impediments to returning Mr. McKinley to state court,
nothing in Davis suggests that, once there, Mr. McKinley
could obtain the relief he seeks.
    Although not directly stating so, today the majority both
recognizes a new constitutional right and holds that it is
cognizable on habeas review: the right of a juvenile not only
to have the trial court explicitly consider age as a mitigating
factor in sentencing, but also to have the sentencing court
No. 14-1944                                                17

consider specific information in that sentencing process. The
majority also supplies the contours for this right. “A compe-
tent judicial analysis,” my colleagues instruct, “would re-
quire expert psychological analysis” of both the juvenile of-
fender and “his milieu.” Slip op. at 10 (emphasis added). So-
ciological considerations also must enter the sentencing
court’s analysis; it must consider both whether “other poten-
tial murderers [are] likely to be warned off murder upon
learning that a 16-year-old kid has been sentenced to life in
prison” and whether it “matter[s] greatly” to them “whether
a murderer such as McKinley is sentence to 20 years or 100
years.” Id. at 10–11.
    The majority’s conception of sentencing for juvenile of-
fenders may be a very salutary one. But it is not our preroga-
tive to establish such standards on habeas review.
   I therefore respectfully dissent.
