In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1244
MCKINLEY KELLY,
Applicant,
v.
RICHARD BROWN,
Respondent.
____________________
On Motion for an Order Authorizing the District Court to Entertain a
Second or Successive Petition for Collateral Review.
____________________
SUBMITTED FEBRUARY 6, 2017 — DECIDED MARCH 16, 2017
____________________
Before WOOD, Chief Judge, POSNER, and MANION, Circuit
Judges.
MANION, Circuit Judge. McKinley Kelly has filed an appli‐
cation pursuant to 28 U.S.C. § 2244(b)(3), seeking authoriza‐
tion to file a second or successive petition for a writ of habeas
corpus under § 2254. Kelly is serving a 110‐year sentence (two
consecutive terms of 55 years) for two murders he committed
when he was 16 years old. He will first be eligible for parole
on February 1, 2050, when he will be 70 years old. Kelly wants
to challenge his sentence under Miller v. Alabama, 132 S. Ct.
2 No. 17‐1244
2455 (2012) (mandatory life sentences for juvenile offenders is
unconstitutional), which was made retroactive by Montgom‐
ery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to
sentences of natural life, but also to sentences so long that, alt‐
hough set out as a term of years, they are in reality a life sen‐
tence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).
Because Kelly stated a possible claim to relief under Mil‐
ler, we invited the State to respond, which it has done. It ar‐
gues that Kelly cannot state a claim to relief under Miller be‐
cause his sentencing judge was afforded significant discretion
by the Indiana Code to fashion an appropriate sentence and,
in fact, considered Kelly’s age at the time of the offense in mit‐
igation.
In resolving Kelly’s direct appeal, the Supreme Court of
Indiana explained that IC § 35‐50‐2‐3 set a presumptive sen‐
tence of 55 years for murder and allowed a sentencing court
to increase or decrease the presumptive sentence by no more
than ten years for special circumstances. The court also was
allowed to decide whether sentences for multiple convictions
should run concurrently or consecutively. IC § 35‐38‐1‐7.1.
Kelly v. State, 719 N.E. 2d 391, 394‐95 (Ind. 1999). In other
words, Kelly’s sentence could have been as low as 45 years
(55 minus 10 for each count, with the two sentences running
concurrently) or as high as 130 years (55 plus 10 for each
count, with the two sentences running consecutively).
In Kelly’s case, counsel argued his age in mitigation,
pressing hard on the fact that “[n]obody is the same person
when they’re 25 or 35 or 45 or whatever, that they were when
they were 16,” and “[y]ou don’t know to what extent their
conduct is the product of gross immaturity or whether there
No. 17‐1244 3
is something more missing.” (Sent’g Tr. at 1326‐27.) The sen‐
tencing judge identified six aggravating circumstances:
(1) Kelly was on probation with the Juvenile Court
at the time of the crimes;
(2) Kelly fired the first shot and his shots killed the
first of three victims, setting the subsequent murders
in motion;
(3) Kelly shot the victims at close range;
(4) the murders evince Kellyʹs lack of respect for hu‐
man life;
(5) there was a risk that Kelly would commit future
crimes; and
(6) Kelly killed more than one person.
It then considered two mitigating conditions:
(1) Kelly was sixteen years old at the time of the of‐
fense and seventeen years old at the time of sentencing;
and
(2) Kelly had no adult or felony convictions.
Kelly, 719 N.E. 2d at 395. The Indiana Supreme Court affirmed
Kelly’s sentence, holding that, “[d]espite its long list of iden‐
tified and recognized aggravating circumstances, the trial
court imposed the presumptive, rather than an aggravated,
sentence for each murder. The trial court properly outlined its
reasoning for [Kelly’s] sentences, and adequately balanced
the aggravating and mitigating circumstances with which it
was presented.” Id. at 395.
4 No. 17‐1244
We agree with the State: Kelly was afforded all he was
entitled to under Miller. The sentencing court had considera‐
ble leeway in fashioning Kelly’s sentence and in fact consid‐
ered his age when deciding on the appropriate term. Accord‐
ingly, we DENY authorization and DISMISS his application.
No. 17‐1244 5
POSNER, Circuit Judge, dissenting. When McKinley Kelly
was 16 years old, he shot and killed two people. Tried and
convicted in an Indiana state court of the two murders, he
was sentenced to 110 years in prison. Even if, as the State
says, Kelly will be eligible for parole when he is 70, he never‐
theless is effectively serving a life sentence. The ACLU of
Michigan reports that the average life expectancy of an in‐
mate sentenced to life in prison is 58 years; for African‐
Americans like Kelly the average life expectancy is 56; and
for juveniles sentenced to life the average is 50½ years. See
ACLU of Michigan, “Michigan Life Expectancy Data for
Youth Serving Natural Life Sentences,” April 2013,
http://fairsentencingofyouth.org/wp‐content/uploads/2010/
02/Michigan‐Life‐Expectancy‐Data‐Youth‐Serving‐Life.pdf
(visited March 15, 2017, as were the other websites in this
opinion).
Kelly claims that his sentence is unconstitutional and that
he therefore is entitled to be resentenced. We should author‐
ize the district court to accept a second petition for a writ of
habeas corpus from Kelly, to enable the validity of his claim
to be determined.
The Supreme Court, in Miller v. Alabama, 132 S. Ct. 2455,
2469 (2012), outlawed statutes that require judges to impose
a life sentence without parole on a juvenile offender, defined
as anyone who committed the crime (or crimes) before his
eighteenth birthday. Miller requires judges to give special
consideration to the fact of youth and how it reflects on the
culpability of the offender. For “children are constitutionally
different from adults for purposes of sentencing … because
juveniles have diminished culpability and greater prospects
for reform.” Id. at 2464. “[Y]outh is more than a chronologi‐
6 No. 17‐1244
cal fact. It is a time of immaturity, irresponsibility, impetu‐
ousness, and recklessness. It is a moment and condition of
life when a person may be most susceptible to influence and
to psychological damage. And its signature qualities are all
transient.” Id. at 2467 (citations omitted); see also id. at 2468;
Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).
In 2015 the Department of Justice released data from a 7‐
year longitudinal study of more than 1,300 “serious juvenile
offenders”—those who had committed felony‐level violent,
property, or drug crimes. See Laurence Steinberg et al., “Psy‐
chosocial Maturity and Desistance From Crime in a Sample
of Serious Juvenile Offenders,” Office of Juvenile Justice and
Delinquency Prevention, March 2015, www.ojjdp.gov/
pubs/248391.pdf; Melissa Sickmund and Charles Puzzanche‐
ra, eds., “Juvenile Offenders and Victims: 2014 National Re‐
port,” Ch. 3, National Center for Juvenile Justice, December
2014, www.ojjdp.gov/ojstatbb/nr2014/downloads/NR2014.
pdf. The Justice Department study revealed that more than
90 percent of juvenile offenders grow out of such antisocial
behavior by young adulthood and do not re‐offend after
their first contact with a court—and that regardless of the
sanction imposed on the child. Even after matching the sub‐
jects with the gravity of their offenses—whether they were
incarcerated, placed in residential facilities, put on proba‐
tion, or received community‐based services—the vast major‐
ity did not re‐offend; instead they grew up. Thomas A.
Loughran et al., “Studying Deterrence Among High‐Risk
Adolescents,” August 2015, Office of Juvenile Justice and
Delinquency Prevention, www.ojjdp.gov/pubs/248617.pdf.
Researchers conclude that “most juvenile offending is, in
fact, limited to adolescence” and that “the process of matur‐
ing out of crime is linked to the process of maturing more
No. 17‐1244 7
generally, including the development of impulse control and
future orientation.” Steinberg et al., supra, at 1. The “signa‐
ture qualities of youth are transient; as individuals mature,
the impetuousness and recklessness that may dominate in
younger years can subside,” and generally does. Roper v.
Simmons, 543 U.S. 551, 570 (2005), quoting Johnson v. Texas,
509 U.S. 350, 368 (1993).
As a result of these insights, nineteen states now prohibit
imposing a life sentence without parole on a juvenile, The
Sentencing Project, “State Advances in Criminal Justice Re‐
form, 2016,” p. 4, January 2017, www.sentencingproject.org/
publications/state‐advances‐criminal‐justice‐reform‐2016; the
incarceration of juveniles in both adult and juvenile facilities
has fallen, Ashley Nellis & Marc Mauer, “What We Can
Learn from the Amazing Drop in Juvenile Incarceration,”
January 24, 2017, www.themarshallproject.org/2017/01/24/
what‐we‐can‐learn‐from‐the‐amazing‐drop‐in‐juvenile‐
incarceration#.tWDqrzgtg; and likewise the number of hom‐
icides committed by juveniles, “OJJDP Statistical Briefing
Book,” Office of Juvenile Justice and Delinquency Preven‐
tion, May 2016, www.ojjdp.gov/ojstatbb/offenders/qa03105
.asp?qaDate=2014.
Consistent with these trends, the Supreme Court con‐
cluded in Miller that a life sentence is unconstitutional for all
but the “rare juvenile offender whose crime reflects irrepa‐
rable corruption.” Miller v. Alabama, supra, 132 S. Ct. at 2469,
quoting Roper v. Simmons, 543 U.S. 551, 573 (2005); see also
Montgomery v. Louisiana, supra, 136 S. Ct. at 733–34. Yet in
sentencing Kelly the trial judge said only one thing relating
to his youth when he committed the murders: “The mitigat‐
ing factors, as far as Mr. Kelly is concerned, is [the judge
8 No. 17‐1244
meant “are”] the fact that he’s 17 years old right now and
[was] 16 years [old] at the time he committed this offense.”
So cursory a statement does not evidence the deliberate re‐
flection on Kelly’s character that would be necessary to con‐
clude that he is “irretrievably depraved” and his “rehabilita‐
tion is impossible.” Roper v. Simmons, supra, 543 U.S. at 570;
Montgomery v. Louisiana, supra, 136 S. Ct. at 733. As far as the
record reflects, Kelly is a typical youthful offender. We do
not know the details of the fight that resulted in his shooting
two people, but the judge found that the killings were not
planned and were tragic for everyone involved, including
Kelly. The judge mused that there “have always been disa‐
greements among young people” and that what would have
been a fist fight or a knife fight in years past, today has ele‐
vated consequences because of the ubiquity of guns; not the
stuff of a crime demonstrating the complete depravity and
irredeemability of Kelly.
We should allow him to pursue his Miller claim in the
district court, which should conduct a hearing to determine
whether he is or is not incorrigible.