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


                     EX PARTE TERRELL MAXWELL, Applicant

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

        KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY,
J., joined.

                                 DISSENTING OPINION

       The majority correctly recounts what the Supreme Court held in Miller v. Alabama,1

but I dissent from its characterization of the Miller rule and what that portends for the issue

of its retroactivity. In my mind, the Miller rule is clearly procedural and therefore should not

be applied retroactively. Because Terrell Maxwell’s writ application alleges only that Miller

is a new substantive rule, I begin with the following assumptions: (1) like the majority, that




       1
           132 S.Ct. 2455 (2012).
                                                                   MAXWELL DISSENT—2

Miller is a new rule;2 and (2) Miller is not a “watershed” rule of procedure subject to

retroactivity.

       The Miller Court held that statutory sentencing schemes that automatically impose a

life-without-parole sentence on juvenile defendants violate the Eighth Amendment’s

prohibition of cruel and unusual punishment.3 The Court’s holding was informed by two

lines of precedent—the categorical ban on sentencing practices imposed on a class of

offenders and the mandatory imposition of capital punishment.4 In Roper v. Simmons,5 in

which it concluded that the death penalty for juvenile offenders under 18 years of age was

unconstitutional, and in Graham v. Florida,6 in which it held that a life-without-parole

sentence could not be imposed on juveniles for a nonhomicide offense, the Court

“establish[ed] that children are constitutionally different from adults for purposes of

sentencing” because “juveniles have diminished culpability and greater prospect for


       2
          See id. at 2464, 2472 (concluding that Roper and Graham “leads to,” as opposed
to “compels” its decision and stating “we are breaking no new ground in these cases); see
also id. at 2480 (Roberts, C.J., dissenting) (“If the Court is unwilling to say that precedent
compels today’s decision, perhaps it should reconsider that decision.”). But see id. at 2466
(majority opinion) (“‘An offender’s age,’ we made clear in Graham, ‘is relevant to the
Eighth Amendment,’ and so ‘criminal procedure laws that fail to take defendants’
youthfulness into account at all would be flawed.’”) (quoting Graham v. Florida, 560
U.S. 48, 76 (2010)).
       3
           Id. at 2464.
       4
           Id. at 2463–64.
       5
           543 U.S. 551 (2005).
       6
           560 U.S. 48 (2010).
                                                                  MAXWELL DISSENT—3

reform.”7 Miller was also influenced by Woodson v. North Carolina,8 which held that

mandatory imposition of the death penalty is unconstitutional because it failed to allow for

individualized sentencing decisions.

       What the Miller Court found unconstitutional in these sentencing schemes is how a

life-without-parole sentence for juveniles is imposed.      In holding that these statutes

unconstitutionally fail to give a factfinder the opportunity to consider the unique

characteristics of a defendant’s youth, the Court essentially removed the term “mandatory”

from the statutory language. The punishment Miller received was life without parole, not

“mandatory life without parole.” Pursuant to Alabama law, Miller’s life-without-parole

sentence was imposed mandatorily—in other words, without discretion from the sentencing

authority. I am unaware of any defendant being sentenced to “mandatory life without

parole,” at least not in Texas. The sentence is life without parole. This is an obvious

observation, but it is a distinction I believe the majority misses when it claims that “a

juvenile’s mandatory ‘life without parole’ sentence is outside the ambit of the State’s

power.”9 Miller did not prohibit life-without-parole sentences for juveniles; it prohibited

imposing them mandatorily.

       This is not merely semantic. Describing Miller’s holding this way recognizes



       7
           Miller, 132 S.Ct. at 2464.
       8
           428 U.S. 280 (1976).
       9
           Ante, op. at 13 (emphasis in original).
                                                                     MAXWELL DISSENT—4

precisely how the Court has drawn the line between substantive rules that are retroactive and

procedural rules that are not. The Court’s opinion in Schriro v. Summerlin,10 which defined

these terms, indicates that the holding in Miller did not announce a substantive rule. In

Summerlin, the issue before the Court was whether or not Ring v. Arizona,11 which found

unconstitutional Arizona’s statute permitting the finding of necessary aggravating factors to

impose the death penalty by a judge instead of a jury,12 applies retroactively to cases already

final on direct review.13 The Court began by repeating its familiar retroactivity analysis:

       When a decision of this Court results in a “new rule,” that rule applies to all
       criminal cases still pending on direct review. As to convictions that are
       already final, however, the rule applies only in limited circumstances. New
       substantive rules generally apply retroactively. This includes decisions that
       narrow the scope of a criminal statute by interpreting its terms, . . . as well as
       constitutional determinations that place particular conduct or persons covered
       by the statute beyond the State’s power to punish . . . . Such rules apply
       retroactively because they “necessarily carry a significant risk that a defendant
       stands convicted of ‘an act that the law does not make criminal’” or faces a
       punishment that the law cannot impose upon him. 14

Procedural rules, on the other hand, are generally not applied retroactively because “[t]hey

do not produce a class of persons convicted of conduct the law does not make criminal, but

merely raise the possibility that someone convicted with use of the invalidated procedure


       10
            542 U.S. 348 (2004).
       11
            536 U.S. 584 (2002).
       12
            Summerlin, 542 U.S. at 350–51.
       13
            Id. at 349.
       14
            Id. at 351–52 (citations omitted).
                                                                 MAXWELL DISSENT—5

might have been acquitted otherwise.”15 “[O]nly a small set of watershed rules of criminal

procedure implicating the fundamental fairness and accuracy of criminal proceedings” are

given retroactive effect.16 Substantive rules “alter[] the range of conduct or the class of

persons that the law punishes”; procedural rules “regulate only the manner of determining

the defendant’s culpability.”17

       By these definitions, the Miller rule is procedural—it regulates the manner of

imposing a life-without-parole sentence for juveniles. Miller did not conclude that a life-

without-parole sentence imposed on a juvenile is unconstitutional and therefore did not

change in any way the “class of person that the law punishes.” On this issue, the Miller

Court’s language could hardly be clearer: “we do not consider [petitioners’] alternative

arguments that the Eighth Amendment requires a categorical bar on life without parole for

juveniles”;18 “Although we do not foreclose a sentencer’s ability to make [a life-without-

parole] judgment in homicide cases, we require it to take into account how children are

different . . .”;19 and “Our decision does not categorically bar a penalty for a class of

offenders or type of crime—as, for example, we did in Roper and Graham.”20

       15
            Id. at 352.
       16
            Id. (internal quotations omitted).
       17
            Id. at 353 (emphasis in original).
       18
            Miller, 132 S.Ct. at 2469.
       19
            Id.
       20
            Id. at 2471.
                                                                    MAXWELL DISSENT—6

       From the number of decisions from other jurisdictions taking a position on Miller’s

retroactivity identified in the majority’s research, the Court adopts, without explanation, the

unpublished reasoning of a New Hampshire trial judge in holding that Miller is a substantive

rule.21 I find that reasoning unpersuasive. The portion of the judge’s ruling the majority

adopts and reproduces in its opinion is the judge’s attempt to distinguish Summerlin’s

treatment of Ring, which the Court held to be non-retroactive, from the question of Miller’s

retroactivity. The judge began by stating that “unlike Ring, Miller does not alter the manner

of determining culpability. Instead Miller alters the range of outcomes available for certain

criminal conduct.”22 These statements miss the direct correlation between the manner of

determining culpability and the resulting punishment outcome. It is Miller’s alteration of

the manner—or procedure—of making punishment decisions that makes a wider range of

potential punishment outcomes possible.

       In rejecting the argument that Miller announced a procedural rule, the judge concluded

that, “Before Miller, there was no method to determine whether a juvenile’s conduct was

punishable by life in prison without parole—it was automatic and mandatory. After Miller,

there is a range of new outcomes—discretionary sentences that can extend up to life without

the possibility of parole but also include the more lenient alternatives.”23 Even if we dismiss


       21
            Ante, op. at 14.
       22
        Tulloch v. Gerry, Trial Order, Nos. 12-CV-849, 13-CV-050, 13-CV-085,
08-CR-1235, 2013 WL 4011621, *7 (N.H. Sup. Ct. Jul. 29, 2013).
       23
            Id.
                                                                     MAXWELL DISSENT—7

the judge’s implicit acknowledgment that Miller created a new, constitutional procedure for

punishment decisions of a juvenile, the possibility of lesser sentences being imposed after

Miller is not evidence of a substantive rule. Despite the attempts, the judge’s reasoning

cannot avoid Summerlin’s instruction that substantive rules are those that alter the range of

conduct or the class of persons that the law punishes.24 The range of punishable conduct and

the class of juveniles eligible to receive a life-without-parole sentence are no smaller after

Miller. It is not “a punishment that the law cannot impose on him.”25 After considering the

defendant’s youth, a factfinder is still able to impose a life-without-parole sentence. Indeed,

the Court’s opinion today states that Maxwell may still be sentenced to life-without-parole

upon further sentencing proceedings.26 The mere possibility that a factfinder may in certain

cases impose a lesser sentence is irrelevant for purposes of determining Miller’s retroactivity.

       For these reasons, I would hold that Miller is not retroactive and cannot support

Maxwell’s request for relief. Accordingly, I would deny his application for a writ of habeas

corpus.



FILED: March 12, 2014

PUBLISH



       24
            See Summerlin, 542 U.S. at 353.
       25
            Ante, op. at 11 (citing Jones v. State, 122 So.3d 698, 702 (Miss. 2013).
       26
            Id. at 15.
