Wilson v. Neal

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

DONNELL WILSON,

Petitioner,

v. CAUSE NO. 3:22-CV-205-JD-MGG

RON NEAL,

Respondent.

OPINION AND ORDER

Donnell Wilson, by counsel, filed a habeas corpus petition to challenge his

conviction for murder and armed robbery under Case No. 45G01-1303-MR-4. On post-

conviction review, on November 17, 2020, the Indiana Supreme Court resentenced him

to one hundred years of incarceration.

FACTUAL BACKGROUND

In deciding this habeas petition, the court must presume the facts set forth by the

state courts are correct unless they are rebutted with clear and convincing evidence. 28

U.S.C. § 2254(e)(1). The Court of Appeals of Indiana summarized the evidence

presented at trial:

In March 2013, sixteen-year-old Donnell Wilson, his then-girlfriend, her

brother Jonte Crawford, and another of the Crawfords’ relatives were all

walking home from playing basketball in their hometown of Gary,

Indiana. When the group encountered fifteen-year-old Derrick Thompson,

Wilson and Jonte flashed the handguns they were carrying and began

harassing and intimidating Thompson, making references to the local Tre

7 gang. The pair then took Thompson's smartphone and headphones and

walked away.

A short time later, the group happened upon brothers Shaqwone Ham

and Charles Wood. Wilson and Jonte were members of several

interrelated gangs, including the Get Fresh Boys, Tre 7, and Glen Park

Affiliated, which were all at odds with the Bottom Side gang, to which

Ham and Wood belonged. Wilson had previously argued in person with

the brothers and their disputes had continued online with the brothers

threatening to fight Wilson. The groups initially exchanged greetings, but

Wilson and Jonte soon began to argue with the brothers. Wilson

exclaimed, “Oh, y'all looking for me? I’m in your hood.” Seconds later, he

fatally shot Wood in the head. When Ham tried to run, Jonte shot him

several times, killing him too. It is unclear from the record if Wilson also

shot at Ham. The brothers were unarmed.

Three hours before the murders, Wilson—who had previously made

several gang-related posts on Twitter—sent out a new tweet declaring

“Glen Park or get shot,” referring to the Gary neighborhood where he

lived. An hour after the murder, he tweeted “Chillen wit my bros

#[GetFreshBoys].” Jonte and Wilson were quickly arrested, and police

found Thompson’s possessions on Jonte. Wilson was charged with two

counts of murder, Class B felony armed robbery, and a Class D felony

conspiracy to commit criminal gang activity. The State also sought a

criminal gang enhancement.

While Wilson was lodged in the Lake County Jail awaiting trial, he told

his cellmate he killed Ham and Wood because they were affiliated with

the rival Bottom Side gang. He also explained how his gang affiliation had

led to Twitter disputes with members of the Bottom Side gang. Wilson,

along with some fellow inmates, later jumped this cellmate because he

was from the “other side of the bridge” dividing Gary. During this period,

Wilson was also recorded on a jailhouse video conference stating he

wanted to “smash” a member of a rival gang incarcerated in the same

facility and indicated a desire to continue participating in gang activity.

After a four-day trial beginning in June 2014, a jury found Wilson guilty

on all counts. The trial court sentenced Wilson to a term of sixty years for

the first murder conviction, fifty-five consecutive years for the second

murder conviction, six consecutive years for armed robbery, and two

years for criminal gang activity, with an additional sixty consecutive years

added under the criminal gang enhancement, for an aggregate sentence of

183 years. Wilson’s trial counsel did not retain any experts in preparation

for the sentencing hearing and did not present any witnesses at

sentencing. When handing down the sentence, the court cited several

aggravating factors, but found Wilson’s youth to be a mitigating factor.

ECF 7-19 at 2-3; Wilson v. State, 157 N.E.3d 1163, 1167–68 (Ind. 2020).

In the habeas petition, Wilson asserts that he was a juvenile at the time of his

offense and that his sentence amounts to a mandatory de facto sentence of life without

parole in violation of the Eighth Amendment as set forth in Miller v. Alabama, 567 U.S.

460 (2012).

TIMELINESS

The Warden argues that the petition is untimely. The statute of limitations for

habeas corpus cases is set forth in 28 U.S.C. § 2244(d), which provides:

(1) A 1-year period of limitation shall apply to an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State

court. The limitation period shall run from the latest of--

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was

initially recognized by the Supreme Court, if the right has

been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or

claims presented could have been discovered through the

exercise of due diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of

limitation under this subsection.

Here, the parties agree that the limitations period began to run in this case from

the final judgment date but disagree as to when the judgment became final. The

timeliness analysis is complicated by the atypical procedural history of the State court

proceedings. Specifically, on August 5, 2014, the Lake Superior Court entered judgment

in the criminal case. ECF 7-1 at 9. Wilson initiated a direct appeal, which culminated in

the Indiana Supreme Court’s denial of transfer on August 19, 2015. ECF 9-2. On August

11, 2016, Wilson initiated post-conviction proceedings, but the Lake Superior Court

denied relief, and he appealed. ECF 7-9 at 8-14. On November 17, 2020, the Indiana

Supreme Court issued an opinion, finding that Wilson’s appellate counsel was

ineffective for failing to challenge Wilson’s sentence under Indiana Appellate Rule 7(B).

ECF 7-19. In lieu of allowing Wilson to pursue this challenge on a second direct appeal,

the Indiana Supreme Court conducted an analysis under the rule and reduced Wilson’s

sentence from one hundred eighty-one years to one hundred years. Id. On January 22,

2021, the Indiana Supreme Court denied Wilson’s petition for rehearing. ECF 7-18. On

February 12, 2021, the Lake Superior Court issued a sentencing statement in accordance

with the Indiana Supreme Court’s opinion. ECF 7-9 at 15. On February 22, 2021, Wilson

filed a notice of appeal with respect to the sentencing statement, but, two days later, the

Indiana Court of Appeals dismissed the appeal with prejudice on the basis that

“decisions and rulings by the Indiana Supreme Court cannot be appealed in this court.”

ECF 7-21; ECF 7-22.

The Warden argues that judgment became final at the conclusion of direct review

when the time to petition for writ of certiorari expired on November 17, 2015, and that

the time to file a federal habeas petition expired on April 29, 2021. Wilson responds that

the sentence modification at the post-conviction stage amounted to a second final

judgment that reset the limitations period. According to the Warden, the post-

conviction sentence modification was not a new trial court sentencing proceeding and

so did not amount to a new final judgment that would reset the limitations.

For this proposition, the Warden relies on two cases. First, in Magwood v.

Patterson, 561 U.S. 320 (2010), the Supreme Court of the United States considered

whether Magwood’s habeas petition was a second or successive petition in violation of

28 U.S.C. § 2244(b). His conviction first became final in July 1983, but he was granted

habeas relief in federal court, and, in September 1986, the trial court reimposed the

death penalty after holding a new sentencing proceeding. Id. at 325- 26. Magwood then

filed a second federal habeas petition challenging his sentence, and the district court

found that the resentencing led to a new judgment, so the second habeas petition did

not violate Section 2244(b). Id. at 327-28. The Supreme Court agreed with the reasoning

of the district court. Id. at 331-32.

Next, in White v. U.S., 745 F.3d 834 (7th Cir. 2014), the Seventh Circuit considered

whether White’s sentence reduction under 18 U.S.C. § 3582(c) was a new judgment that

would reset the federal limitations period and that would not require prior judicial

authorization to pursue a second or successive petition. The Seventh Circuit found that

the sentence reduction did not amount to a new judgment, citing several material

differences. Id. at 836-37. The appellate court observed that the sentence reduction

procedure did not require the trial court “to receive evidence or reopen any issue

decided in the original sentencing.” Id. It observed that the court that reduced the

sentence did not “hold a hearing at which the defendant is present and a new sentence

in pronounced.”1 Id. “Instead the judge [took] as established the findings and

calculations that led to the sentence and change[d] only the revised Guideline, leaving

everything else the same. The penalty goes down, but the original judgment is not

declared invalid.” Id.

In resentencing Wilson under Ind. R. App. 7(B), the Indiana Supreme Court

described the scope of its review as follows:

Examining only the facts available on direct appeal, we conclude that a

downward adjustment to Wilson’s sentence is appropriate. We modify a

sentence only when we find that the sentence is inappropriate in light of

the nature of the offense and the character of the offender. The principal

role of Appellate Rule 7(B) review should be to attempt to leaven the

outliers. The point is not to achieve a perceived correct sentence. Rather,

appellate review and revision ultimately boils down to the appellate

court’s collective sense of what is appropriate. Whether a sentence should

be deemed inappropriate turns on our sense of the culpability of the

defendant, the severity of the crime, the damage done to others, and a

myriad of other factors that come to light in a given case. Because the

number of counts that can be charged and proved is virtually entirely at

the discretion of the prosecution, appellate review should focus on the

forest—the aggregate sentence—rather than the trees—consecutive or

concurrent, number of counts, or length of the sentence on any individual

count.

1 In the decision below, the district court described the sentence reduction proceedings as follows.

“The motion was unopposed by the government and disposed of with a short, one page order reducing

Petitioner’s sentence that was careful to note that ‘except as otherwise provided, all provisions of the

judgment dated 12/1/06 shall remain in effect.’” White v. U.S., 2013 WL 5323536, at *3 (C.D. Ill. 2013).

ECF 7-19 at 12. The court considered the nature of the offense, noting that it was

senseless, reprehensible, and related to ongoing criminal gang activity, but that Wilson

did not torture the victims or allow them to linger in pain. Id. at 12-13. The court

considered Wilson’s character, noting that his prior criminal history was not

particularly egregious but that his stated desire to continue gang activity during his

pretrial detention weighed against him. Id. at 13-14. The court further considered

Wilson’s youth at the time of the offense and compared his sentence to sentences in

similar offenses by similarly youthful offenders. Id. The Indiana Supreme Court

concluded, “[T]he main factor weighing in favor of a shorter sentence is Wilson’s age”

and reduced the sentence to one hundred years of incarceration. Id.

The Indiana Supreme Court’s resentencing order on post-conviction review lies

somewhere in between a new sentencing hearing described in Magwood and the

formulaic sentence reduction described in White. The Indiana Supreme Court did not

consider new evidence but did consider new arguments regarding Wilson’s youth and

the proportionality of his sentence when compared to similar cases. The Indiana

Supreme Court also appeared to independently consider sentencing factors rather than

merely deferring to the trial court’s assessment and assignment of weight. And, while

the Indiana Supreme Court did not hold a sentencing hearing in which Wilson was

present and a new sentence was announced, the parties had thoroughly briefed the

issues and engaged in oral argument, and the Indiana Supreme Court announced the

new sentence in a lengthy well-reasoned opinion -– a far cry from the summary

procedure in White that consisted of only an unopposed motion and a single-page

order.

The court further observes that the broad principal factors of nature of the

offense and the character of the offender appear to fully encompass the more specific

sentencing factors set forth by statute for trial courts’ consideration. See Ind. Code § 35-

38-1-7.1. Moreover, the Indiana Supreme Court has observed that appellate review

under Ind. R. App. 7(B) is “an exercise of judgment that is unlike the usual appellate

process, and is very similar to the trial court’s function” in assigning relative weight to

sentencing factors. Cardwell v. State, 895 N.E.2d 1219, 1223 (Ind. 2008).

Additionally, the Supreme Court of the United States has held that, “where a

state court grants a criminal defendant the right to file an out-of-time direct appeal

during state collateral review, but before the defendant has first sought federal habeas

relief, his judgment is not yet final for purposes of § 2244(d)(1)(A).” Jimenez v.

Quarterman, 555 U.S. 113, 121 (2009). Here, the Indiana Supreme Court expressly opted

to resolve the resentencing claim on post-conviction review as a substitute for allowing

Wilson to pursue the claim on a second direct appeal. Consequently, the court finds that

resentencing under Ind. R. App. 7(B) more closely resembles the new sentencing

hearing in Magwood or the out-of-time direct appeal in Jimenez than the sentence

reduction in White and that it thus serves as a new judgment to reset the federal

limitations period.

The parties also dispute when the limitations period began to run. The Warden

argues that the limitations period began to run on February 12, 2021, when the Lake

Superior Court issued the sentencing statement at the direction of the Indiana Supreme

Court. According to the Warden, the sentence became final on that date because Wilson

had no valid avenues for appealing it. Wilson argues that limitations period began to

run only after the Indiana Court of Appeals dismissed the appeal of the sentencing

statement with prejudice and the time for petitioning the Indiana Supreme Court for a

transfer expired in March 2021.

To the Warden’s point, the Indiana Court of Appeals dismissed the appeal with

prejudice by finding that it did not have subject matter jurisdiction to review an order of

the Indiana Supreme Court, and Wilson cannot challenge this this jurisdictional finding

on habeas review. See Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016) (“A federal court

cannot disagree with a state court’s resolution of an issue of state law.”). Further, given

that the Indiana Supreme Court’s order was precedential binding authority, it is unclear

how the lower courts could have meaningfully considered challenges to it even absent

jurisdictional concerns. See Dragon v. State, 774 N.E.2d 103, 107 (Ind. App. 2002) (“We

are bound by the decisions of our supreme court. Supreme court precedent is binding

upon us until it is changed either by that court or by legislative enactment.”). And the

Indiana Supreme Court conveyed its disinterest in reviewing its own order when it

denied Wilson’s petition for a rehearing. Accordingly, the record supports that Wilson

could not appeal the Indiana Supreme Court’s order through the State courts.

Nevertheless, there is a more typical avenue for appealing the decisions of a State

court of last resort – a petition for a writ of certiorari to the Supreme Court of the United

States. See U.S. Sup. Ct. R. 10. In Jimenez v. Quarterman, 555 U.S. 113, 119 (2009), the

Supreme Court of the United States held that the judgment becomes final for purposes

of Section 2244(d)(1)(A) when the time for filing a petition for a writ of certiorari

expires. The court sees no reason to deviate from that starting point, particularly given

that the Indiana Supreme Court in resentencing Wilson under Ind. R. App. 7(B) acted as

an appellate court on direct review.

Therefore, Wilson’s sentence became final for purposes of 28 U.S.C. §

2244(d)(1)(A) when the time for petitioning the Supreme Court of the United States for a

writ of certiorari expired on April 22, 2021. See U.S. Sup. Ct. R. 13(1) (petition for writs

of certiorari must filed within 90 days after entry of judgment); Jimenez, 555 U.S. at 119.

The limitations period expired one year later on April 22, 2022. Wilson filed the habeas

petition on March 15, 2022 (ECF 1), so the habeas petition is timely.

STANDARD OF REVIEW

Wilson argues that the Indiana Supreme Court never considered his Eighth

Amendment challenge to his sentence, reasoning that the Indiana Supreme Court

resentenced him to one hundred years of incarceration and summarily denied his

attempt to challenge the new sentence through a petition for a rehearing. The Warden

argues that the Indiana Supreme Court adjudicated Wilson’s Eighth Amendment

challenge to the 100-year sentence because it amounts to a less persuasive version of his

challenge to the 181-year sentence.

If a State court adjudicates a claim on the merits, federal courts may grant habeas

relief on that claim only if the petitioner demonstrates that the decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or that the decision “was based

on an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). These standards require substantial

deference to State court decisions and are “intentionally difficult to meet.” Woods v.

Donald, 575 U.S. 312, 316 (2015). “[C]learly established Federal law for purposes of §

2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court’s]

decisions.” Id. “And an unreasonable application of those holdings must be objectively

unreasonable, not merely wrong; even clear error will not suffice.” Id. “To satisfy this

high bar, a habeas petitioner is required to show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Id.

By contrast, “[w]hen no state court has squarely addressed the merits of a habeas

claim, . . . we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243,

under which we dispose of the matter as law and justice require.” Morales v. Johnson,

659 F.3d 588, 599 (7th Cir. 2011) “This is a more generous standard: we review the

petitioner’s constitutional claim with deference to the state court, but ultimately de

novo.” Id.

The court acknowledges that Wilson’s argument in the petition for a rehearing

and in the habeas petition against the 100-year sentence is different, if only on the

margins, than his argument against the 181-year sentence. For example, in his brief

directed to the Indiana Court of Appeals, Wilson observed that he could not be released

until age 107 and that the life expectancy for American males was age 76. ECF 7-11 at

24. In the response to the petition to transfer directed at the Indiana Supreme Court, he

argued that the Indiana Court of Appeals did not need to provide a detailed definition

of a de facto life sentence because a sentence that precludes release until age 107

“clearly is one.” ECF 7-16 at 12. However, the tone of Wilson’s argument shifted after

the resentencing – in the petition for rehearing, Wilson argued that the Indiana

Supreme Court neglected to consider “the grim reality of an offender’s and especially a

juvenile offender’s life, inside prison walls.” ECF 9-20 at 9. He now seeks to tether the

definition of a de facto life sentence to the average life expectancy for juveniles serving

life sentences. Id. at 10; ECF 1 at 10-14.

That said, the Seventh Circuit has never held that adjudication on the merits

requires the State court to consider the claim in exactly the same form and context that

it is presented in the habeas petition. Instead, the Seventh Circuit has found that State

courts have adjudicated the merits of a claim where the State court has considered the

habeas claim in a different context. For example, in Sturgeon v. Chandler, 552 F.3d 604,

610 (7th Cir. 2009), the petitioner argued that the State court resolved his claim that he

was entitled to a competency hearing on State law grounds and did not consider his

constitutional argument. The Seventh Circuit disagreed observing that the State court

had considered the constitutional argument for a competency hearing in resolving a

related ineffective assistance of appellate counsel claim. Id. at 611-12. The Seventh

Circuit reasoned that the State court could not have reached a different decision on the

standalone competency hearing claim and “the merits were effectively reached.” Id.

Similarly, in Murdock v. Dorethy, 846 F.3d 203, 208–09 (7th Cir. 2017), the Seventh

Circuit determined that the State courts’ decision on whether to suppress his pretrial

statements equated to an adjudication on the merits of his claim that trial counsel

provided ineffective assistance for failing to suppress the pretrial statements. And, in

Flint v. Carr, 10 F.4th 786, 796–97 (7th Cir. 2021), the Seventh Circuit determined that the

State court’s decision that trial counsel’s failure to object on double jeopardy grounds

did not cause prejudice equated to an adjudication on the merits on the underlying

double jeopardy claim.

Here, Wilson’s claim contains two essential components: (1) whether Miller

extends to de facto life sentences; and (2) whether his 100-year sentence qualifies as a de

facto life sentence. On post-conviction appeal, Wilson’s claim also contained two

essential components: (1) whether Miller extends to de facto life sentences; and (2)

whether his 181-year sentence qualified as a de facto life sentence. In resolving Wilson’s

claim on post-conviction appeal, the Indiana Supreme Court determined that Miller did

not extend to de facto life sentences. As in Sturgeon, logic dictates that the Indiana

Supreme Court could not have reached a different conclusion on a challenge to the 100-

year sentence in light of its resolution of the challenge to the 181-year sentence.

Consequently, the deferential standard of review under 28 U.S.C. § 2254(d) applies to

Wilson’s habeas claim.

DISCUSSION

Wilson asserts that he was a juvenile at the time of his offense and that his

sentence amounts to a mandatory de facto sentence of life without parole in violation of

the Eighth Amendment as set forth in Miller v. Alabama, 567 U.S. 460 (2012). In Miller,

the Supreme Court of the United States held that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on cruel and unusual punishments.” Id. at 465. The Supreme Court

reasoned that “the distinctive attributes of youth diminish the penological justifications

for imposing the harshest sentences on juvenile offenders, even when they commit

terrible crimes.” Id. at 472. The Supreme Court reasoned that mandatory penalty

schemes prevent the sentencing court from accounting for youth-related considerations

in assessing whether the punishment is proportionate. Id. at 474-78, The Supreme Court

did not foreclose life without possibility of parole for all juvenile offenders but required

sentencing courts “to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.” Id. at

480.

Notably, the term “de facto life sentence” appears nowhere in Miller, and Wilson

offers no definition. The term appears to arise from McKinley v. Butler, 809 F.3d 908, 911

(7th Cir. 2016), in which the Seventh Circuit considered a 100-year sentence in which the

petitioner had no possibility of early release under Illinois law.2 The Seventh Circuit

distinguished de jure life sentences from de facto life sentences, which are “sentences

2 The Seventh Circuit considered this claim in the context of a habeas petition challenging a State

conviction. Id. at 909. However, the Seventh Circuit did not defer to the decision of the State court under

the standard set forth in 28 U.S.C. § 2254(d)(1) because the petitioner had not presented the claim in State

court. Id. at 912. Therefore, while McKinley indicates that the Indiana Supreme Court’s decision here was

incorrect, it does not answer the question before this court as to whether the decision was unreasonable.

denominated in number of years yet highly likely to result in imprisonment for life.”3

Id. The Seventh Circuit found no logical distinction between de jure life sentences and

de facto life sentence and found that Miller extended to de facto life sentences. Id.

Nevertheless, the holding of Miller applied to only sentences of life without possibility

of parole, and the Supreme Court has not extended this holding to de facto life

sentences in subsequent related cases. See Jones v. Mississippi, 141 S.Ct. 1307 (2021);

Montgomery v. Louisiana, 577 U.S. 190 (2016). “Circuit precedent cannot refine or sharpen

a general principle of Supreme Court jurisprudence into a specific legal rule that [the

Supreme] Court has not announced.” Lopez v. Smith, 574 U.S. 1 (2014).

Against this backdrop, the Indiana Supreme Court considered Wilson’s

argument that Miller should extend to de facto life sentences. ECF 7-19 at 4-9. The court

began by outlining the line of cases in which the Supreme Court of the United States has

held that the Eighth Amendment affords juvenile criminals additional protections. Id. at

5-6 (citing Miller, 567 U.S. 460; Graham v. Fla., 560 U.S. 48 (2010) (no life without

possibility of parole sentences for non-homicide juvenile offenders); Roper v. Simmons,

543 U.S. 551, 575 (2005) (no death penalty for juvenile offenders)). The Indiana Supreme

Court observed that a split of authority had formed as to whether Miller extended to de

facto life sentences or aggregate sentences as opposed to the sentence for a particular

3 In other words, the Seventh Circuit uses the term “de jure” to refer to when a trial court literally

imposes a sentence of “life without possibility of parole” and uses “de facto” to refer to sentences that are

so long that they are the practical equivalent to life without possibility of parole.

charge, or whether Miller applied solely to de jure sentences of life without possibility of

parole. Id. at 6-7.

The Indiana Supreme Court observed that Graham and Miller limited their

holdings to life without possibility of parole and focused its analysis on that particular

type of sentence. Id. at 7. The court noted that the Supreme Court of the United States

has cautioned lower courts against expanding Eighth Amendment protections and

reasoned that “determining the reach of [the Eighth Amendment] is inherently a line

drawing exercise best left to the U.S. Supreme Court.” Id. at 8. The court further

observed that “determining what sentence constitutes a de facto life sentence would be

a task completely unmoored” from any guidance provided by the Supreme Court of the

United States and that any determination would amount to guesswork likely requiring

substantial and potentially unnecessary changes to Indiana’s sentencing scheme. Id. On

this basis, the Indiana Supreme Court sided with the courts finding that Miller applied

solely to de jure sentences of life without possibility of parole. Id.

Upon careful review of relevant caselaw, this court cannot find that the State

court contradicted or unreasonably applied clearly established law as determined by

the Supreme Court of the United States. To start, it is undisputed that no Supreme

Court case squarely addresses the issue of whether individualized consideration is

required for de facto life sentences for juvenile homicide offenders. Graham and Miller

are replete with language suggesting that life without possibility of parole is a

particularly harsh sentence for juveniles and limiting their holdings to that specific

sentence. For example, in Graham, the Supreme Court observed that “life without parole

sentences share some characteristics with death sentences that are shared by no other

sentences” and that “[l]ife without parole is an especially harsh punishment for a

juvenile.” 560 U.S. at 69-70. The Supreme Court further characterized the holding of

Graham as a “clear line” that “is necessary to prevent the possibility that life without

parole sentences will be imposed on juvenile nonhomicide offenders who are not

sufficiently culpable to merit that punishment.” Id. at 74; see also id. at 124. (Alito, J.,

dissenting) (“Nothing in the Court's opinion affects the imposition of a sentence to a

term of years without the possibility of parole.”). In Miller, the Supreme Court also

focused on the specific sentence of life without parole, referring to it as “the harshest

possible penalty for juveniles” and contrasting it with the lesser sentences of “a lifetime

prison term with possibility of parole or a lengthy term of years.” 567 U.S. at 489.

Even the courts that have extended this procedural requirement to de facto life

sentences appear to recognize the limits of these holdings, often reasoning that they

should so extend as a matter of logic. See e.g., State v. Ramos, 387 P.3d 650, 660 (Wash.

2017); State v. Zuber, 152 A.3d 197, 212 (N.J. 2017); State v. Moore, 76 N.E.3d 1127, 1140

(Ohio 2016); Henry v. State, 175 So. 3d 675, 679 (Fla. 2015); Bear Cloud v. State, 334 P.3d

132, 142 (Wyo. 2014). For example, in Moore v. Biter, 725 F.3d 1184, 1191 (9th Cir. 2013),

the Ninth Circuit reasoned:

Moore’s sentence of 254 years is materially indistinguishable from a life

sentence without parole because Moore will not be eligible for parole

within his lifetime. Moore’s sentence determines at the outset that Moore

never will be fit to reenter society. His sentence results in the same

consequences as Graham’s sentence [of life without possibility of parole].

Moore must live the remainder of his life in prison, knowing that he is

guaranteed to die in prison regardless of his remorse, reflection, or

growth.

To be sure, the Ninth Circuit’s reasoning has persuasive force, but the State court

considered this opposing view and rejected it based on the express language of Graham

and Miller. And, as noted by the State court, the Supreme Court must draw the line for

constitutional protections for juvenile offenders somewhere, and attempting to discern

where that line will be drawn based on prior decisions that do not squarely address the

issue necessarily amounts to guesswork. “[I]t is not an unreasonable application of

clearly established Federal law for a state court to decline to apply a specific legal rule

that has not been squarely established by this Court.” Knowles v. Mirzayance, 556 U.S.

111, 122 (2009); see also Lopez v. Smith, 574 U.S. 1, 6 (2014) (“We have before cautioned

the lower courts . . . against framing our precedents at such a high level of generality.”).

Further, numerous courts have also declined to extend Graham and Miller to de

facto sentences for the same reasons discussed by the Indiana Supreme Court. See e.g.,

U.S. v. Sparks, 941 F.3d 748, 754 (5th Cir. 2019); State v. Soto-Fong, 474 P.3d 34, 41 (Ariz.

2020); State v. Slocumb, 827 S.E.2d 148, 156 (S.C. 2019); Veal v. State, 810 S.E.2d 127, 129

(Ga. 2018); Lucero v. People, 394 P.3d 1128, 1134 (Colo. 2017); State v. Ali, 895 N.W.2d 237,

246 (Minn. 2017); Willbanks v. Dept. of Corrections, 522 S.W.3d 238, 246 (Mo. 2017);

Vasquez v. Cmmw., 781 S.E.2d 920, 925 (Va. 2016); State v. Brown, 118 So. 3d 332, 342 (La.

2013). The decisions of these courts demonstrate that “there are reasonable arguments

on both sides—which is all [the State] needs to prevail in this AEDPA case.” White v.

Woodall, 572 U.S. 415, 427 (2014); see also Thompson v. Battaglia, 458 F.3d 614, 619 (7th Cir.

2006) (“The variety in practice among the state courts and the various federal courts

shows, unfortunately for Thompson, that there is no standard clearly established by the

Supreme Court of the United States that is binding on all.”). Additionally, two other

federal circuits have found on habeas review that a State court’s determination that

Miller did not extend to de facto sentences was not unreasonable. Ali v. Roy, 950 F.3d

572, 576 (8th Cir. 2020); Bunch v. Smith, 685 F.3d 546, 553 (6th Cir. 2012); but see Budder v.

Addison, 851 F.3d 1047 (10th Cir. 2017) (finding on habeas review that a State court’s

determination that Miller did not extend to de facto sentences was unreasonable); Moore

v. Biter, 725 F.3d 1184 (9th Cir. 2013) (same). On this basis, Wilson cannot persuade the

court that the decision of the Indiana Supreme Court was “so lacking in justification

that there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.”

Wilson argues that his sentence should qualify as a de facto life sentence based

on the proposition that incarcerated individuals have lower average life spans than the

general population. He relies on statistics indicating that the average life span of an

incarcerated juveniles serving life sentences is 50.6 years. Because full consideration of

this argument is unnecessary to resolve this case, the court will simply address Wilson’s

characterization of the McKinley case as “nearly identical” to his own. ECF 1 at 12.

In McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016), in which the Seventh Circuit

extended Miller to de facto sentences, the petitioner received a 100-year sentence for

first-degree murder. Id. at 909. Under Illinois law, those convicted of first-degree

murder had no opportunity to earn credit time or to otherwise obtain early release. As a

result, the petitioner would be 116 years old on his release date. Id. The Seventh Circuit

found no need to define the parameters of what constitutes a de facto life sentence with

particularity, instead presenting this sentence as an obvious example and finding that it

was “--unless there is a radical increase, at present unforeseeable, in longevity within

the next 100 years—a de facto life sentence.” Id. at 911. The other federal circuits

extending Miller to de facto sentences did so in the context of even lengthier sentences

and similarly found it unnecessary to specifically define de facto sentences. See Budder v.

Addison, 851 F.3d 1047 (10th Cir. 2017) (eligible for parole at age 131); Moore v. Biter, 725

F.3d 1184 (9th Cir. 2013) (eligible for parole at age 144).

The Indiana Supreme Court also sentenced Wilson to 100 years of incarceration,

but this sentence is not “nearly identical” to the sentence in McKinley. Unlike the

petitioner in McKinley, Wilson has the opportunity to earn credit time, and he will be

sixty-six years old on his earliest possible release date. ECF 1 at 10-11. It is unclear

whether this qualifies as a de facto sentence, but it does not obviously qualify like the

sentences in McKinley, Budder, and Moore. Stated otherwise, it does not require

speculation about scientific development or medical breakthroughs to reasonably

believe that an individual might live to age sixty-six. While Wilson’s sentence is

substantial, it is materially distinguishable from the sentences that have been

recognized by federal circuits as de facto life sentences.

CERTIFICATE OF APPEALABILITY

Pursuant to Section 2254 Habeas Corpus Rule 11, the court must grant or deny a

certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §

2253(c), the petitioner must make a substantial showing of the denial of a constitutional

right by establishing “that a reasonable jurist could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). In light of Budder v. Addison, 851 F.3d 1047 (10th Cir.

2017), and Moore v. Biter, 725 F.3d 1184 (9th Cir. 2013), the court will grant a certificate of

appealability on the issue of whether the Indiana Supreme Court contradicted or

unreasonably applied clearly established law as determined by the Supreme Court of

the United States by determining that the Eighth Amendment does not require

individualized consideration to sentence juvenile homicide offenders to de facto life

sentences.

For these reasons, the court DENIES the habeas corpus petition (ECF 1);

GRANTS a certificate of appealability on the issue of whether the Indiana Supreme

Court contradicted or unreasonably applied clearly established law as determined by

the Supreme Court of the United States by determining that the Eighth Amendment

does not require individualized consideration to sentence juvenile homicide offenders

to de facto life sentences; and DIRECTS the clerk to enter judgment in favor of the

Respondent and against the Petitioner.

SO ORDERED on May 31, 2023

/s/JON E. DEGUILIO

CHIEF JUDGE

UNITED STATES DISTRICT COURT