# Curtis Walker v. Dan Cromwell

> Court of Appeals for the Seventh Circuit · June 16, 2025 · 140 F.4th 878

URL: https://www.frixlaw.com/law-library/cases/11071968

## Case

- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** June 16, 2025
- **Citations:** 140 F.4th 878
- **Precedential status:** Published
- **Opinion:** Opinion by Hamilton
- **Judges:** Hamilton
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11071968

## How later opinions describe it (automated extraction)

- noting that Supreme Court case law "offers mixed signals on cases . . . where a juvenile homicide offender is sentenced to life without parole as a matter of judicial judgment and discretion."

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11071968. Public record. Not legal advice.