Thompson v. Roy

KELLY, Circuit Judge,

concurring in the judgment.

A panel of this court in Martin v. Symes, 782 F.3d 939, 943-44 (8th Cir.2015), concluded that the rule announced in Miller v. Alabama, — U.S. --, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not apply retroactively. Based on that decision, I concur in the judgment. See United States v. Bearden, 780 F.3d 887, 896 (8th Cir.2015) (noting the “well-established” rule that one panel of this court cannot overrule the decision of another panel). Had the issue been presented to this panel as a matter of first impression, however, I would follow the holdings of those courts that have considered the issue and concluded the rule announced in Miller applies retroactively to § 2254 petitioners on collateral review.4

. See, e.g., State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014); State v. Ragland, 836 N.W.2d 107 (Iowa 2013); accord Songster v. Beard, 35 F.Supp.3d 657 (E.D.Pa.2014); United States v. Orsinger, No. CR-01-01072-05PCT, 2014 WL 3427573 (D.Ariz. July 15, 2014); Alejandro v. United States, No. 13 CIV. 4364 CM, 2013 WL 4574066 (S.D.N.Y. Aug. 22, 2013); Hill v. Snyder, No. 10-14568, 2013 WL 364198 (E.D.Mich. Jan. 30, 2013); Casiano v. Comm’r of Corr., 317 Conn. 52, 115 A.3d 1031 (Conn. May 26, 2015); Falcon v. State, 162 So.3d 954 (Fla.2015); Aiken v. Byars, 410 S.C. 534, 765 S.E.2d 572 (2014); State v. Mares, 335 P.3d 487 (Wyo.2014); Petition of State, 166 N.H. 659, 103 A.3d 227 (2014); People v. Davis, 379 Ill.Dec. 381, 6 N.E.3d 709 (Ill.2014); Diatchenko v. Dist. Attorney for Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270 (2013); Jones v. State, 122 So.3d 698 (Miss.2013).