McKinley KELLY, Applicant, v. Richard BROWN, Respondent, 851 F.3d 686

MANION, Circuit Judge. McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization 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, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, although set out as a term of years, they are in reality a life sentence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016). Because Kelly stated a possible claim to relief under Miller, we invited the State to respond, which it has done.

It argues that Kelly cannot state a claim to relief under Miller because 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 mitigation. In resolving Kelly’s direct appeal, the Supreme Court of Indiana explained that IC § 35-50-2-3 set a presumptive sentence of 55 years for murder and allowed a sentencing. court to increase or decrease the presumptive sentence by no more than ten years for special circumstances.

The court also was allowed to decide whether sentences for multiple convictions should run concurrently or consecutively. IC § 35-38-1-7.1. Kelly v. State, 719 N.E.2d 391, 394-95 (Ind. 1999). In other words, Kelly’s sentence could have been as low as 45 years (55 minus 10 for each count, with the two sentences running concurrently) or as high as 130 years (55 plus 10 for each count, with the two sentences running consecutively).

In Kelly’s case, counsel argued his age in mitigation, pressing hard on the fact that “[njobody is the same person when they’re 25 or 35 or 45 or whatever, that they were when they were 16,” and “[y]ou don’t know to what extent their conduct is the product of gross immaturity or whether there is something more missing.” (Sent’g Tr. at 1326-27.) The sentencing judge identified six aggravating circumstances:

(1) Kelly was on probation with the Juvenile Court at the time of the crimes;

(2) Kelly fired the first shot and his shots killed the first of three victims, setting the subsequent murders in motion;

(3) Kelly shot the victims at close range; (4) the murders evince Kelly’s lack of respect for human life; (5) there was a risk that Kelly would commit future crimes; and

(6) Kelly killed more than one person. It then considered two mitigating conditions:

(1) Kelly was sixteen years old at the time of the offense and seventeen years old at the time of sentencing; and

(2) Kelly had no adult or felony convictions. Kelly, 719 N.E.2d at 395. The Indiana Supreme Court affirmed Kelly’s sentence, holding that, “[djespite its long list of identified and recognized aggravating circumstances, the trial court imposed the presumptive, rather than an aggravated, sentence for each murder. The trial court properly outlined its reasoning for [Kelly’s] sentences, and adequately balanced the aggravating and mitigating circumstances with which it was presented.” Id. at 395. We agree with the State: Kelly was afforded all he was entitled to under Miller.

The sentencing court had considerable leeway in fashioning Kelly’s sentence and in fact considered his age when deciding on the appropriate term. Accordingly, we DENY authorization and DISMISS his application.