Without mentioning the decision by the Mississippi Supreme Court, the Alabama Supreme Court has also now ruled that a Miller-factor hearing should be conducted. State v. Henderson, 2013 Ala. LEXIS 107 (Sept. 13). The Alabama Legislature failed to pass its Miller-fix legislation this year, so the Supreme Court decided it was time for it to solve the problem.
The Florida District Court of Appeals has chosen to use a statutory revival theory to go back to a fairly lenient punishment scheme. Horsley v. State, 2013 Fla. App. LEXIS 13926 (Aug. 30).
Kind of interesting to see the variances across the states.
It appears the constitutionality of the amended Texas statute (at least insofar as it was given a retroactive effect) will be challenged in the Henry case in Dallas, which is pending on motion for new trial after resentencing.
Looks like my Miller case now has a PDR filed (or at least it's in the mail). For the first time (of course because it was just passed a few months ago), my guy is claiming the new Texas punishment is unconstitutional under Miller---doesn't give the sentencer any options to consider mitigation, violates the 8th and 14th Amendments, and the Texas Constitution.
Are there any other PDRs pending that we're aware of....besides Garza?
Looks like the decision in Nolley, PD-0999-13, in which the PDR was granted on October 23, will effectively decide this issue. The grant of review in that case likely means all of the other petitions will just be "held" for a while by the court.
The Pennsylvania Supreme Court has ruled that Miller is not retroactive. The main thrust of the holding:
Since, by its own terms, the Miller holding “does not categorically bar a penalty for a class of offenders,” Miller, ___ U.S. at ___, 132 S. Ct. at 2471, (and because it does not place any conduct beyond the State’s power to punish at all, see supra note 6), it is procedural and not substantive for purposes of Teague.
The need for a sentencing hearing in Texas appears to be settled. The SCOTUS denied a petition for certiorari in Nolley and the CCA has now denied the PDR in Lewis, No. 14-13-00330-CR.
Will be interesting to see if any other states adopt the Texas "fix." Moreover, so far the only move in this session of the Texas legislature is to remove culpability of 17 year olds for all criminal conduct. No effort to change the punishment for capital murder by 17 year olds from that chosen in 2005.
Well, surely at least sec. 6 of SB 1083 will be sufficiently controversial to draw a lot of debate. Most laws are prospective in nature and there is a need for finality in court cases, but it appears to me the entire punishment scheme is to be reopened for everyone who was less than 18 years of age at the time of his offense if Senator Rodriguez gets his way.
While not affecting Texas, which held Miller to apply retroactively, the SCOTUS has accepted review of the non-retroactivity holding by the Louisiana Supreme Court in Montgomery v. Louisiana, No. 14-280. SCOTUS had previously denied certiorari with respect to similar holding in Tate v. Louisiana, 134 S.Ct. 2663, 189 L.Ed.2d 214 (2014).