Curtis Walker v. Dan Cromwell

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-2240

CURTIS L. WALKER,

Petitioner-Appellant,

v.

DAN CROMWELL,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:22-cv-311-wmc — William M. Conley, Judge.

____________________

ARGUED SEPTEMBER 17, 2024 — DECIDED JUNE 16, 2025

____________________

Before EASTERBROOK, HAMILTON, and MALDONADO,

Circuit Judges.

HAMILTON, Circuit Judge. Curtis Walker has served 30

years of his life sentence for a murder that he committed when

he was 17 years old. The state trial judge in Walker’s case ex-

ercised the discretion conferred upon him by Wisconsin law

to set Walker’s parole eligibility date for 2071. Walker will not

be eligible for release until he is 95 years old.

2 No. 23-2240

Almost two decades after Walker was sentenced, the

Supreme Court began deciding a series of cases involving

juvenile offenders who were sentenced to life without parole.

Relying on those decisions, Walker sought postconviction

relief in the Wisconsin state courts. After the state courts

denied relief, Walker filed a petition for federal habeas corpus

relief under 28 U.S.C. § 2254 arguing that he is serving a de

facto life-without-parole sentence that violates the Eighth

Amendment. He requests a “meaningful opportunity” to

demonstrate that he is no longer dangerous and that he is

capable of reintegrating into the community. Given the

deferential standard of review we apply under section

2254(d), we affirm the district court’s denial of federal habeas

relief. The Wisconsin Court of Appeals did not unreasonably

apply the Supreme Court’s case law, which offers mixed

signals on cases like Walker’s, where a juvenile homicide

offender is sentenced to life without parole as a matter of

judicial judgment and discretion.

I. Factual and Procedural Background

A. Walker’s Crime and Punishment

In 1994, Curtis Walker and an accomplice shot and killed

Milwaukee police officer William Robertson, an officer they

selected at random for murder. Walker was 17 years old at the

time of the crime. He was tried as an adult in a Wisconsin state

court and was convicted of first-degree intentional homicide

while using a dangerous weapon, as a party to the crime. Dur-

ing Walker’s sentencing hearing, the judge considered

Walker’s difficult childhood and capacity for rehabilitation

before concluding that a lengthy prison sentence was war-

ranted. The judge sentenced Walker to life in prison with a

parole eligibility date of 2071. Walker unsuccessfully

No. 23-2240 3

appealed his conviction, and the Wisconsin Supreme Court

denied review in February 2001.

B. Intervening Decisions on Juvenile Life Without Parole

That would have been the end of Walker’s legal story if not

for a series of intervening Supreme Court cases involving ju-

venile offenders who were sentenced to terms of life in prison

without parole. First, in Graham v. Florida, 560 U.S. 48, 74

(2010), the Court held that the Eighth Amendment prohibits a

State from sentencing juvenile offenders who did not commit

homicide to life without parole. It required a State to give ju-

venile offenders convicted of non-homicide crimes “some

meaningful opportunity to obtain release based on demon-

strated maturity and rehabilitation.” Id. at 75. Then, in Miller

v. Alabama, 567 U.S. 460, 479 (2012), the Court held that the

Eighth Amendment forbids mandatory life without parole for

all juvenile offenders, including those convicted of murder.

Graham and Miller were both grounded in the observation

that “children are constitutionally different from adults for

purposes of sentencing.” Id. at 471; Graham, 560 U.S. at 68

(similar). Because children are categorically less culpable than

adults and life without parole is a particularly harsh punish-

ment for juvenile offenders, see Miller, 567 U.S. at 477; Graham,

560 U.S. at 68–71, the Court imposed safeguards (a categorical

prohibition for non-homicide offenders and an individual-

ized sentencing process for homicide offenders) that had pre-

viously been confined to the context of capital punishment.

As significant as Graham and Miller were, however, neither

decision appeared to affect the validity of Walker’s sentence

since he had been convicted of homicide and sentenced under

Wisconsin’s discretionary sentencing scheme. That changed

4 No. 23-2240

when the Court decided Montgomery v. Louisiana, 577 U.S. 190

(2016). In Montgomery, the Court wrote that Miller had

adopted a substantive rule of constitutional law that would

apply retroactively on collateral review, such as habeas peti-

tions. Id. at 212. Montgomery required States to give any juve-

nile offender sentenced to mandatory life without parole an

“opportunity for release” in the form of the chance to be con-

sidered for parole. Id.

Although Miller had addressed only mandatory

sentencing schemes, Montgomery was written so that its

rationale for holding Miller retroactive could apply to all

juvenile homicide offenders sentenced to life without parole,

whether as a mandatory sentence or not. According to

Montgomery, Miller contained a “substantive holding that life

without parole is an excessive sentence for children whose

crimes reflect transient immaturity.” 577 U.S. at 210. “Even if

a court considers a child’s age before sentencing him or her to

a lifetime in prison, that sentence still violates the Eighth

Amendment for a child whose crime reflects ‘unfortunate yet

transient immaturity.’” Id. at 208 (internal quotation marks

omitted), quoting Miller, 567 U.S. at 479.

C. State Postconviction Proceedings and Jones v. Mississippi

Just three months after the Supreme Court decided

Montgomery, Walker sought resentencing in a postconviction

motion in the state trial court. The trial court denied Walker’s

motion on the ground that he was not serving a sentence

without possibility for parole triggering the protections of

Miller and Montgomery. Walker appealed to the Wisconsin

Court of Appeals in 2016. Due to two developments outside

of his control, Walker did not receive a decision in his appeal

until January 2022.

No. 23-2240 5

First, the Court of Appeals held Walker’s case in abeyance

pending the Wisconsin Supreme Court’s decision in a

different postconviction case presenting the issue whether

Miller and Montgomery apply to de facto life-without-parole

sentences. The Wisconsin Supreme Court then held that case

in abeyance after the Supreme Court granted certiorari in

Jones v. Mississippi, 593 U.S. 98 (2021), another case involving

a juvenile sentenced to life without parole. Like Walker, but

unlike the petitioners in Miller and Montgomery, the Jones

petitioner was sentenced to life without parole under a

discretionary sentencing law. Id. at 100–01.

Jones addressed the scope of Miller and Montgomery and,

in particular, whether “a sentencer who imposes a life-with-

out-parole sentence must also make a separate factual finding

that the defendant is permanently incorrigible, or at least pro-

vide an on-the-record sentencing explanation with an implicit

finding that the defendant is permanently incorrigible.” Id. at

101. The Court held in Jones that a sentencing judge need not

make an explicit or implicit factual finding that a juvenile

homicide offender is permanently incorrigible before impos-

ing life without parole. Id.

After Jones, the Wisconsin Court of Appeals finally ad-

dressed Walker’s appeal and affirmed the trial court’s denial

of postconviction relief. But instead of adopting the trial

court’s reasoning, the appellate court resolved Walker’s claim

under Jones. The appellate court assumed that Walker’s sen-

tence amounted to life without parole as a practical matter.

The court held, however, that the sentence did not violate the

Eighth Amendment because the sentencing judge had consid-

ered Walker’s “youth and its attendant circumstances as a

mitigating factor” before imposing life without parole. The

6 No. 23-2240

Wisconsin Supreme Court then denied Walker’s petition for

review.

D. Federal Habeas Proceedings

Having exhausted his state-court remedies, Walker filed a

petition for federal habeas review in the Western District of

Wisconsin. He asserted that his sentencing judge

“acknowledged, on the record, that he believed [him] to be

capable of reform,” and according to Walker, therefore could

not constitutionally sentence him to de facto life without

parole, which precludes “the possibility of any meaningful

opportunity for parole or release.” He also asserted that his

claim was timely because it was based on the Supreme Court’s

decisions in Miller and Montgomery.

The district court dismissed Walker’s petition under Rule

4 of the Rules Governing Section 2254 Cases in the United

States District Courts. It gave two independent reasons for

dismissal. First, the court held that Walker’s habeas petition

was untimely under the Antiterrorism and Effective Death

Penalty Act’s (AEDPA) one-year limitations period. 28 U.S.C.

§ 2244(d)(1). AEDPA’s limitations period is measured from

the latest of four events described in the statute. The relevant

event for Walker’s petition is “the date on which the constitu-

tional 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.” § 2244(d)(1)(C).

The district court concluded that the one-year limitations

period for Walker’s claim began on June 25, 2012, the day

Miller was decided. “Unfortunately, if understandably,”

Walker did not file his motion for postconviction relief in state

No. 23-2240 7

court until after the Supreme Court decided Montgomery four

years later. On that reasoning, his motion was late by nearly

three years. The court also held that Walker could not meet

his burden of showing on the merits that he was entitled to

federal habeas relief. The district court concluded that,

although “the sentencing judge found Walker to be capable of

reform,” the Wisconsin Court of Appeals did not

unreasonably apply federal law in determining that Walker’s

individualized sentencing process satisfied the Eighth

Amendment. Noting the “particularly harsh result” of

denying relief in Walker’s case, the district court granted him

a certificate of appealability.

Walker appealed, and we concluded that his appeal would

benefit from counseled briefing and oral argument. We re-

cruited counsel to brief the timeliness and merits of Walker’s

Eighth Amendment claim under AEDPA. 1

II. Timeliness of Walker’s Petition

After considering both parties’ arguments on the timeli-

ness of Walker’s habeas petition, we decline to decide his pe-

tition on timeliness grounds. Walker argues—and Wisconsin

does not dispute—that the district court erred by finding his

petition untimely without giving either party notice or an op-

portunity to present arguments. We agree. The Supreme

Court has held that district courts may consider sua sponte

the timeliness of a habeas petition but only after giving both

parties “fair notice and an opportunity to present their posi-

tions.” Day v. McDonough, 547 U.S. 198, 210 & n.11 (2006) (“A

1 Attorneys Jeffrey R. Johnson, S. Matthew Krsacok, Nicholas A.

Campbell, Riley W. Walters, and the law firm of Jones Day have the thanks

of this court for their able representation and assistance to the court.

8 No. 23-2240

district court’s discretion is confined within these limits.”).

Although Day involved a habeas petition that had survived

the initial screening stage, it is equally applicable to petitions

dismissed under Rule 4. See id. at 207 & n.6 (courts are “never

(or, at least, hardly ever) … positioned to raise AEDPA’s time

bar sua sponte” at Rule 4 stage); Shelton v. United States, 800

F.3d 292, 294–95 (6th Cir. 2015) (applying Day’s due process

requirements at the Rule 4 screening stage; vacating judgment

and remanding for further proceedings); Wentzell v. Neven,

674 F.3d 1124, 1126, 1128 (9th Cir. 2012) (same; reversing judg-

ment and remanding for further proceedings).

On appeal, both sides have briefed the timeliness issue.

But because the district court found Walker’s petition un-

timely without notifying him, Walker never had the chance to

argue that an exception to the statute of limitations applies.

The existing record is insufficient to assess whether he has a

viable argument for equitable tolling, so affirming the district

court’s dismissal on timeliness grounds would be premature.

See In re Rosado, 7 F.4th 152, 157 (7th Cir. 2021) (“Tolling deci-

sions are often hard and fact bound, best left to district courts

in the first instance.”); Arreola-Castillo v. United States, 889 F.3d

378, 383–84 (7th Cir. 2018) (declining to consider sua sponte

the government’s forfeited timeliness argument where the pe-

titioner “might have submitted additional evidence” if the is-

sue had been raised in district court).

We also think it is more prudent to resolve Walker’s ha-

beas petition on the merits of his Eighth Amendment claim

under AEDPA because the timeliness and the merits issues

are tangled up together. In Cross v. United States, we cautioned

against “improperly read[ing] a merits analysis into the limi-

tations period.” 892 F.3d 288, 293 (7th Cir. 2018). In Walker’s

No. 23-2240 9

case, though, we do not see any way to disentangle the time-

liness of his petition from the merits of his claim. The limita-

tions period for Walker’s habeas petition began to run on the

date that the Court announced his asserted right. 28 U.S.C.

§ 2244(d)(1)(C); Dodd v. United States, 545 U.S. 353, 357 (2005);

Johnson v. Robert, 431 F.3d 992, 992 (7th Cir. 2005). Walker’s

claim is timely only if Montgomery, rather than Miller, an-

nounced his asserted right. 2

We cannot decide when the Supreme Court announced

Walker’s asserted right without determining the scope of both

Miller and Montgomery—the issue at the core of Walker’s

Eighth Amendment claim—and as shown below, that is not

an easy task. We think it is best to undertake that analysis un-

der section 2254’s “contrary to” or “unreasonable applica-

tion” standard for the merits rather than opining on the con-

stitutional issue as part of the timeliness inquiry.

III. Walker’s Eighth Amendment Claim

A. The AEDPA Standard of Review

We review de novo the district court’s denial of habeas re-

lief. Rhodes v. Dittmann, 903 F.3d 646, 655 (7th Cir. 2018). Be-

cause the Wisconsin Court of Appeals rejected Walker’s

Eighth Amendment claim on the merits, the deferential

2 Dodd held that the one-year limitations period in 28 U.S.C. § 2255

begins to run on the date that the Court announces a new right, not the

date that the Court makes the right retroactive. 545 U.S. 353, 357 (2005).

While Dodd involved a section 2255 habeas claim, we have extended its

holding to the materially identical language in section 2244(d)(1)(C). John-

son v. Robert, 431 F.3d 992, 992 (7th Cir. 2005). The district court granted a

certificate of appealability based in part on the possibility that we would

reconsider our holding in Johnson that Dodd’s rationale applies to state

prisoners. We see no reason to reconsider Johnson at this time.

10 No. 23-2240

standards of 28 U.S.C. § 2254(d) govern our review. Id. Walker

does not challenge the state courts’ fact-finding, so he cannot

win a writ of habeas corpus unless the state court’s decision

“was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Su-

preme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Walker seeks relief under both prongs of section

2254(d)(1). A state court’s decision is “contrary to” clearly es-

tablished law “if it either applies a rule that contradicts a prior

Supreme Court case, or if it reaches a different result than the

Supreme Court has reached on a materially indistinguishable

set of facts.” Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. 2012), cit-

ing Williams v. Taylor, 529 U.S. 362, 405 (2000) (majority opin-

ion of O’Connor, J.). A decision is an “unreasonable applica-

tion” of clearly established law “‘if the state court identifies

the correct governing legal principle’ but ‘unreasonably ap-

plies that principle to the facts of the petitioner’s case.’”

Rhodes, 903 F.3d at 655, quoting Wiggins v. Smith, 539 U.S. 510,

520 (2003). The standard is intended to be difficult to meet.

Harrington v. Richter, 562 U.S. 86, 102 (2011). A federal court

may grant relief only if the state court’s decision “was unrea-

sonably wrong under an objective standard.” Dassey v.

Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc), citing

Williams, 529 U.S. at 410–11 (majority opinion of O’Connor, J.).

To obtain relief under either prong of section 2254(d)(1), a

petitioner must identify “clearly established federal law, as

determined by the Supreme Court of the United States,” that

applies to his claim. Under AEDPA, clearly established fed-

eral law “refers to the holdings … of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.”

Garcia v. Hepp, 65 F.4th 945, 949 (7th Cir. 2023), quoting

No. 23-2240 11

Williams, 529 U.S. at 412 (majority opinion of O’Connor, J.).

The lower federal courts have an independent obligation to

determine for themselves the relevant “clearly established

Federal law.” Andrew v. White, 604 U.S. —, —, 145 S. Ct. 75, 82

(2025). Particularly relevant here, when we try to determine

what constitutes clearly established law, we look beyond “the

four corners of a rule announced in a single case. We consider

all cases that ‘provide a body of clearly established law’ gov-

erning the issue.” Garcia, 65 F.4th at 949, quoting Sims v. Hy-

atte, 914 F.3d 1078, 1089 (7th Cir. 2019).

B. Walker’s Eighth Amendment Claim

Walker and Wisconsin agree that Walker’s claim is

governed by Miller v. Alabama, 567 U.S. 460 (2012),

Montgomery v. Louisiana, 577 U.S. 190 (2016), and Jones v.

Mississippi, 593 U.S. 98 (2021). Although the Supreme Court

has yet to extend Miller, Montgomery, and Jones to a sentence

with the possibility of parole, the Wisconsin Court of Appeals

assumed that Walker’s sentence with parole eligibility coming

first at age 95 is “a de facto life-without-parole sentence that

implicates Miller and Montgomery.” The state court read Jones

to hold that the Eighth Amendment requires only an

individualized sentencing process in a case involving a

juvenile homicide offender sentenced to life without parole. It

concluded that Walker’s de facto life-without-parole sentence

satisfies the Eighth Amendment because the sentencing judge

considered his youth and had discretion to impose a less

severe penalty. For purposes of this appeal, we will follow the

state court’s lead in treating Walker’s sentence as de facto life

without parole and thus subject to Miller, Montgomery, and

Jones. Cf. Wilson v. Neal, 108 F.4th 938, 949–50 (7th Cir. 2024)

(affirming denial of habeas relief where state courts held that

12 No. 23-2240

Miller did not apply to long term of years that arguably

amounted to de facto life without parole).

Walker contends that Montgomery, not Jones, establishes

the legal principle that governs his Eighth Amendment claim.

His argument relies on Montgomery’s rationale for holding

that Miller adopted a substantive rule retroactively applicable

on collateral review. A new rule of constitutional law is sub-

stantive if it prohibits “a certain category of punishment for a

class of defendants because of their status or offense.” Mont-

gomery, 577 U.S. at 198, first quoting Penry v. Lynaugh, 492 U.S.

302, 330 (1989), and then citing Teague v. Lane, 489 U.S. 288,

307 (1989) (plurality opinion of O’Connor, J.). “Substantive

rules, then, set forth categorical constitutional guarantees that

place certain criminal laws and punishments altogether be-

yond the State’s power to impose.” Id. at 201.

Montgomery explained that Miller’s rule is substantive be-

cause it “did more than require a sentencer to consider a ju-

venile offender’s youth before imposing life without parole.”

Id. at 208. Miller “bar[red] life without parole … for all but the

rarest of juvenile offenders, those whose crimes reflect perma-

nent incorrigibility.” Id. at 209. As a result, the Court declared

in Montgomery, “all other children imprisoned under a dispro-

portionate sentence have … suffered the deprivation of a sub-

stantive right.” Id.

Walker reads this discussion to impose a categorical pro-

hibition on sentencing corrigible juvenile offenders to life

without parole. Applying that rule to the facts of his case, he

argues that the judge who sentenced him affirmatively found

that he was capable of change and therefore could not consti-

tutionally sentence him to life without parole. In Walker’s

view, that affirmative finding distinguishes his case from

No. 23-2240 13

Jones, in which the petitioner’s sentencer did not make a fac-

tual finding of corrigibility. He argues that the state court’s

decision was contrary to clearly established federal law inso-

far as it concluded that his case was governed by Jones, rather

than by Miller and Montgomery, and an unreasonable applica-

tion of federal law because it relied on an erroneously broad

reading of Jones.

Walker has solid grounds for arguing that Montgomery es-

tablished a substantive, categorical rule that life without pa-

role is an unconstitutionally disproportionate penalty for ju-

venile offenders capable of change. Montgomery characterized

that principle as a “substantive holding” and relied on it to

hold that Miller adopted a substantive rule of constitutional

law applicable on collateral review. 577 U.S. at 210. And the

quoted language from Montgomery certainly points in the di-

rection Walker argues.

Under the AEDPA, however, a state-court decision can

withstand habeas review even when the petitioner presents a

“strong case for relief.” Harrington, 562 U.S. at 102. Relief is

available only if the state court’s decision is “so lacking in jus-

tification that there was an error well understood and com-

prehended in existing law beyond any possibility for fair-

minded disagreement.” Id. at 103. No such error occurred

here because the Court’s precedents, when read together,

simply do not clearly establish such a categorical prohibition

against sentencing corrigible juveniles to life without parole,

at least when the sentencing judge has discretion not to im-

pose so severe a sentence.

First, Miller expressly declared that it was not adopting a

categorical prohibition on sentencing any subset of juvenile

offenders to life without parole:

14 No. 23-2240

Our decision does not categorically bar a pen-

alty for a class of offenders or type of crime—as,

for example, we did in Roper or Graham. Instead,

it mandates only that a sentencer follow a cer-

tain process—considering an offender’s youth

and attendant characteristics—before imposing

a particular penalty.

567 U.S. at 483. Then, Montgomery seemed to contradict that

quoted language in Miller when it held that Miller was retro-

actively applicable precisely because it “did bar life without

parole … for all but the rarest of juvenile offenders, those

whose crimes reflect permanent incorrigibility.” 577 U.S. at

209. Finally, Jones expressed a substantially narrower reading

of both Miller and Montgomery that is in significant tension

with Montgomery’s language, logic, and retroactivity holding.

Both Montgomery and Jones drew dissents arguing that the

Court had effectively rewritten its prior decisions. Montgom-

ery, 577 U.S. at 225 (Scalia, J., dissenting) (“It is plain as day

that the majority is not applying Miller, but rewriting it.”);

Jones, 593 U.S. at 143 (Sotomayor, J., dissenting) (“Instead of

addressing [the traditional stare decisis] factors, the Court

simply rewrites Miller and Montgomery to say what the Court

now wishes they had said, and then denies that it has done

any such thing.”); see also Jones, 593 U.S. at 127 (Thomas, J.,

concurring in the judgment) (majority opinion “[o]verrule[d]

Montgomery in substance but not in name”).

Where the Supreme Court’s relevant precedents “have not

been a model of clarity,” the Court teaches lower federal

courts to be cautious about what its case law has “clearly

established” for purposes of section 2254(d). See Lockyer v.

Andrade, 538 U.S. 63, 72 (2003) (reversing grant of relief where

No. 23-2240 15

Eighth Amendment principle of “gross disproportionality”

was not defined by precise contours and applied only in

“exceedingly rare” and “extreme” cases). “A federal court

may not overrule a state court for simply holding a view

different from its own, when the precedent from [the] Court

is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17

(2003). With respect, we believe the shifting rationales of

Miller, Montgomery, and Jones have left unsettled whether the

Eighth Amendment categorically forbids life without parole

for corrigible juvenile homicide offenders. We explain next

why Montgomery is itself ambiguous about whether it

adopted such a categorical rule. Then we explain why Jones

confirms that reasonable jurists could disagree about the

scope of Montgomery.

1. Discerning Montgomery’s Reach

Montgomery would have been an unusual vehicle for the

Court to take the significant step of adopting a categorical

prohibition on sentencing corrigible juvenile homicide of-

fenders to life without parole. The case set out to answer a

narrow question: whether Miller adopted a substantive rule

retroactively applicable on collateral appeal. And while Miller

clearly understood the distinction between corrigible and in-

corrigible youths to be important, see 567 U.S. at 479–80 (sug-

gesting that only incorrigible juvenile offenders should be

sentenced to life without parole), the Miller Court said it was

not categorically prohibiting the State from sentencing any

group of juvenile offenders to life without parole.

Miller limited its analysis to the constitutional problems

with mandatory sentencing schemes. Id. at 474 (“But the man-

datory penalty schemes at issue here prevent the sentencer

from taking account of these central considerations.”). Miller

16 No. 23-2240

drew on the Court’s cases categorically prohibiting certain

penalties for juvenile offenders for their discussion of chil-

dren’s “distinctive (and transitory) mental traits and environ-

mental vulnerabilities,” none of which are crime-specific. Id.

at 472–74 (discussing Roper v. Simmons, 543 U.S. 551 (2005),

and Graham v. Florida, 560 U.S. 48 (2010)). But the Miller Court

took care to distinguish its holding from the categorical rules

adopted in those cases, in language we quoted above:

Our decision does not categorically bar a pen-

alty for a class of offenders or type of crime—as,

for example, we did in Roper or Graham. Instead,

it mandates only that a sentencer follow a cer-

tain process—considering an offender's youth

and attendant characteristics—before imposing

a particular penalty.

Id. at 483. And because Miller’s holding requiring individual-

ized sentencing procedures was “sufficient to decide” the

cases before it, the Court expressly declined to consider the

petitioners’ alternative argument “that the Eighth Amend-

ment requires a categorical bar on life without parole for ju-

veniles.” Id. at 479.

Although we cannot ignore the breadth of Montgomery’s

reasoning, we also have to read it in the context of the narrow

question and specific facts presented in Montgomery. When

the Court determines whether a constitutional rule applies

retroactively, its retroactivity analysis does not ordinarily

change the scope of the constitutional rule at issue. A

categorical prohibition would have affected the validity of

discretionary life-without-parole sentences in addition to the

mandatory sentences invalidated by Miller. See Montgomery,

577 U.S. at 202 (“Nor could the use of flawless sentencing

No. 23-2240 17

procedures legitimate a punishment where the Constitution

immunizes the defendant from the sentence imposed.”).

But to decide the case before it in Montgomery, the Court

did not need to extend Miller beyond mandatory sentencing

schemes. The Montgomery petitioner was sentenced to life

without parole under a mandatory sentencing scheme and

therefore fell within the rule established by Miller. Id. at 194.

With that context in mind, a reasonable jurist could conclude

that Montgomery’s retroactivity analysis did not go any fur-

ther than making Miller’s prohibition on mandatory life with-

out parole retroactively applicable. See, e.g., United States v.

Grant, 9 F.4th 186, 196 (3d Cir. 2021) (en banc) (“any language

in Montgomery pertaining to discretionary LWOP sentencing

regimes is not binding”).

Two other features of Montgomery reinforce that conclu-

sion. First, despite Montgomery’s broad statements about what

Miller and the Eighth Amendment prohibit, it did not engage

in the mode of analysis that the Court usually employs when

it considers whether to adopt a categorical substantive rule.

In its Eighth Amendment cases adopting categorical rules, the

Court first considers “‘objective indicia of society’s standards,

as expressed in legislative enactments and state practice,’ to

determine whether there is a national consensus against the

sentencing practice at issue.” Graham, 560 U.S. at 61 (applying

that approach to life without parole for juvenile offenders

who did not commit homicide), quoting Roper, 543 U.S. at 563.

If Montgomery had adopted a categorical rule, we would ex-

pect it to have considered state sentencing practices or at least

to have acknowledged that it was departing from the Court’s

usual approach. But Montgomery never mentioned the “objec-

tive indicia of society’s standards” inquiry. Regardless, the

18 No. 23-2240

sentencing practice at issue in Montgomery was mandatory life

without parole for juvenile homicide offenders, 577 U.S. at

193–94, and Miller’s discussion was also limited to mandatory

sentences, 567 U.S. at 482–87.

Further, Montgomery’s discussion of the practical conse-

quences of its holding for the State and juvenile offenders con-

spicuously lacks any mention of discretionary life-without-

parole sentences. Montgomery defined a “Miller violation” as

a “case where a juvenile offender received mandatory life

without parole.” 577 U.S. at 212. It explained that “prisoners

like Montgomery”—i.e., those sentenced to mandatory life

without parole—“must be given the opportunity to show

their crime did not reflect irreparable corruption.” Id. at 213.

Montgomery is silent on how the logic of its retroactivity anal-

ysis applies in a case involving a discretionary life-without-

parole sentence.

In sum, the question presented in Montgomery was limited

to the retroactivity of Miller’s prohibition on mandatory life

without parole for juvenile homicide offenders. Montgomery

did not employ the Court’s ordinary approach to adopting

categorical rules, and it framed the practical implications of

its decision in terms that apply only to mandatory sentencing

schemes. At the same time, we recognize that Montgomery

spoke forcefully about what the Eighth Amendment requires

in any case involving a juvenile homicide offender. So while

these features of Montgomery do not compel a narrow reading

of its holding, we must recognize when applying section

2254(d) that they do allow a reasonable jurist looking at the

No. 23-2240 19

whole body of relevant case law to read Montgomery nar-

rowly, as limited to mandatory sentencing schemes. 3

2. Jones’ Narrow Reading of Miller and Montgomery

Jones resolves any remaining uncertainty about whether

reasonable jurists could disagree over whether the Court’s

precedents establish a categorical prohibition against sentenc-

ing corrigible minors to life without parole. Jones is the Court’s

first (and so far only) case applying Miller and Montgomery to

a discretionary life-without-parole sentence. It presented the

Court with the opportunity to confirm that Montgomery’s ex-

pansive rationale established a categorical prohibition that

applies to both mandatory and discretionary sentences. The

Jones Court did not take that step.

Instead, Jones held that the petitioner’s resentencing com-

plied with Miller and Montgomery “because the sentence was

not mandatory and the trial judge had discretion to impose a

lesser punishment in light of Jones’s youth.” 593 U.S. at 120.

To reach that conclusion, Jones endorsed a narrow

3 Even before Jones, state and circuit courts split on how to read Mont-

gomery. Some courts gave Montgomery the expansive meaning that Walker

attributes to it. E.g., Malvo v. Mathena, 893 F.3d 265, 274 (4th Cir. 2018);

United States v. Briones, 929 F.3d 1057, 1064 (9th Cir. 2019); Commonwealth

v. Batts, 163 A.3d 410, 452 (Pa. 2017). Others concluded that Miller was sat-

isfied if the sentencer had the ability to choose a sentence other than life

without parole. E.g., United States v. Sparks, 941 F.3d 748, 754 (5th Cir.

2019); People v. Skinner, 917 N.W.2d 292, 312–14 (Mich. 2018). These pre-

Jones cases do not control Walker’s claim, but they are “indicative of a lack

of clarity in the Supreme Court’s jurisprudence.” Hall v. Zenk, 692 F.3d 793,

799 (7th Cir. 2012). To be clear, however, we have reached an independent

judgment as to what is “clearly established Federal law” for purposes of

section 2254(d), as the Supreme Court instructed in Andrew v. White, 604

U.S. at —, 145 S. Ct. at 82.

20 No. 23-2240

interpretation of both Miller and Montgomery. Jones character-

ized Miller as requiring “only that a sentencer follow a certain

process” before imposing life without parole on a juvenile of-

fender. Id. at 108, quoting Miller, 567 U.S. at 483. The Court

rejected the petitioner’s analogy to the Court’s categorical

prohibition cases “where the Court has recognized certain el-

igibility criteria, such as sanity or a lack of intellectual disabil-

ity, that must be met before an offender can be sentenced to

death.” Id. at 107, citing first Ford v. Wainwright, 477 U.S. 399

(1986), and then Atkins v. Virginia, 536 U.S. 304 (2002). Jones

located Miller instead in the line of cases requiring “the indi-

vidualized consideration of mitigating circumstances in capi-

tal cases.” Id. at 108. Jones then cast (or perhaps recast) Mont-

gomery as holding only that Miller’s prohibition on mandatory

sentencing schemes applies retroactively on collateral review.

It emphasized that the Court had not granted certiorari in

Montgomery to “consider whether the rule announced in Mil-

ler should be expanded.” Id. at 111.

Jones’ narrow interpretation of Miller revived arguments

about Miller’s limits that Montgomery had expressly rejected.

See Montgomery, 577 U.S. at 208–11 (explaining that the “pro-

cedural component” of Miller’s holding “does not replace but

rather gives effect to Miller’s substantive holding that life

without parole is an excessive sentence for children whose

crimes reflect transient immaturity”). And Jones’ characteriza-

tion of Montgomery failed to address much of Montgomery’s

reasoning. Although Jones did not explicitly address or reject

Montgomery’s articulation of Miller’s substantive holding, its

silence on the central premise of Montgomery’s analysis speaks

volumes, at least when we are trying to apply section

2254(d)(1) and to determine the range of decisions open to

No. 23-2240 21

fair-minded jurists trying to apply the Court’s decisions in

this field.

Jones’ holding that the Eighth Amendment does not re-

quire an explicit or implicit finding of permanent incorrigibil-

ity also signaled a retreat from Montgomery’s reasoning. As

Justice Thomas explained in his opinion concurring in the

judgment:

If Montgomery is correct about the existence of a

concrete class of offenders who—as a matter of

fundamental constitutional law—are categori-

cally exempt from a sentence of life without pa-

role, then there must be a determination as to

whether Jones falls within that protected class.

Otherwise, the “line” Miller ostensibly “drew …

between children whose crimes reflect transient

immaturity and those rare children whose

crimes reflect irreparable corruption” is more

fanciful than real.

Id. at 126 (Thomas, J., concurring in the judgment), quoting

Montgomery, 577 U.S. at 209. Indeed, the Court has generally

required factual findings to determine whether a prisoner is

within the class of people eligible for a particular penalty. See

id., citing first Moore v. Texas, 586 U.S. 133, 142 (2019) (per cu-

riam), and then Madison v. Alabama, 586 U.S. 265, 273, 282

(2019); e.g., Panetti v. Quarterman, 551 U.S. 930, 949 (2007)

(“Once a prisoner seeking a stay of execution has made ‘a sub-

stantial threshold showing of insanity,’ the protection af-

forded by procedural due process includes a ‘fair hearing’ in

accord with fundamental fairness.” (quoting Ford, 477 U.S. at

426, 424 (Powell, J., concurring in part and concurring in the

judgment))). Montgomery acknowledged that Miller had not

22 No. 23-2240

imposed a formal fact-finding requirement, but Montgomery

was equally explicit that corrigible offenders sentenced to life

without parole had been deprived of a substantive right. 577

U.S. at 209. Following Montgomery, some States adopted a va-

riety of mechanisms to enforce the line that Montgomery had

drawn between corrigible and incorrigible offenders. See

Jones, 593 U.S. at 134–35 (Sotomayor, J., dissenting).

Jones concluded, though, that the states are not under any

constitutional obligation to distinguish between corrigible

and incorrigible youths. “In a case involving an individual

who was under 18 when he or she committed a homicide, a

State’s discretionary sentencing system is both constitution-

ally necessary and constitutionally sufficient.” Id. at 105. That

sentence alone makes it difficult if not impossible to find that

a state court has applied Supreme Court precedent unreason-

ably by upholding a juvenile sentence of life without parole

imposed under a discretionary standard. 4

4 In the absence of Supreme Court guidance on what qualifies as a

corrigibility finding, AEDPA deference is warranted for the additional

reason that reasonable jurists could disagree about whether Walker’s sen-

tencing judge actually found him capable of change. The line between a

conscientious discussion of mitigating factors and a finding of corrigibility

may be difficult to draw. The transcript of Walker’s sentencing hearing

reveals that the sentencing judge acknowledged Walker’s difficult child-

hood and expressed sympathy for the limited array of choices that he

faced. The judge also expressed “hope” that Walker would be able to de-

velop healthy relationships and grow as a person while he was incarcer-

ated. The district court here treated these remarks as amounting to a find-

ing of corrigibility, but reasonable jurists could disagree. Cf. United States

v. Grant, 9 F.4th 186, 192 (3d Cir. 2021) (en banc) (sentencing judge said

that defendant was “not that rarest [] exception referenced in Miller, where

the lifetime without parole is appropriate”).

No. 23-2240 23

After Jones, the status of Montgomery’s declaration that life

without parole is an unconstitutional punishment for juvenile

offenders capable of change, without apparently having been

limited to sentences imposed under mandatory sentencing

laws, simply is not clear. Although Jones reaffirmed that Miller

applies retroactively, it stands in considerable tension with

Montgomery’s explanation for Miller’s retroactivity.

To be sure, Walker has offered a reasonable way of resolv-

ing the tension between Montgomery and Jones. Even if no fac-

tual finding of permanent incorrigibility is required, it does

not necessarily follow that a sentencing judge could find a ju-

venile homicide offender capable of change and still sentence

him to life without parole. But this case comes to us on habeas

review, not on direct appeal. The question before us is not

whether we can or how we should best reconcile the Court’s

precedents. It is whether any fair-minded jurist could con-

clude that in a case involving a juvenile homicide offender

sentenced to life without parole, the Eighth Amendment is

satisfied by an individualized sentencing procedure. In light

of Jones’ narrow reading of the Court’s own case law, the an-

swer to that question must be yes. 5

It was not unreasonable for the Wisconsin Court of Ap-

peals to apply the clear holdings of Miller and Jones and to

leave the implications of Montgomery for discretionary life-

without-parole sentences to be resolved by the Supreme

Court in a future case. The state court was not required to

5 The Third Circuit sitting en banc rejected on direct appeal the same

claim that Walker makes now. See United States v. Grant, 9 F.4th 186 (3d

Cir. 2021) (en banc). Its decision supports our conclusion that the Wiscon-

sin Court of Appeals’ decision was not an unreasonable application of

clearly established federal law.

24 No. 23-2240

anticipate a future decision holding that a sentencing judge’s

comment that a juvenile offender is capable of change entitles

him to a meaningful opportunity for release during his life-

time, no matter how heinous the homicide. That may or may

not be the “logical next step” in the Court’s jurisprudence on

juvenile homicide offenders, but for now, it suffices to observe

that “there are reasonable arguments on both sides.” White v.

Woodall, 572 U.S. 415, 427 (2014). Because the state court rea-

sonably applied Jones and because Montgomery does not com-

pel a different conclusion, the district court’s denial of habeas

relief is AFFIRMED.