Third Circuit takes first step toward retroactivity for Miller

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, reported the Allentown Morning Call.

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 because the court applied it to a companion case in which the offender had used up his direct appeal rights.

The cases are before the courts as second or successive petitions for habeas corpus.  In order for the court to hear such petitions the petitioner must apply for certification.  Such certification will be granted if the petitioner make 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."

In these cases the court ruled that the petitioners made a prima facie showing that Miller is retroactive.

In Miller, the Supreme Court considered whether mandatory sentences of life without parole for juvenile killers violate the Eighth Amendment ban on cruel and unusual punishment.

Building on years of decisions paring back the death penalty first for mentally challenged killers, and then for juvenile killers, the court found that it is unconstitutional to imprison for life youngsters whose brains and impulse controls are not fully developed.

"It certainly is, in my opinion, a good sign," said Marc Bookman, who argued in favor of the three men.

State prosecutors in Pennsylvania opposed that argument, according to the Third Circuit decision, but federal prosecutors in New Jersey conceded that the Supreme Court intended its decision to apply retroactively.

The Pennsylvania Supreme Court is weighing the matter in the case of Ian Cunningham of Philadelphia, who was found guilty of shooting a man to death during a robbery in 1999, when he was a juvenile.

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