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Friday, March 17, 2017

Ind. Decisions - 7th Circuit decided one Indiana application yesterday [Updated]

In McKinley Kelly v. Richard Brown, an 8-page, 2-1 ruling involving an Indiana prisoner, Judge Manion writes:

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authoriza‐ tion to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110‐year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgom‐ ery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, alt‐ hough set out as a term of years, they are in reality a life sen‐ tence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).  

Because Kelly stated a possible claim to relief under Mil‐ ler, we invited the State to respond, which it has done. It ar‐ gues that Kelly cannot state a claim to relief under Miller be‐ cause his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mit‐ igation. * * *

We agree with the State: Kelly was afforded all he was entitled to under Miller. The sentencing court had considera‐ ble leeway in fashioning Kelly’s sentence and in fact consid‐ ered his age when deciding on the appropriate term. Accord‐ ingly, we DENY authorization and DISMISS his application.

[p. 5] POSNER, Circuit Judge, dissenting. When McKinley Kelly was 16 years old, he shot and killed two people. Tried and convicted in an Indiana state court of the two murders, he was sentenced to 110 years in prison. Even if, as the State says, Kelly will be eligible for parole when he is 70, he never‐ theless is effectively serving a life sentence. * * *

We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.

[Updated at 10:21 AM] Or, as Zoe Tillman of @Buzzfeed tweets:
7th Circuit: man sentenced to 110 years for murders he committed at age 16 can't challenge sentence; Posner dissents

Posted by Marcia Oddi on March 17, 2017 09:40 AM
Posted to Ind. (7th Cir.) Decisions