In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2596
RICO SANDERS,
Petitioner‐Appellant,
v.
SCOTT ECKSTEIN,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11‐cv‐868 — Lynn Adelman, Judge.
____________________
ARGUED SEPTEMBER 23, 2020 — DECIDED NOVEMBER 30, 2020
____________________
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
SCUDDER, Circuit Judge. Rico Sanders received a 140‐year
sentence for raping four women. He was 15 at the time of the
sexual assaults, and his offense conduct was heinous and
cruel in the extreme. Now 40 years old, Sanders will first be‐
come eligible for parole under Wisconsin law in 2030. He
sought post‐conviction relief in state court, arguing that Wis‐
consin’s precluding him from any meaningful opportunity of
parole before 2030 offends the Supreme Court’s holding in
2 No. 19‐2596
Graham v. Florida, 560 U.S. 48 (2010). Sanders later added a
claim that the sentencing court’s failure to meaningfully con‐
sider his youth and prospect of rehabilitation when imposing
the 140‐year sentence runs afoul Miller v. Alabama, 567 U.S. 460
(2012). After the Wisconsin courts rejected these claims, Sand‐
ers invoked 28 U.S.C. § 2254 and sought relief in federal court.
The district court denied the application, and we now affirm.
I
A
Between May and September 1995, Rico Sanders commit‐
ted a series of sexual assaults. He forcibly entered his victims’
homes while they slept, suffocated and raped them, and then
robbed them of cash, food stamps, or whatever else he could
find. The youngest victim was living in a foster home. An‐
other victim had given birth only a few weeks prior to Sand‐
ers’s assault. Sanders admitted that he committed his crimes
near the first of the month on the belief the victims would
have just received public assistance checks.
Fingerprints recovered from three homes led the police to
Sanders. Wisconsin authorities then charged him as an adult
with five counts of sexual assault and one count of armed rob‐
bery. Rather than proceed to trial, Sanders entered an Alford
plea in the Milwaukee County Circuit Court. See North Caro‐
lina v. Alford, 400 U.S. 25, 38 (1970) (allowing the defendant to
plead guilty while maintaining his innocence). Sentencing en‐
sued and the state recommended 50 to 70 years.
The Milwaukee court concluded that the recommended
sentence was insufficient to protect the community and to
punish Sanders, and instead imposed consecutive terms of
imprisonment amounting to 140 years’ incarceration. The
No. 19‐2596 3
sentencing judge noted that, while he had handled “hundreds
of sexual assaults over the last three years,” Sanders’s crimes
were “some of the most horrific and horrible sexual assaults
that [he had] seen,”—“just beyond belief.” The judge also re‐
marked that he did not “even know if [Sanders was] grown
up [enough], to commit crimes so violent at the age of 17.”
(Sanders was 17 at the time of sentencing but only 15 at the
time of the offenses.)
Sanders challenged his plea without success on direct ap‐
peal in the Wisconsin courts. Wisconsin circuit and appellate
courts rejected the argument that his Alford plea was not
knowing, intelligent, and voluntary, and the Wisconsin Su‐
preme Court denied his petition for review. Sanders then
sought post‐conviction relief in the Wisconsin courts, alleging
that his counsel on direct appeal was ineffective. After the cir‐
cuit court denied his motion and the court of appeals af‐
firmed, the Wisconsin Supreme Court again declined review.
In 2011, Sanders turned to federal court, invoking
28 U.S.C. § 2254 and seeking relief in the Eastern District of
Wisconsin. Beyond reviving his challenge to his Alford plea,
Sanders claimed that his sentence did not conform with the
Supreme Court’s holding in Graham v. Florida, which requires
that states give juvenile nonhomicide offenders “some mean‐
ingful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” 560 U.S. 48, 75 (2010). The dis‐
trict court stayed Sanders’s proceeding to give him an oppor‐
tunity to exhaust this Graham‐related claim in state court, as
required by 28 U.S.C. § 2254(b)(1)(A). With his federal pro‐
ceeding stayed, Sanders amended his petition to include a
claim for relief under Miller v. Alabama, contending that the
Wisconsin sentencing court violated his Eighth Amendment
4 No. 19‐2596
rights by not considering his youth in sentencing him to 140
years. See 567 U.S. 460, 479 (2012) (holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offend‐
ers”).
B
With these two claims in hand—one Graham‐related and
the other Miller‐related—Sanders returned to the Wisconsin
courts. The Milwaukee County Circuit Court denied relief,
and the Wisconsin Court of Appeals affirmed. The court of
appeals assumed that both Graham and Miller applied retro‐
actively to Sanders’s case but nonetheless concluded that he
was not entitled to sentencing relief. In the face of competing
evidence, the court accepted Sanders’s assertion that his pro‐
jected life expectancy was 63.2 years. The court then reasoned
that the rule announced in Graham did not apply because
Sanders is serving a term of years and not a life sentence with‐
out the possibility of parole. Reading Graham to afford a juve‐
nile offender (not convicted of homicide) a “meaningful op‐
portunity to obtain release” before his natural life expectancy,
the court noted that Sanders is first eligible for parole in his
early 50s—well before his asserted life expectancy of 63.2
years.
From there the Wisconsin Court of Appeals did not pro‐
vide an extended analysis of Miller, observing only that it was
“not directly on point, as it concerned juveniles who commit‐
ted homicides and were given mandatory sentences of life
without parole.” Sanders was a nonhomicide juvenile of‐
fender who would have the opportunity for parole under
Wisconsin law, and therefore Miller did not entitle him to any
No. 19‐2596 5
sentencing relief. The Wisconsin Supreme Court again de‐
clined review.
C
Following these proceedings in state court, the federal dis‐
trict court in Wisconsin lifted the stay on Sanders’s § 2254 pe‐
tition. Sanders then renewed not only his challenge to his Al‐
ford plea, but also his contentions that his sentence neither af‐
fords him a meaningful opportunity to obtain release as re‐
quired by Graham nor complies with Miller’s directive that the
sentencing court consider his youth.
The district court denied relief. The court concluded that
the state court did not act unreasonably in concluding that
Sanders’s Alford plea was valid. The district court declined to
grant a certificate of appealability on this question, and the
issue forms no part of Sanders’s appeal.
The district court also determined that the Wisconsin
Court of Appeals’ decision that Sanders’s sentence affords
him a meaningful opportunity to obtain release because he
will be eligible for parole at age 51 with a life expectancy of
63.2 years did not reflect an unreasonable application of Gra‐
ham. In reaching this conclusion, the district court declined to
consider statistics Sanders presented from an American Civil
Liberties Union analysis showing that the average life expec‐
tancy for a juvenile sentenced to life in prison is 50.6 years.
Having never presented the statistics to the Wisconsin courts,
Sanders could not rely upon the information as a basis for ob‐
taining federal habeas relief.
Finally, the district court read Miller to bar only “manda‐
tory life without parole sentences for juvenile offenders.” Be‐
cause Sanders did not receive a life sentence, the district court
6 No. 19‐2596
determined that the Wisconsin Court of Appeals reasonably
concluded that the principles espoused in Miller do not apply
to Sanders’s sentence.
In denying relief, the district court granted Sanders a cer‐
tificate of appealability on two questions: whether his sen‐
tence affords him a meaningful opportunity for parole in ac‐
cordance with Graham, and, separately, whether the sentenc‐
ing court failed to consider his youth as a mitigating factor
under Miller.
II
A
The Supreme Court’s decisions in Graham and Miller frame
the issues before us on appeal. The Court decided Graham five
years after Roper v. Simmons, 543 U.S. 551, 578 (2005). In Roper,
the Court held that the Eighth Amendment prohibits the im‐
position of the death penalty upon offenders who were under
the age of 18 when they committed their crimes. See 543 U.S.
at 578. Capital punishment is disproportionate for this class,
the Court reasoned, because “neither retribution nor deter‐
rence provides adequate justification for imposing the death
penalty on juvenile offenders.” Id. at 572. The Court’s holding
was categorical: the execution of a juvenile is repugnant to the
Eighth Amendment regardless of the offense the juvenile
committed. Id. at 578.
Graham followed in 2010 and presented the question
whether the principles animating Roper apply to juvenile of‐
fenders sentenced to life imprisonment without the possibil‐
ity of parole for a crime other than a homicide. See 560 U.S. at
52. Terrance Jamar Graham received a life sentence for an
armed burglary he committed as a juvenile in Florida—a state
No. 19‐2596 7
that had abolished parole. See id. at 57. Graham’s only chance
for release was through the distant possibility of executive
clemency. See id. The Court concluded that “penological the‐
ory is not adequate to justify life without parole for juvenile
nonhomicide offenders.” Id. at 74. To be sure, a state need not
promise early release to this class of offenders. Id. at 75. But
the Eighth Amendment compels the lesser measure of afford‐
ing “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 75.
Two years later, in Miller v. Alabama, the Court held that
mandatory life‐without‐parole sentences for juvenile offend‐
ers convicted of homicide violate the Eighth Amendment. See
567 U.S. at 489. States are not prohibited from sentencing “the
rare juvenile offender whose crime reflects irreparable cor‐
ruption” to life in prison. Id. at 479–80 (quoting Roper, 543 U.S.
at 573). But before imposing a life sentence for homicide, the
sentencing court must “take into account how children are
different, and how those differences counsel against irrevoca‐
bly sentencing them to a lifetime in prison.” Id. at 480.
The Court has continued to underscore Miller’s direction
that life sentences should be imposed sparingly. Even in cases
where a court considers the child’s age before sentencing him
to a lifetime in prison, “that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘unfortunate yet
transient immaturity.’” Montgomery v. Louisiana, 136 S. Ct. 718,
734 (2016) (quoting Miller, 567 U.S. at 479). Applying the
teachings of Miller, we have held that the Eighth Amendment
prohibits not only de jure life sentences, but also de facto life
sentences—a term of years so long as to equate for all practical
purposes to a life sentence. See McKinley v. Butler, 809 F.3d
908, 911 (7th Cir. 2016).
8 No. 19‐2596
Roper, Graham, Miller, and Montgomery will not be the Su‐
preme Court’s last word on the Eighth Amendment’s appli‐
cation to juvenile sentencing. Indeed, this term the Court will
consider whether the Eighth Amendment requires the sen‐
tencing authority to make a finding that a juvenile is perma‐
nently incorrigible before imposing a sentence of life without
parole. See Jones v. State, No. 2015‐CT‐00899‐SCT, 2018 WL
10700848 (Miss. Nov. 29, 2018), cert. granted sub nom. Jones v.
Mississippi, 140 S. Ct. 1293 (2020) (No. 18‐1259). That Graham
and Miller do not purport to answer every question sure to
arise in their wake is the legal reality that defeats Sanders’s
request for federal habeas relief.
B
We begin as we must with the decision of the last state
court to consider Sanders’s claim on the merits: the Wisconsin
Court of Appeals. See Williams v. Jackson, 964 F.3d 621, 628 (7th
Cir. 2020). That court concluded that Sanders, who was as‐
sumed to have a life expectancy of 63.2 years and will be eli‐
gible for parole in his early 50s, has not been denied a mean‐
ingful opportunity for release under the rule announced by
the Supreme Court in Graham.
Our review proceeds under 28 U.S.C. § 2254. Relief is
proper only if the state court decision “was contrary to, or in‐
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable determina‐
tion of the facts.” 28 U.S.C. § 2254(d)(1)–(2). The Supreme
Court has instructed that under § 2254(d)(1), “an unreasonable
application of federal law is different from an incorrect appli‐
cation of federal law.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (quoting Williams v. Taylor, 529 U.S. 362, 410 (2000)). To
No. 19‐2596 9
prevail, Sanders must show that the state court’s ruling “was
so lacking in justification that there was an error well under‐
stood and comprehended in existing law beyond any possi‐
bility for fairminded disagreement.” Id. at 103. “If this stand‐
ard is difficult to meet, that is because it was meant to be.” Id.
at 102.
Sanders invokes § 2254(d)(2) and contends that the Wis‐
consin court’s determination that his life expectancy was 63.2
years was based on an unreasonable determination of fact. He
grounds this contention in an ACLU report indicating that his
life expectancy is only 50.6 years. See ACLU of MICHIGAN,
MICHIGAN LIFE EXPECTANCY DATA FOR YOUTH SERVING
NATURAL LIFE SENTENCES, at 2, available at
http://www.lb7.uscourts.gov/documents/17‐12441.pdf. Be‐
cause his first and earliest hope of parole will arrive at age 51,
Sanders contends that his sentence equates to life without a
meaningful opportunity to obtain release in violation of Gra‐
ham’s core holding. See 560 U.S. at 75.
The district court was right to conclude that Sanders
waived this argument by not presenting it to the Wisconsin
courts. The only information Sanders presented in state court
about his life expectancy came in his reply brief in support of
his petition for post‐conviction relief, where he asserted that
his life expectancy is 63.2 years—a figure he said came from
the United States Department of Health and Human Services.
The state court reasonably accepted this assertion.
Sanders cannot base a request for federal habeas relief on
information not presented to the state court in the first in‐
stance. Indeed, evidence introduced for the first time in fed‐
eral court “has no bearing” on review under § 2254(d)(1). Cul‐
len v. Pinholster, 563 U.S. 170, 185 (2011). As the Supreme
10 No. 19‐2596
Court emphasized in Pinholster, “[i]t would be strange to ask
federal courts to analyze whether a state court’s adjudication
resulted in a decision that unreasonably applied federal law
to facts not before the state court.” Id. at 182–83. The ACLU
report accordingly cannot aid Sanders in his pursuit of federal
habeas relief.
With our review limited to the record before the Wisconsin
Court of Appeals, we consider whether that court’s denial of
relief constituted an unreasonable application of the Supreme
Court’s holding in Graham. We cannot answer that question in
Sanders’s favor.
The Wisconsin Court of Appeals determined Sanders’s
chance of parole at age 51—twelve years before his expected
end of life at 63—respects Graham’s requirement of a “mean‐
ingful opportunity to obtain release based on demonstrated
maturity and rehabilitation.” 560 U.S. at 75. Nothing about
that conclusion reflects an unreasonable application of Gra‐
ham. In time the Supreme Court may give more definition to
what constitutes a “meaningful opportunity” for early re‐
lease. For now, however, the Wisconsin court’s conclusion
that Sanders will have his first chance at parole at the age of
51 is by no means unreasonable.
C
Sanders fares no better by rooting his request for relief in
Miller. Recall that in Miller the Supreme Court held that it is
unconstitutional to subject a juvenile offender convicted of
homicide to “a sentencing scheme that mandates life in prison
without possibility of parole.” 567 U.S. at 479. But, as the Wis‐
consin Court of Appeals recognized, Sanders neither commit‐
ted a homicide nor received a mandatory life sentence. He
No. 19‐2596 11
was convicted of nonhomicide offenses, his 140‐year sentence
was discretionary rather than mandatory, and his sentence
provides for the possibility of parole.
Our holding in McKinley v. Butler does not compel a dif‐
ferent conclusion. See 809 F.3d 908 (7th Cir. 2016). Benard
McKinley committed murder at the age of 16 and was sen‐
tenced to 100 years’ imprisonment with no good time credit
or chance for early release. See id. at 909. We recognized that
Miller plays a role where juveniles are subject to “discretion‐
ary life sentences and de facto life sentences,” and we noted
that the “children are different” language of Miller “implies
that the sentencing court must always consider the age of the
defendant in deciding what sentence (within the statutory
limits) to impose on a juvenile.” Id. at 911, 914.
Importantly, though, we made this statement in the con‐
text of McKinley’s sentence, which provided no possibility for
parole and was therefore effectively a life sentence. Sanders’s
sentence does not fall within that category. Absent controlling
Supreme Court authority that Miller requires a sentencing
judge to consider a juvenile offender’s youth and its attendant
circumstances before imposing a sentence other than a de jure
or de facto life‐without‐parole sentence, we cannot say that the
Wisconsin court’s decision resulted in an unreasonable appli‐
cation of federal law. See 28 U.S.C. § 2254(d)(1).
III
We close with two interrelated observations. No doubt the
law will continue to evolve in this area. Future cases will
likely test what it means for a person to have a meaningful
opportunity for release under the teachings of Graham. So,
too, may future cases make clear the outer limits of a
12 No. 19‐2596
sentencing judge’s discretion to punish juvenile offenders un‐
der Miller. But lower federal courts do not enjoy the benefit of
foresight—particularly so within § 2254 review. We decide
this appeal strictly within the confines of today’s clearly es‐
tablished federal law as determined by the Supreme Court.
In doing so, we offer a brief reaction to Sanders’s belief
that Wisconsin is certain to deny his request for parole in 2030.
He anchors that view in an analysis of outcomes of initial pa‐
role eligibility determinations for offenders serving life sen‐
tences. Put most simply, Sanders is convinced the deck is
stacked against his receiving parole in 2030. Now is not the
time for Sanders to advance this argument, however, as any
assessment of the point would immerse us in Wisconsin’s pa‐
role standards, procedures, past results, and projected out‐
comes—a task well beyond deciding whether the Wisconsin
Court of Appeals unreasonably applied Graham and Miller in
denying Sanders post‐conviction relief.
To its credit, and with appreciated candor, the Warden’s
counsel, on behalf of Wisconsin’s Attorney General, acknowl‐
edged during oral argument that Sanders, if he is denied pa‐
role in 2030, will have a future opportunity to challenge that
outcome in state court, including by raising claims grounded
in Graham, Miller, or another Supreme Court precedent that
may enter the U.S. Reports in the intervening years.
For these reasons, we AFFIRM.