Friday, October 11, 2013

The Cautionary Instruction: Third Circuit considers retroactivity of Miller v. Alabama

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
October 11, 2013

The U.S. Third Circuit Court of Appeals ruled last week that three men, two from Pennsylvania and one from New Jersey, sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced.

The men, convicted of murder in New Jersey, Philadelphia and Allegheny County and sentenced to life in prison without parole, argued that the high court's decision in Miller v. Alabama is retroactive.

The cases are before the court as successive petitions for habeas corpus. In order for the court to hear such petitions the petitioner must apply for certification. Certification will be granted if the petitioner makes a prima facie showing that the claim relies on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."

Prior to the Third Circuit ruling, the matter had limited review in Pennsylvania. Erie County Judge Shad Connelly ruled this summer in Commonwealth v. Antonio Howard that Miller is not retroactive.
"There is nothing in Miller which either explicitly or impliedly sets forth that it is to be applied retroactively," Connelly wrote. He added, "Neither the Pennsylvania Supreme Court nor Pennsylvania Legislature has recognized the Miller decision as retroactive."

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Miller decision applies retroactively to all prisoners serving mandatory life sentences regardless of when they were sentenced. In Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

In Mississippi the Supreme Court in Jones v. State, No. 2009-CT-02033-SCT ruled, “We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review.”

In Hill v. Snyder, 5:10-CV-14568-JCO-RSW, a U.S. District Court for the Eastern District of Michigan declared that all prisoners in Michigan who committed crimes as children and were sentenced to life now have a right to parole. The Court noted that it would find Miller retroactive on collateral review.

In People v. Williams, 2012 IL App (1st) 111145 an Illinois appellate court ruled, “We hold that the Supreme Court’s decision in Miller should be retroactively applied in this case because it is a rule that ‘requires the observance of those procedures that are implicit in the concept of ordered liberty.’”
However, in Geter v. State, No. 3D12-1736 a Florida appellate court held that Miller does not apply retroactively to cases which were final before the decision was issued.

The Pennsylvania Supreme Court is considering the retroactivity of Miller. More than a year has passed without a decision in the case of Commonwealth v. Ian Cunningham, No. 38 EAP 2012.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino.

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