                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1821
                         ___________________________

                              Stafon Edward Thompson

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                      Tom Roy, Commissioner of Corrections

                        lllllllllllllllllllllRespondent - Appellee
                                        ____________

                      Appeal from United States District Court
                     for the District of Minnesota - Minneapolis
                                    ____________

                            Submitted: February 10, 2015
                               Filed: July 14, 2015
                                  ____________

Before GRUENDER, SHEPHERD, and KELLY, Circuit Judges.
                         ____________

GRUENDER, Circuit Judge.

       Stafon Thompson appeals from the district court’s1 judgment denying his
petition for relief under 28 U.S.C. § 2254. The district court denied relief because it


      1
       The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Jeffrey J.
Keyes, United States Magistrate Judge for the District of Minnesota.
concluded that the rule announced in Miller v. Alabama, 567 U.S. ---, 132 S. Ct. 2455
(2012), does not apply retroactively. We affirm.

      In 2009, a jury found Thompson guilty of two counts of first-degree
premeditated murder and two counts of first-degree murder while committing
aggravated robbery. Thompson was seventeen when he committed these crimes.
Pursuant to Minnesota law, he received two consecutive mandatory sentences of life
imprisonment without the possibility of release. Minn. Stat. §§ 609.185(a)(1),
609.106, subd. 2(1). The Minnesota Supreme Court affirmed Thompson’s convictions
and sentences on direct appeal. Minnesota v. Thompson, 788 N.W.2d 485, 496 (Minn.
2010).

       In 2012, the United States Supreme Court held in Miller v. Alabama, 132 S. Ct.
2455, that the Eighth Amendment forbids a sentencing scheme that mandates a
sentence of life in prison without the possibility of parole for juvenile offenders. Id.
at 2469. Miller thus announced a new obligation for state and federal courts to
conduct an individualized sentencing analysis before imposing such a sentence on
defendants who were under the age of eighteen at the time of their offense. Id.
Because Thompson was seventeen when he committed the murders, he petitioned for
relief under 28 U.S.C. § 2254, arguing that he received a sentence that is now
unconstitutional under Miller. The magistrate judge recommended dismissing
Thompson’s § 2254 petition with prejudice because he concluded that Miller’s rule
was not retroactively applicable. The district court adopted the magistrate judge’s
report and recommendation in full.

       On appeal, Thompson argues that the district court erred by concluding that
Miller does not apply retroactively. We review the district court’s determination on
this legal question de novo. Danforth v. Crist, 624 F.3d 915, 918 (8th Cir. 2010).




                                          -2-
       We recently considered this question in Martin v. Symmes, 782 F.3d 939 (8th
Cir. 2015).2 In Martin, a juvenile offender had been sentenced under the same
Minnesota statute to life in prison without the possibility of release. Id. at 941. Like
Thompson, the Martin petitioner requested § 2254 relief, arguing that Miller applied
retroactively to his sentence. Miller, he argued, announced a new rule of criminal
procedure that qualifies under either of the two exceptions to the general presumption
against retroactivity: (1) the new rule is substantive, or (2) the new rule is a watershed
rule of criminal procedure “implicating the fundamental fairness and accuracy of the
criminal proceeding.” Id. at 942 (quoting Whorton v. Bockting, 549 U.S. 406, 416
(2007)). A unanimous panel of our court rejected both arguments. Id. at 943-44.

       As we explained in Martin, Miller did not announce a new substantive rule
because it neither categorically barred a punishment nor placed a group of persons
beyond the state’s power to punish. Id. at 942. Indeed, the Supreme Court made clear
in Miller that the decision did not foreclose the imposition on juvenile offenders of a
discretionary sentence of life in prison without the possibility of parole. 132 S. Ct. at
2469. After Miller, as before, a court retains the power to impose such a penalty.
That the sentence now must be discretionary does not alter its substance. Like
Thompson, a juvenile defendant sentenced to life in prison without the possibility of
parole under Miller will spend the rest of his life in prison. “No one would say that
one defendant received greater or lesser punishment than the other.” Thompson v.
Roy, No. 13-CV-1524, 2014 WL 1234498, at *2 (D. Minn. March 25, 2014).
Accordingly, as we held in Martin, Miller did not create a new substantive rule.
Martin, 782 F.3d at 942.


      2
        As we explained in Martin, the Supreme Court granted certiorari to review this
question next term. See Montgomery v. Louisiana, 575 U.S. ---, 135 S. Ct. 1546
(2015). We note that the Supreme Court may not reach the issue, however, because
the Court also invited the parties to argue a threshold question: whether the Court has
jurisdiction to review the Supreme Court of Louisiana’s refusal to give Miller
retroactive effect. Id.
                                           -3-
       Thompson nevertheless argues that Miller is substantive because Miller,
according to Thompson, makes age an element of an offense, and “[a] decision that
modifies the elements of an offense is normally substantive rather than procedural.”
Schriro v. Summerlin, 542 U.S. 348, 354 (2004). This argument stems from Alleyne
v. United States, 570 U.S. ---, 133 S. Ct. 2151 (2013), which defines an element, for
Sixth Amendment purposes, as “any fact that increases the mandatory minimum”
sentence. Id. at 2155. Even if we assume that Miller somehow made age a necessary
element for imposing a sentence of life in prison without parole on juvenile offenders,
Thompson’s argument fails. The Supreme Court decided Alleyne after it decided
Miller. For Alleyne’s rule to apply here, Alleyne itself would have to apply
retroactively. See Michigan v. Carp, 852 N.W.2d 801, 829-30 (Mich. 2014). Our
court has not held that Alleyne applies retroactively, and Thompson fails to argue this
point before us now. We thus necessarily reject Thompson’s attempt to “bootstrap[]
[Alleyne] onto the rule in Miller to transform the latter from a nonretroactive
procedural rule into a retroactive substantive rule.” See id. at 830.

       Likewise, we find no merit in Thompson’s argument that Miller applies
retroactively because courts “universally” apply retroactively the rules from cases
cited in Miller, such as Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida,
560 U.S. 48 (2010), and Atkins v. Virginia, 536 U.S. 304 (2002). Though our court
has recognized that Atkins applies retroactively,3 Davis v. Norris, 423 F.3d 868, 879
(8th Cir. 2005), Atkins is easily distinguishable from Miller. Atkins categorically
“prohibit[ed] the execution of mentally retarded defendants,” id. at 879; Miller merely
announced a change in process. Martin, 782 F.3d at 942-43. In sum, “Miller shifted
decision-making authority for imposing a sentence of life without parole on a juvenile
homicide offender from the legislature to the judiciary, by way of its individualized


      3
     We have not ruled on the retroactivity of either Roper, 543 U.S. 551, or
Graham, 560 U.S. 48. See Martin, 782 F.3d at 942 n.4.


                                         -4-
sentencing requirements.” Carp, 852 N.W.2d at 826; cf. Schriro, 542 U.S. at 353
(holding that the new rule announced in Ring v. Arizona, 536 U.S. 584 (2002), did not
apply retroactively because it was a procedural rule that merely shifted decision-
making authority from the judge to the jury). As we held in Martin, this change is
procedural. 782 F.3d at 942-43.

       Martin also forecloses Thompson’s alternative contention that Miller
announced a new watershed rule of criminal procedure. Miller’s rule is not a
“bedrock” procedural element because it is not “essential to the fairness of a
proceeding,” Martin, 782 F.3d at 943 (quoting Bockting, 549 U.S. at 421), nor is it
part of the “small core of rules . . . implicit in the concept of ordered liberty.” Id.
(quoting Beard v. Banks, 542 U.S. 406, 417 (2004)). The Supreme Court has
emphasized the difficulty of attaining this threshold, stating that the guarantee of the
right to counsel announced in Gideon v. Wainwright, 372 U.S. 335 (1963), “might fall
within this exception,” Martin, 782 F.3d at 943 (quoting Beard, 542 U.S. at 417).
And unlike Gideon, Miller’s new rule does nothing to diminish the likelihood of an
accurate conviction. See Teague v. Lane, 489 U.S. 288, 313 (1989) (noting that a
watershed rule must be one “without which the likelihood of an accurate conviction
is seriously diminished”).

       Finally, Martin precludes Thompson’s argument that principles of fairness and
“evenhanded justice” require Miller’s retroactive application because the Supreme
Court applied Miller to Jackson v. Hobbs, the collateral-appeal case that was
consolidated with Miller. See Teague, 489 U.S. at 300 (noting that “evenhanded
justice” requires retroactive application to all similarly situated defendants). As we
explained in Martin, the Supreme Court remanded Jackson for reconsideration in light
of Miller; it did not did not state explicitly that Miller applies retroactively. Martin,
782 F.3d at 943-44. And the Court has “implied that its application of a new rule on
collateral review does not necessitate that rule’s application to other cases on
collateral review.” Id. (citing Chaidez v. United States, 568 U.S. ---, 133 S. Ct. 1103,
1105 (2013)). Moreover, several courts have noted that the State in Jackson failed to
                                            -5-
raise the non-retroactivity argument. See, e.g., Carp, 852 N.W.2d at 830. Thus, in
Jackson, “the question whether Miller should be applied retroactively was never
presented to the United States Supreme Court.” Id.; see Schiro v. Farley, 510 U.S.
222, 229 (1994) (refusing to consider the non-retroactivity defense because “a State
can waive [this] . . . bar by not raising it”).

    For the foregoing reasons, we affirm the district court’s judgment dismissing
Thompson’s petition.

KELLY, Circuit Judge, concurring in the judgment.

       A panel of this court in Martin v. Symmes, 782 F.3d 939, 943–44 (8th Cir.
2015), concluded that the rule announced in Miller v. Alabama, 132 S. Ct. 2455
(2012), does not apply retroactively. Based on that decision, I concur in the judgment.
See United States v. Bearden, 780 F.3d 887, 896 (8th Cir. 2015) (noting the
“well-established” rule that one panel of this court cannot overrule the decision of
another panel). Had the issue been presented to this panel as a matter of first
impression, however, I would follow the holdings of those courts that have considered
the issue and concluded the rule announced in Miller applies retroactively to § 2254
petitioners on collateral review.4
                        ______________________________

      4
        See, e.g., State v. Mantich, 842 N.W.2d 716 (Neb. 2014); State v. Ragland, 836
N.W.2d 107 (Iowa 2013); accord Songster v. Beard, 35 F. Supp. 3d 657 (E.D. Pa.
2014); United States v. Orsinger, No. CR-01-01072-05-PCT, 2014 WL 3427573
(D. Ariz. July 15, 2014); Alejandro v. United States, No. 13 CIV. 4364 CM, 2013 WL
4574066 (S.D.N.Y. Aug. 22, 2013); Hill v. Snyder, No. 10-14568, 2013 WL 364198
(E.D. Mich. Jan. 30, 2013); Casiano v. Comm’r of Corr., --- A.3d ----, 317 Conn. 52
(Conn. May 26, 2015); Falcon v. State, --- So.3d ----, 2015 WL 1239365 (Fla. Mar.
19, 2015); Aiken v. Byars, 765 S.E.2d 572 (S.C. 2014); State v. Mares, 335 P.3d 487
(Wyo. 2014); Petition of State, 103 A.3d 227 (N.H. 2014); People v. Davis, 6 N.E.3d
709 (Ill. 2014); Diatchenko v. Dist. Attorney for Suffolk Dist., 1 N.E.3d 270 (Mass.
2013); Jones v. State, 122 So.3d 698 (Miss. 2013).
                                           -6-
