                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                        A14-0084


Hennepin County                                                             Dietzen, J.
                                                               Concurring, Anderson, J.
                                                               Concurring, Lillehaug, J.
                                                                   Dissenting, Page, J.

LaMonte Rydell Martin,

                      Appellant,

vs.                                                               Filed: June 17, 2015
                                                             Office of Appellate Courts
State of Minnesota,

                      Respondent.
                             ________________________

Michael McGlennen, Minneapolis, Minnesota, for appellant.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant Hennepin
County Attorney, Minneapolis, Minnesota, for respondent.
                           ________________________

                                      SYLLABUS

      1.     The postconviction court did not abuse its discretion by concluding,

without requiring the witness to testify, that the witness validly invoked the privilege

against self-incrimination through his attorney at an evidentiary hearing. Moreover, the

court did not err by denying the defendant’s motion, brought under Minn. Stat. § 609.09,




                                           1
subd. 1 (2014), to grant a witness immunity to testify to overcome a claim of the privilege

against self-incrimination.

       2.     The postconviction court did not abuse its discretion by denying the

appellant’s first petition for postconviction relief on the ground that the witness

recantation claim lacked merit.

       3.     Because Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012) does not

apply retroactively, appellant’s second petition for postconviction relief is time-barred

under Minn. Stat. § 590.01, subd. 4(a) (2014), and therefore the postconviction court did

not abuse its discretion in denying the second petition.

       Affirmed.

       Considered and decided by the court without oral argument.

                                       OPINION

DIETZEN, Justice.

       Appellant LaMonte Rydell Martin was found guilty of first-degree murder

committed for the benefit of a gang and first-degree premeditated murder. The district

court entered judgment of conviction for first-degree premeditated murder, and imposed a

sentence of life without the possibility of release (LWOR). The conviction and sentence

were affirmed on direct appeal. State v. Martin (Martin I), 773 N.W.2d 89 (Minn. 2009).

       In August 2011, Martin filed a petition for postconviction relief alleging, among

other things, recantations by two witnesses. On appeal, we reversed in part, concluding

that Martin was entitled to an evidentiary hearing on his witness recantation claim, but

affirmed the denial of his other claims. Martin v. State (Martin II), 825 N.W.2d 734

                                             2
(Minn. 2013). We remanded the case to the postconviction court for an evidentiary

hearing on the witness recantation claim. Id. at 743. Subsequently, Martin filed a second

petition for postconviction relief, alleging that his life sentence is unconstitutional under

the Federal and State Constitutions, and claiming he is entitled to the retroactive

application of Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012). On remand, the

postconviction court consolidated both matters, conducted an evidentiary hearing, and

then denied Martin’s witness recantation claim from his first postconviction petition, and

denied his second postconviction petition. We affirm.

       Martin was charged by criminal complaint with aiding and abetting first-degree

premeditated murder, Minn. Stat. § 609.185(a)(1) (2014), and committing a crime for the

benefit of a gang, Minn. Stat. § 609.229, subd. 2 (2014), arising out of the execution-style

homicide of Christopher Lynch on May 3, 2006. The murder occurred six weeks before

Martin’s eighteenth birthday.      Pursuant to Minn. Stat. §§ 260B.007, subd. 6(b);

260B.101, subd. 2 (2014), Martin was automatically certified as an adult and indicted by

a grand jury on both charges. The grand jury also indicted Cornelius Jackson and Jonard

McDaniel for murder for their role in aiding Martin and for committing a crime for the

benefit of a gang.

       At trial the State presented evidence that Christopher Lynch was an innocent

victim and that his murder was “collateral damage” in an on-going dispute between

Martin’s gang, the One-Nines, and a rival gang. The identity of the shooters was a highly

contested issue at trial. Only two of the State’s eyewitnesses, Jermaine Mack-Lynch and

his older brother Charles Pettis, were able to provide direct evidence that Martin and

                                             3
Jackson shot Lynch. Ten-year-old S.H. witnessed the shooting from his back porch. He

could not see the two shooters’ faces, but he did observe that the shooters were black men

wearing hats.1

      Following trial, the jury found Martin guilty of both offenses. At the sentencing

hearing, Martin presented evidence in support of his argument that, due to his age and

mental capacity, the imposition of a LWOR sentence constituted cruel and/or unusual

punishment under both the Federal and State Constitutions. The district court disagreed,

explaining that Martin was less than two months away from his eighteenth birthday when

he committed the offense, and therefore his “age of 17 is not a factor that renders the

punishment of life in prison without parole unconstitutional.” Martin was convicted of

first-degree premeditated murder and the district court imposed a LWOR sentence.

      On direct appeal, Martin asserted nine claims, including a claim that his LWOR

sentence constituted cruel and unusual punishment because he was a juvenile at the time

of the crime. Martin I, 773 N.W.2d at 97.2 We affirmed Martin’s conviction and



1
     A more detailed description of the facts of this case can be found in Martin I, 773
N.W.2d at 95-97, and Martin II, 825 N.W.2d at 737-38.
2
        Martin asserted eight additional claims on direct appeal: (1) the evidence was not
sufficient to support the conviction of crime committed for the benefit of a gang; (2) the
State committed a discovery violation when it failed to disclose the notes of a police
investigation; (3) his trial counsel was ineffective when she failed to investigate the
State’s “key” witnesses; (4) the district court erred when it joined Martin’s case with his
co-defendants’ cases for trial; (5) the district court erred when it sustained the
prosecutor’s peremptory challenge of a prospective juror; (6) the district court erred when
it refused to play audio and video evidence of the scene; (7) the district court erred in
allowing Pettis to testify after he heard the testimony of another witness; and (8) the
                                                        (Footnote continued on next page.)
                                            4
sentence, concluding, among other things, that the punishment of LWOR was not

unconstitutional as applied to Martin. Id. at 99.

       In August 2011, Martin filed a petition for postconviction relief pursuant to Minn.

Stat. § 590.01, subd. 1 (2014). The petition alleged seven claims, including a claim that

Martin was entitled to an evidentiary hearing and a new trial based on the recantations of

Mack-Lynch and Pettis. The postconviction court concluded that Martin failed to satisfy

the three-part test articulated in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir.

1928), to establish his witness recantation claim, and therefore he was not entitled to an

evidentiary hearing under Minn. Stat. § 590.04, subd. 1 (2014).        The court denied

Martin’s other claims. On appeal, we reversed the summary denial of Martin’s witness

recantation claim, but affirmed the denial of Martin’s other claims. Martin II, 825

N.W.2d at 746. We concluded that Martin presented competent material evidence that, if

found to be true, could satisfy the Larrison test and warrant a new trial. Id. at 743.

Therefore, we remanded for an evidentiary hearing “to assess the credibility of the

recanting witnesses, and to determine whether Martin satisfies the Larrison factors, and

therefore is entitled to a new trial.” Id. at 744.3




(Footnote continued from previous page.)
prosecutor committed reversible error during witness questioning and closing argument.
See Martin, 773 N.W.2d at 97-110.
3
      In support of his witness recantation claim, Martin also submitted affidavits of
fellow inmate Jesse Walker and defense investigator Michael Grostyan. Because we
concluded that a postconviction evidentiary hearing was required based on the affidavits
of Mack-Lynch and Pettis, we did not consider the affidavits of Walker and Grostyan.
                                                     (Footnote continued on next page.)
                                                5
       Subsequently, Martin filed a second petition for postconviction relief arguing that

his LWOR sentence: (1) violates his substantive constitutional rights under the Eighth

Amendment to the U.S. Constitution, which prohibits cruel and unusual punishment, and

Article I, Section 5 of the Minnesota Constitution, which prohibits cruel or unusual

punishment, in light the United States Supreme Court’s holding in Miller v. Alabama,

___U.S. ___, 132 S. Ct. 2455 (2012); (2) violates his Sixth Amendment right to a jury

trial; (3) violates his Fourteenth Amendment right to equal protection of the laws; and

(4) should be modified in the interests of justice. The State opposed Martin’s second

petition, arguing that Martin’s claims were procedurally barred, time-barred, and moot.

       The postconviction court conducted an evidentiary hearing in September 2013.

The court received into evidence the affidavits of Mack-Lynch and Pettis recanting their

trial testimony. Martin subpoenaed Pettis to testify, but Pettis did not appear at the

hearing.   Instead, Pettis’s attorney appeared and stated Pettis would invoke the

protections of the Fifth Amendment to the United States Constitution and Article I,

Section 7 of the Minnesota Constitution, and moved to quash the subpoena. The court

granted the motion to quash the subpoena. Martin did not subpoena Mack-Lynch, did not

call him as a witness, and rested without calling any further witnesses.

       The State presented evidence that Mack-Lynch’s and Pettis’s recantations in their

affidavits were false and were the product of Martin’s concerted criminal activity with


(Footnote continued from previous page.)
Martin II, 825 N.W.2d at 739 n.5. The affidavits of those witnesses are no longer at issue
in this case.

                                             6
others to bribe, threaten, and coerce Mack-Lynch and Pettis to recant. Specifically, the

State introduced the charging documents, guilty plea, and sentencing orders in a related

witness tampering case, in which Martin pleaded guilty and was convicted of two counts

of bribery for his conduct regarding witnesses Mack-Lynch and Pettis. At the plea

hearing in the witness tampering case, Martin admitted that he, with the assistance of

others, provided monetary payoffs to Mack-Lynch and Pettis to obtain their recanting

affidavits.4

       Moreover, the state introduced into evidence Mack-Lynch’s testimony given in the

case of State v. Bobo. In that testimony, Mack-Lynch admitted that his affidavit for

Martin in this case was completely false. Mack-Lynch explained that Martin and his

“gang friends” threatened Mack-Lynch’s family in order to coerce Mack-Lynch into

signing the affidavit. Additionally, they later offered Mack-Lynch money to not talk to

an investigator. The State also presented the testimony of other witnesses, including an

investigator with the Department of Corrections who testified that she had investigated

potential witness tampering involving members of the One-Nines gang, and had learned

that Mack-Lynch and Pettis were being pressured to recant their testimony in Martin’s

trial. As part of the investigation, she recovered letters from Martin showing that he was

implementing a plan to bribe, threaten, and coerce Mack-Lynch and Pettis to recant their

trial testimony.

4
      Martin was assisted by nine individuals, including Hakeem Flax, Jesse Walker,
Ramonda Rondell Bumpus, and Martin’s mother, Heidi Mastin. As a result of the
criminal misconduct, all nine of Martin’s co-defendants pleaded guilty and were
convicted of various crimes.

                                            7
       The postconviction court denied Martin’s first petition, concluding that Martin had

failed to establish the three prongs of the Larrison test for witness recantation claims.

Specifically, the court found that the Mack-Lynch and Pettis affidavits were the product

of threats, coercion, and bribes, and that Martin purposely and knowingly filed false

documents and perverted the legitimate use of legal process in his fraudulent attempt to

obtain a new trial. The court denied Martin’s second petition, concluding that Martin was

not entitled to the retroactive benefit of Miller, and therefore the petition was:

(1) procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976);

and (2) time-barred under Minn. Stat. § 590.01, subd. 4(a). The court also rejected

Martin’s Equal Protection and Sixth Amendment jury trial claims.

       Martin argues in this appeal that the postconviction court erred by: (1) allowing

Pettis to invoke his Fifth Amendment privilege against self-incrimination without

requiring Pettis to testify at the evidentiary hearing; (2) concluding that the evidence was

not sufficient to support Martin’s first petition for postconviction relief; and

(3) concluding Martin’s sentence is constitutional and that he is not entitled to the

retroactive benefit of Miller.

                                             I.

       We review a postconviction court’s legal determinations de novo, and its factual

findings for clear error. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “It is for the

trial court to decide whether the witness’ claim of the privilege [against self-

incrimination] is valid, and in making this decision the court has broad discretion.” State

v. Moose, 266 N.W.2d 521, 525 (Minn. 1978). We review a court’s determination

                                             8
regarding the validity of a witness’s claim of privilege for an abuse of discretion. State v.

Manley, 664 N.W.2d 275, 286 (Minn. 2003).

                                             A.

       Martin first argues that Pettis’s invocation of the privilege against self-

incrimination through his attorney at the evidentiary hearing was not valid. According to

Martin, the postconviction court erred by not placing Pettis under oath and requiring him

to assert the privilege to each question he was asked. Martin argues that without the

opportunity to hear Pettis testify, the postconviction court did not fulfill its obligation on

remand to assess the credibility of the recanting witnesses.

       The Fifth Amendment of the United States Constitution and Article 1, Section 7 of

the Minnesota Constitution declare that no person shall “be compelled in any criminal

case to be a witness against himself.” U.S. Const. Amend. V; Minn. Const. art. I, § 7.

The privilege prevents an individual from being forced to “answer official questions put

to him in any . . . proceeding, civil or criminal, formal or informal, where the answers

might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S. 70,

77 (1973); see also Johnson v. Fabian, 735 N.W.2d 295, 299 (Minn. 2007).

       The United States Supreme Court has held the privilege against self-incrimination

may be claimed when a witness has “reasonable cause” to apprehend danger from

answering. Ohio v. Reiner, 532 U.S. 17, 21 (2001). The privilege extends to answers

that “would furnish a link in the chain of evidence needed to prosecute the claimant for a

. . . crime.” Hoffman v. United States, 341 U.S. 479, 486 (1951). The inquiry is for the

court; the witness’s assertion of the privilege does not by itself establish the risk of

                                              9
incrimination. Id. To sustain the privilege, it need only be evident from the implications

of the setting and the questions to be asked “that a responsive answer to the question or

an explanation of why it cannot be answered might be dangerous because injurious

disclosure could result.” Id. at 487. Put differently, to require the witness to prove the

hazard of the claim of privilege would eliminate the protection that the privilege is

designed to guarantee. Id. at 486.

       Generally, a “[p]rivilege is personal to those to whom it belongs and is waived

unless asserted by them.” Esser v. Brophey, 212 Minn. 194, 197, 3 N.W.2d 3, 4 (1942).

We have, however, implicitly approved an attorney’s claim of the privilege against self-

incrimination for his absent client. Moose, 266 N.W.2d at 524-25 (rejecting ineffective

assistance of counsel claim based on defense counsel’s decision not to call a witness after

the witness had claimed the privilege against self-incrimination through his counsel); see

also Manley, 664 N.W.2d at 286 (concluding that trial court did not abuse its discretion

when it declined, despite the request of defense counsel, to question the witness to

determine whether the witness had validly invoked the privilege against self-

incrimination through his counsel).

       We conclude the postconviction court did not abuse its discretion in concluding

that Pettis validly invoked the privilege against self-incrimination, even though it did so

without Pettis being present. The privilege against self-incrimination was expressly

raised by Pettis’s attorney at the time Pettis was called to testify. The claim of privilege

did not require Pettis’s presence because the risk of self-incrimination was obvious. The

only purpose for Pettis’s testimony at the evidentiary hearing was to discuss his

                                            10
conflicting statements at trial and in the affidavit. In fact, the State presented evidence

that Pettis’s affidavit was the product of bribes, threats, and coercion. Consequently, the

court was not required to have Pettis take the stand to assert the privilege.

                                               B.

       Alternatively, Martin argues that the postconviction court erred by refusing to

grant his request for judicial immunity to compel Pettis to testify at the evidentiary

hearing. Martin contends that the postconviction court should have compelled Pettis to

testify in order to assess the credibility of his recantation.

       The general immunity statute in Minnesota, Minn. Stat. § 609.09, subd. 1 (2014),

provides, in relevant part:

            In any criminal proceeding, . . . if it appears a person may be
            entitled to refuse to answer a question . . . on the ground that the
            person may be incriminated thereby, and if the prosecuting
            attorney, in writing, requests the . . . judge of the court in which the
            proceeding is pending to order that person to answer the question
            . . ., the judge, after notice to the witness and hearing, shall so order
            if the judge finds that to do so would not be contrary to the public
            interest and would not be likely to expose the witness to
            prosecution in another state or in the federal courts.

Pursuant to the statute, the court may grant the written request of the prosecuting attorney

in a criminal proceeding to grant immunity to a witness in certain circumstances set forth

in the statute to allow compelled testimony to overcome an assertion of the privilege

against self-incrimination. State v. Peirce, 364 N.W.2d 801, 808-09 (Minn. 1985); see

also State ex rel. Windschitl v. Landkammer, 299 Minn. 184, 190-91, 217 N.W.2d 494,

498-99 (1974). Thereafter, the district court must apply the statutory criteria to determine

whether immunity should be granted. See Minn. Stat. § 609.09, subd. 1. Consequently,

                                               11
if the defense wishes to obtain immunity for a witness, it must ask the prosecutor to make

a written request to the court. Windschitl, 299 Minn. at 191, 217 N.W.2d at 499.

       In Peirce, we considered whether the district court erred in concluding that in the

absence of a request by the prosecutor, it lacked authority to grant a defendant’s request

to grant immunity to two codefendants so that they could testify in his defense. 364

N.W.2d at 808. We affirmed the district court on the ground that the “trial court . . .

lack[s] the authority and power to grant immunity” even when it is alleged that the

witness has important exculpatory evidence not otherwise available to the defendant. Id.

at 809. We reasoned that allowing the defense to offer a witness immunity would be an

“impermissible intrusion into prosecutorial discretion which must remain with the

executive branch,” and that granting such a request would be “vulnerable to manipulation

and abuse by codefendants and others with a common interest in evading guilt.” 5 Id. We

observed there was no claim of prosecutorial misconduct, such as the prosecutor making

a witness unavailable to testify. Id.

       It is unclear whether Minnesota’s immunity statute applies to a postconviction

hearing. We conclude that even if Minn. Stat. § 609.09, subd. 1 applies, the district court

5
        Our approach is consistent with the United States Supreme Court’s interpretation
of the federal immunity statute, 18 U.S.C. §§ 6002-6003 (2012). The Supreme Court has
declined to extend the jurisdiction of the courts to include grants of judicial immunity in
the absence of the formal request required by statute. United States v. Doe, 465 U.S. 605,
616-17 (1984). In passing the use immunity statute, “Congress gave certain officials in
the Department of Justice exclusive authority to grant immunities.” Pillsbury Co. v.
Conboy, 459 U.S. 248, 253-54 (1983). The Court has interpreted this to mean that
“Congress foresaw the courts as playing only a minor role in the immunizing process.”
Id. at 254 n.11.



                                            12
did not err in denying Martin’s motion. The statute clearly requires that a written request

for witness immunity come from the prosecutor, which did not occur in this case.

Moreover, there is no evidence that the State caused Pettis to be unavailable to testify. In

fact, the evidence is that Martin engaged in criminal conduct to coerce Pettis to recant his

testimony.

                                            II.

       Martin next argues that the postconviction court erred in concluding that his

witness recantation claim and his request for a new trial lacked merit. We review the

denial of a petition for postconviction relief for an abuse of discretion.       Riley, 819

N.W.2d at 167.     Specifically, we review a postconviction court’s legal conclusions

de novo. Andersen v. State, 830 N.W.2d 1, 6 (Minn. 2013). But we will not reverse the

court’s factual findings unless they are clearly erroneous. Riley, 819 N.W.2d at 167.

       To obtain a new trial on the ground of newly discovered evidence of the

recantation of a witness’s trial testimony, we apply the three-prong Larrison test.

Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928); Doppler v. State, 771

N.W.2d 867, 872 (Minn. 2009).6        The criteria to determine whether a defendant is

entitled to a new trial on a witness recantation claim are that: (1) the court is reasonably

well-satisfied that the testimony given by a material witness was false; (2) without the

false testimony the jury might have reached a different conclusion; and (3) the petitioner


6
       Although Larrison has been overruled, see United States v. Mitrione, 357 F.3d
712, 718 (7th Cir. 2004), Minnesota courts continue to apply the Larrison test to claims
of witness recantation. Martin II, 825 N.W.2d at 739 n.6.

                                            13
was taken by surprise when the false testimony was given and was unable to respond to it

or did not know of the falsity until after trial. State v. Turnage, 729 N.W.2d 593, 597

(Minn. 2007). The third prong of the test is not a condition precedent for granting a new

trial, but is a factor the court should consider in making its determination. Ferguson v.

State, 779 N.W.2d 555, 559 (Minn. 2010). The first criterion is satisfied when the court

is reasonably certain that the recantation is genuine. Id. at 559-60. But a statement

merely contradicting earlier testimony or a conclusion that a witness is generally

unreliable is not sufficient. Id. at 559-60; Opsahl v. State, 710 N.W.2d 776, 782 (Minn.

2006).      At a minimum the recantation must contain “sufficient indicia of

trustworthiness.” Martin II, 825 N.W.2d at 741.

         Based on the evidence presented at the evidentiary hearing, the postconviction

court concluded Martin failed to establish that the trial testimony of Mack-Lynch and

Pettis was false, and therefore Martin failed to satisfy the first prong of the Larrison test.

The court found that the affidavit executed by Mack-Lynch was, by Mack-Lynch’s own

admission, a complete fabrication. Further, the court found that Pettis’s affidavit was the

product of relentless pressure by Martin, exerted through the cooperation of fellow prison

inmates, gang members, associates, and other agents, and therefore Pettis’s recantation

was not credible and had no indicia of reliability. Martin’s testimony at his guilty plea

hearing in the witness tampering case and Mack-Lynch’s testimony in the State v. Bobo

matter provided additional support that the Mack-Lynch and Pettis recantations were not

genuine, credible, truthful, or reliable.



                                             14
       The postconviction court’s conclusion that Martin failed to establish the first

prong of the Larrison test is amply supported by the record. The evidentiary hearing

provided strong evidence of witness tampering of Mack-Lynch and Pettis that resulted in

Martin’s conviction on bribery charges. This evidence coupled with the testimony of

Mack-Lynch in the State v. Bobo matter that his recanting affidavit was false and was

obtained as a result of coercion and bribery amply support the postconviction court’s

conclusion that Mack-Lynch’s and Pettis’s recantations were disingenuous.7 Therefore,

Martin failed to satisfy the first prong of the Larrison test, and it is not necessary to

address the other Larrison criteria.

                                           III.

       Martin argues in his second petition that his LWOR sentence is unconstitutional

under the Federal and State constitutions. Specifically, Martin claims that his LWOR

sentence: (1) violates his substantive constitutional rights under the Eighth Amendment

to the U.S. Constitution prohibiting cruel and unusual punishment and Article I, Section 5

of the Minnesota Constitution in light of Miller, ___ U.S. at ___, 132 S. Ct. at 2455;

(2) violates his Sixth Amendment right to trial by jury; (3) violates his Fourteenth

Amendment right to equal protection of the laws; and (4) should be modified in the

7
       In Martin II, we stated that an evidentiary hearing was required to assess the
credibility of Mack-Lynch’s and Pettis’s postconviction testimony. Specifically we
stated that “when viewed in a light most favorable to the petition, the Mack-Lynch and
Pettis affidavits present prima facie evidence of the first prong of the Larrison test.”
Martin II, 825 N.W.2d at 743. On remand, the postconviction court conducted the
evidentiary hearing, which produced evidence that Martin engaged in a concerted effort
of witness tampering and bribery of Mack-Lynch and Pettis that ultimately resulted in
Martin’s conviction of bribery.

                                           15
interests of justice. Martin acknowledges that the two-year time bar for postconviction

relief under Minn. Stat. § 590.01, subd. 4(a), expired on January 6, 2012, and that he did

not file his second petition until July 23, 2013, but Martin contends that his Miller claim

is timely under Minn. Stat. § 590.01, subd. 4(b)(3), which is an exception to the time-bar

for a new interpretation of federal law that is “retroactively applicable to the petitioner’s

case.” Specifically, Martin contends that the holding of Miller, ___ U.S. at ___, 132

S. Ct. at 2455, applies retroactively to him. Alternatively, Martin argues that his claims

should be reviewed in the interests of justice. Minn. Stat. § 590.01, subd. 4(b)(5).

       The postconviction court concluded that Martin’s interests of justice argument

lacked merit because it was not supported by any evidence. Similarly, Martin makes no

showing in his materials to this Court that his claim should be reviewed in the interests of

justice. Therefore, Martin must show that Miller applies retroactively to him to avoid

having his petition be time-barred under Minn. Stat. § 590.01, subd. 4(a).

                                             A.

       In Miller, the United States Supreme Court considered whether the imposition of a

mandatory life sentence without the possibility of release for those under the age of 18 at

the time of their crimes violated the Eighth Amendment’s prohibition against cruel and

unusual punishment.     ___ U.S. at ___, 132 S. Ct. at 2460. The case involved the

consolidated appeals of two 14-year-olds convicted of homicide.8            Id.   The Court


8
      The two cases were Jackson v. Hobbs and Miller v. Alabama. The Jackson case
was before the Court on a writ of certiorari from a decision of the Arkansas Supreme
Court that affirmed the dismissal of Jackson’s state petition for habeas corpus.
                                                    (Footnote continued on next page.)
                                             16
concluded that “the Eighth Amendment forbids a sentencing scheme that mandates life in

prison without possibility of parole for juvenile offenders.” Id. at ___, 132 S. Ct. at 2469.

We have previously held that the Miller rule does not apply retroactively to a juvenile

whose LWOR sentence became final before the Miller rule was announced.                   See

Chambers v. State, 831 N.W.2d 311, 331 (Minn. 2013); Roman Nose v. State, 845

N.W.2d 193, 200 (Minn. 2014).

       Martin contends that we should reconsider our decisions in Chambers and Roman

Nose in light of the federal district court decision, Flowers v. Roy, Civ. No. 13-1508

(JNE/SER), 2014 WL 1757898, at *1 (D. Minn. May 1, 2014), which held that Miller

applies retroactively to a juvenile seeking collateral review of a LWOR sentence. The

Eighth Circuit Court of Appeals, however, has concluded that Miller is not retroactively

applicable to cases on collateral review. Martin v. Symmes, 782 F.3d 939, 943 (8th Cir.

2015). Because Martin has not raised a compelling reason for us to reconsider our

previous decisions on this issue, we conclude, as we did in Chambers and Roman Nose,

that Miller does not apply retroactively to a juvenile whose LWOR sentence became final

before the Miller rule was announced.9



(Footnote continued from previous page.)
Miller,___ U.S. at ___, 132 S. Ct. at 2461, 2463. In Miller, the Court granted certiorari to
review a decision by the Alabama Court of Criminal Appeals that affirmed Miller’s
conviction and sentence on direct appeal. Id. at ___, 132 S. Ct. at 2462-63.
9
       The United States Supreme Court has not yet addressed the question of Miller
retroactivity. We note that the Supreme Court has granted certiorari in Montgomery v.
Louisiana, which presents the questions of whether: (1) the United States Supreme Court
has jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to
                                                      (Footnote continued on next page.)
                                             17
       Martin also claims that his sentence of LWOR violates his Sixth Amendment right

to a jury trial and Fourteenth Amendment right to equal protection of the laws. But

Martin’s claims rest upon Miller being applied retroactively to him, a proposition we

have previously rejected. We therefore reject these claims as well.

       We conclude that Martin’s second petition for postconviction relief is time-barred

under Minn. Stat. § 590.01, subd. 4(a). Because Miller does not apply retroactively to

Martin, his second petition does not fall within the exception in Minn. Stat. § 590.01,

subd. 4(b)(3). Additionally, Martin has failed to argue any basis to support his claim that

his petition should be reviewed in the interests of justice. We, therefore, affirm the

postconviction court’s denial of Martin’s second petition for postconviction relief.

       Affirmed.




(Footnote continued from previous page.)
give retroactive effect in this case to the decision in Miller; and (2) Miller adopts a new
substantive rule that applies retroactively on collateral review to juveniles serving LWOR
sentences. See State v. Montgomery, 141 So. 3d 264 (La. 2014), cert. granted, ___ U.S.
___, 135 S. Ct. 1546 (Mar. 23, 2015)

                                            18
                                 CONCURRENCE

ANDERSON, Justice (concurring).

       The majority correctly concludes that Martin is not entitled to retroactive

application of Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), under Chambers

v. State, 831 N.W.2d 311, 331 (Minn. 2013), and Roman Nose v. State, 845 N.W.2d 193,

200 (Minn. 2014). But I write separately, as I did in Chambers and Roman Nose, to

reiterate the need for resolution of this issue by the United States Supreme Court, and

failing action in that forum, additional attention from our court.1

       In Miller, the Supreme Court fashioned a straightforward rule of seemingly

universal application: “mandatory life-without-parole sentences for juveniles violate the

Eighth Amendment.” ___ U.S. at ___, 132 S. Ct. at 2464. Yet, application of Miller to

cases on collateral review has been anything but universal. Several state appellate courts

have held that Miller presents a substantive rule of constitutional criminal procedure that

applies retroactively to cases on collateral review,2 while other state and federal courts,


1
       Although it appeared that the Supreme Court was prepared to answer this question
in State v. Toca, 141 So. 3d 265 (La. 2014), that case has been dismissed. Toca v.
Louisiana, ___ U.S. ___, 135 S. Ct. 1197 (2015) (dismissing writ of certiorari). The
Court now seeks to resolve this question in another case. See State v. Montgomery, 141
So. 3d 264 (La. 2014), cert. granted, ___ U.S. ___, 135 S. Ct. 1546 (Mar. 23, 2015).
2
       See Falcon v. State, ___ So. 3d ___, 2015 WL 1239365, at *8 (Fla. Mar. 19,
2015); People v. Davis, 6 N.E.3d 709, 722 (Ill. 2014), cert. denied, ___ U.S. ___, 135 S.
Ct. 710 (2014); State v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Diatchenko v. Dist.
Attorney, 1 N.E.3d 270, 281 (Mass. 2013); State v. Mantich, 842 N.W.2d 716, 731 (Neb.
2014), cert. denied, ___ U.S. ___, 135 S. Ct. 67 (2014); In re State, 103 A.3d 227, 236
(N.H. 2014), petition for cert. filed, No. 14-639 (U.S. Dec. 1, 2014); Aiken v. Byars, 765
S.E.2d 572, 575 (S.C. 2014), cert. denied, ___ U.S. ___, 2015 WL 730986 (June 1,
                                                        (Footnote continued on next page.)

                                            C-1
including our own, have denied collateral application of Miller.3 It is unsurprising that

states have come to different conclusions, as the Miller rule presents both substantive and

procedural characteristics. See Roman Nose, 845 N.W.2d at 202-04 (Anderson, G. Barry,

concurring). For now, I concur with the result here, based on existing precedent.




(Footnote continued from previous page.)
2015); Ex parte Maxwell, 424 S.W.3d 66, 75-76 (Tex. Crim. App. 2014); State v. Mares,
335 P.3d 487, 508 (Wyo. 2014).
3
       See Johnson v. Ponton, 780 F.3d 219, 226 (4th Cir. 2015); Martin v. Symmes, 782
F.3d 939, 944-45 (8th Cir. 2015); People v. Carp, 852 N.W.2d 801, 832, 841 (Mich.
2014), petition for cert. filed, No. 14-824 (U.S. Jan. 13, 2015); Chambers, 831 N.W.2d at
331; Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied, ___ U.S.
___, 134 S. Ct. 2724 (2014).


                                           C-2
                                CONCURRENCE

LILLEHAUG, Justice (concurring).

       On whether Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012), should be

applied retroactively, I concur based on the doctrine of stare decisis, as I did in Roman

Nose v. State, 845 N.W.2d 193, 204 (Minn. 2014) (Lillehaug, J., concurring).

       Four other state high courts have held that Miller is not retroactive, while ten

disagree. See Martin v. Symmes, 782 F.3d 939, 945 (8th Cir. 2015). I share Justice

G. Barry Anderson’s hope that the issue will soon be resolved by the United States

Supreme Court. Whether Miller is retroactive should not vary from state to state and

from juvenile to juvenile.




                                          C-1
                                       DISSENT

PAGE, Justice (dissenting).

       I respectfully dissent. I do so for the reasons set forth in section I of my dissent in

Chambers v. State, 831 N.W.2d 311, 342-44 (Minn. 2013) (Page, J., dissenting), and my

dissent in Roman Nose v. State, 845 N.W.2d 193, 204-05 (Minn. 2014) (Page, J.,

dissenting).




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