sniper attacks almost a decade later malveaux sought federal habeas relief relying exclusively on the new rule announced by this court in miller vs alabama but miller's rule does not cover malveaux case and the lower courts erred in holding otherwise i'd like to make three points one about miller one about montgomery and one about why this matters st if miller's holding isn't concerned with mandatory sentences much of this court's language in miller makes very little sense miller repeatedly stated its own holding in terms of mandatory sentences and the court's analysis specifically distinguish between mandatory and non mandatory states nd month gunnery must be interpreted both in light of miller and in light of the facts that were before the court all of the defendants before the court in both miller and montgomery had received mandatory sentences in this court should not lightly interpret a decision about retroactivity required to endure one full trial and sentencing hearing more than a decade ago and the court should not like lightly ask them to go through another particularly given that the original sentencing fully complied with them controlling constitutional restrictions i waive the remainder of my two minutes eighty of the petition appendix he doesn't just say that he's seeking relief based on miller he says he's seeking relief based on miller's holding that mandatory life without parole violates the th amendment so i think even malveaux when he originally sought h this case recognized the precise nature of miller's holding and i think it's extraordinarily hard to get away from that and we've explained to you why these sentences a convictions that there was any discretion and then and then the piece of information i'd like to have as any virginia judge ever convicted of capital murder which was the offense that malveaux was convicted of i believe that's factually true that i'm not aware of an example there have been examples of virginia courts considering whether to do so although those long predate malveaux so i had knowledge that those posted malvo sentence to go to your question about what the jury was instructed that is what the jury was instructed but virginia law is extremely clear that the sentence or is not the jury the sentencer is the judge and under the supreme court of virginia's holding in jones to which malveaux does not and cannot challenge this trial judge had the authority to suspend the sentence as a matter of state law and not only had the authority to do it but had the authority to do it at the time of malveaux struggle that's the specific issue that the supreme court of virginia addressed  jones and i think that's a binding holding as well how does the judge know he could given that there was no history of doing it i think that's because that's the position of the s g in this case but more fundamentally the th circuit concluded i call them mouthfuls used in attendance circumstances were not considered by either the jury or the judge to determine whether to sentence him to life without parole or so lesser sentence do you disagree with that's the i think it's very hard to tell based on the record whether they were i think the fairest description of the record is that there is no affirmative indication one way or another so tell me what the practical effect is or why montgomery and its language would have drawn a difference between a juvenile who was not sentenced to death and co's he was not in entered discretionary sentence was sentenced to death to life without parole even though the judge didn't think he was encouraged people but thought the crime was horrible so so that really is the nub of this case which given the language of money cumbrian miller doesn't make any sense to treat either the differently so just a sort of more i think the st thing i'd say to that is i don't think that for teeth purposes we can say given the language of montgomery and miller i think we need to be very specific where the rule that we're talking about is coming from and to address your question of what's the difference i think the difference is stated in the last paragraph of the miller opinion where the court fundamentally identifies the problem with the scheme  validated in miller the court said that the sentence or was deprived of quote the opportunity to consider youth and its mitigating factors and instead that the states at issue in that case had required that all children receive life without parole sentences as a matter of virginia state law that was not true here general this is maybe just a sort of my honest question phrased i'm a little bit differently of course miller talks about mandatory schemes a lot because miller was about a mandatory scheme but do you think after miller in a state where there was not been dettori scheme a judge could say you know what i just don't feel like thinking about the defendant's youth i don't think it's remotely relevant and i'm not going to just sweep away anything that the defendant presents to me about that i couldn't care less do you think that that's permissible under miller justice kagan i'm sorry i don't think that would be permissible but i think we need to distinguish between why that's not permissible i think as a matter of the th amendment that's not permissible but i think that the articulation of the cases following words and the death penalty illustrate why that is a new rule for t v purposes so i think that if a court were properly presented with that argument after miller it should hold that that's an th amendment violation but i think that would be a new rule for t v purposes and the way i know is how this played out in the capital context right so the court st decides what's and which deals with a mandatory death penalty very similar to miller and then the court has a whole series of cases afterwards and some of which really are very close to what you said justice kagan where the sentence or is not formally required to impose says i'm not going to consider you and the court in later cases said that also violates the th amendment but there was no suggestion that would i mean it i guess what you're saying is that it would take another case to make that clear but i think  itself makes that clear if there's anything that miller says i mean all of miller it's a thirty page opinion and it can be summarized in two words which is that youth matters and that you have to consider use in making these sorts of sentencing determinations and again of course it talks a lot about mandatory schemes because a mandatory scheme was in front of it but the entire reasoning was about how much youth matters and how a judge or a jury whoever  has to take that youth into account and that's the lesson of miller so two responses that justice kagan st i do want to differentiate because i think behaviors context matters here i agree with you that after miller the right interpretation of the th amendment is that the thing you describe would violate it but i think under this court's teague jurisprudence that doesn't resolve the question of whether decision to is a new rule i mean the court has said ever since teague that the definition of new rule is extraordinarily broad includes anything that is not dictated by the earlier decision and i just don't see how one can read miller and conclude that a decision that describes its holding in terms of mandatory sentences dictates that virginia's so  we're just going to posit that i disagree with that but suppose i didn't disagree with that then then you also have to deal with montgomery because that's the way month gomery read similar and one camera he says that's what miller said it's not some later new rule that's the rule for miller says montgomery i certainly acknowledge that monkey i resized that justice kagan but i don't think that's controlling for t v purposes and i think the court has specifically actually confronted a case quite similar where that  happened the case was cited on page seventeen of our brief it's butler versus mackellar where a very similar argument was made and rejected in the hay vs context so that case the st case was arizona was excuse me edwards versus arizona the one that says that when the defendant says he wants to talk to a lawyer police can't go and talk to him without getting a lawyer and then seven years later the court in arizona versus roberson says that is true even if the thing you want to go back and talk to him about is a different crime and in roberson the court said quote our decision is controlled by arizona versus edwards and then in butler in the habeas context the court said that was a new rule for purposes i just think that the argument that monk omri clarified or confirmed or any any of the life without i'm quoting it parole and unconstitutional penalty for a class of defendants a class of difficult ended because of their status that is juvenile offenders whose crimes reflect the transients nowhere in miller except for a few words that are sort of included in that very well so it was i try to read miller and mcgovern together to figure out what the subset rule is and that i conclude the substitute rule is that the state cannot recess you don't have to mecca make a record finding open court what's explicit about that the question then for me comes down to is a discretionary sentencing regime or won't nuff to satisfy the procedural requirements to implement that substantive rule or does there have to be something more on the record stated by the sentencing judge about youth justice can i think certainly in the hey b s context that satisfies the whole th of miller montgomery now whether that with the bat being a discretionary so i'm sorry yes i apologize and why isn't why is something more procedurally not required we know we know a record for a finding of fact is explicitly ruled out by the government that's very important but why isn't something more than just a discretionary sense in regime necessary well i think particularly because of the hideous context so i'm not i don't want to rule out the notion that the court couldn't in the further elaboration of the th amendment require such a thing but i think in the hay vs context what's critical is that this trial and sentence occurred long before either montgomery or miller and the court has emphasized that particularly in the haiti as we speak is not restricted for the sake of being restricted me ask it this way do you think a discretionary sentencing regime is enough to satisfy the substantive miller mcgovern rules i posited that you can't impose life without parole on someone is merely a mature as opposed to in court will i would say that says on the record that they didn't i think for purposes of federal habeas review the answer is still that that is not a cognizable basis for retroactively invalidate a conviction i think on direct review i think that person may have a very strong argument i suspect that i would think that person's go have the better of the argument that the person is going to win but that's because the way the courts cases develop is in a piecemeal fashion i mean now suppose the record does not have one justice kagan posited the record as it is in ninety nine point nine nine percent of the cases is youth is raised by the defense counsel and the sentencing judge either says nothing just imposes a sentence without explaining anything about youth or just discusses youth but says he's still going to stick with life without parole so in that circumstance is that enough yes and the reason is because as we explain and i don't we know and this is the tough part of the case for me it's right on this how do we know in that circumstance that the sentencing judge separated the in cordial from the using these phrases shorthand miro the merely a mature i think the best way we know that is because our brief and the state's brief explains in every single state that has a discretionary sentencing scheme the sentence or is specifically instructed to consider age and i think the court particularly in the heaviest context can presume that judges follow their obligation under state law is this one of those states where the sentence or is given a list of criteria that he's supposed to consider yes the supreme court of virginia in jones to specifically articulate the factors that sentences are supposed to consider including in deciding whether to suspend a sentence and one of those factors is age if unjustified is in considering whether to suspend the sentence i believe it does this is this is that again from the supreme court o change or alter what virginia law was all of the statutes that are discussed in john's two were on the books at the time of the sentencing it's not like virginia changed its law after it sent it what if we were unsure about that shouldn't  you mr chief justice and may please the court melville was arguing that his life without parole sentences for his murders are retroactively invalid under miller even if virginia law allowed him to seek a lower sentence based on his age that's wrong for two reasons st of all the substantive holding of miller is limited to mandatory sentences any objection malveaux has to the particular sentencing proceedings in his individual case would it best fall under what montgomery describes as miller's procedural component which isn't retroactive nd all that procedural component requires is the opportunity to raise age as a reason for a lower sentence neither montgomery nor miller prescribes it persist formula for taking age into account little on requires a sensor to consider age even when the defendant himself fails to put it issue now justice kavanagh you asked how we know that a discretionary scheme the existence of a discretionary scheme is sufficient to protect against the substantive right that's montgomery fines that miller recognizes i think we know about from a couple of different places st in miller itself i think the court goes out of its way to compare and contrast discretionary schemes and mandatory schemes i think you'll find this in particular page forty four of miller noting that basically as i read miller discretionary schemes are generally getting it right and mandatory schemes aren't and i think it would be quite surprising that the kind of scheme the court used as its baseline for comparison turns out in fact to be age but the procedural component of miller which is the opportunity to consider age is what protects the substantive right and if as the th circuit supposed and the virginia supreme court held in jones to mel though actually did have the opportunity to seek it lower sentence based on his age then i don't think he can recast his claim as a substantive claim under miller that he had his substantive rights violated  opportunity came from what so this opportunity came from the fact that the virginia supreme court again your honor we're not taking a position on whether this should in fact be considered a mandatory or discretionary scheme under miller we are just assuming along with the th circuit and i think as justice kavanagh's recent questioning god that we do think this should be remanded if the court agrees with us for some further exploration of the nature of virginia respect was able to seek suspension of all or part of the sentence on any ground including youth and if that is correct and that is and if that is sufficient for a scheme to be considered discretionary under miller then i don't think he has a claim under miller what he might have i suppose is a very untimely ineffective assistance of counsel claim although i'm not even sure he would succeed on the merits of that but we don't usually excuse defendants from their failure to raise particular considerations and decide that their substantive rights have been violated for that reason as justice cavanagh noted in ninety nine nine percent of these cases youth is going to be raised and that's because everyone rely it says that youth is important when you are sentencing someone to life without parole you want to still hold that a discretionary regime satisfies miller in montgomery and remained for consideration of all these things forfeiture whether it was really discretionary that's correct your honor we that's our only submission in the case is that you should reverse the th circuit on its view that even if  contrary to the original supreme court's view sorry in cars that even if consistent with the virginia supreme court's view this is a discretionary scheme than he would have a miller claim but again this is the same question that i asked mr  heightens if it's a discretionary scheme the judge could simply say well i don't think that that consideration matters at all i refused to consider it and you think that millard just not have anything to say about that nor think or answered about is a little bit different from general hayden's answer i do think miller as it's currently written and montgomery would say that a procedural right has been violated in that case but what we have here is a question of retroactivity and that's a procedural what you're talking about is procedural right that i think miller does require at least the opportunity to consider age and given its analogy to cases like eddings against oklahoma and walk it against ohio i think a sentence or can't decide that legally youth has no weight so let's let's assume that that procedural requirement is in service of a substantive requirement another words this it's in service of a substantive rule and that rule is the one that justice kavanagh made reference to which is the rule that the ever corrupt and only those people can be subject to life in prison without parole so that the requirement of consideration is in service of the substantive rule that says except for the corrupt you can't sentence a juvenile to life without parole sir just going to give you this sort of short answer your question i have a slightly longer answer think the shorter answer your question is yes the procedural right protects a substantive one but because it's a procedural right it's not retroactive the only thing that is retroactive under montgomery is what montgomery describes itself to be considering and this is on page seven hundred and thirty two dollars it says that what it's considering is whether miller's holding that precludes mandatory sentences of life without parole for juvenile offenders is rhetoric no mongomery says miller's holding that only the irretrievably corrupt can be sentenced to life without parole that's what mchenry says so that's you know in fact it's taken language from miller and saying that's the substantive rule that comes out of very difficult to completely square some of the language in montgomery with the language in miller which i think is very clearly focused on mandatory sentences and to the extent that the court has to preference some language of rather language we'd urge t court to preference the language that it hears to the common scenario in both cases which involved only mandatory sentences maybe keep going keep going the other thing i'd say about the particular paragraph on which we're focusing is i think it makes more sense if you view montgomery as really being focused on mandatory sentences which is all anyone was thinking about in the case and i think what montgomery is trying to do in that paragraph is to fit miller's holding which again montgomery recognizes in several places is limited to mandatory sentences into the language that this court has used to describe substantive rules and it does so in a kind of unique way it describes the boundaries of the class of defendants who are benefited under miller using the procedural language of what a sentence or two sentences under a discretionary scheme would necessarily need to find the terms transition to maturity and irreparable corruption come from earlier cases like roper and like graham where there used descriptively not prescribed privily to describe the kind of judgement a sentence or necessarily makes imposing this kind of sentence on a juvenile but if it is your own that's just to say you'd wish montgomery was a different opinion it's not a different opinion it it creates the tests that it creates based on the language in the or which you right was based on the language and roper so there's a chain of decisions and but there's a clear rule that comes out of it which is this distinction between irretrievably corrupt and all others well your honor i don't think it's especially clear rule in part because it kind of if i may use the word fudge is a little bit the way discourse describes substantive rules by describing in procedural terms usually you describe a class by reference to some objective fact like what the iron sorry vendor act of fact is the in cordial so your honor i mean that's not necessarily objective that is the fact that distinguishes the those are the people who can't you cannot sentence in a certain kind of way well you framing a verse i don't think is particularly problematic if it's limited to the only context anyone was considering that case mandatory sentences but it becomes very problematic if the language is extended to invalidate all wife without parole sentences under discretionary  taking here and to the extent that we have changed our position here it's because it's very difficult as i've acknowledged to reconcile the language of montgomery in miller and it's not something that we lightly ask lower courts to do as a matter of clarification we try to follow the letter of this court's decisions i think this court has frankly somewhat more leeway to kind of explain what it had in mind in montgomery which i think were only the discretionary sentences excuse me mandatory sentences that were actually at issue in that case thank you counsel chief justice and may it please the court miller in montgomery control this case the warden in the united states have just conceded that in order to rule for that this court would have to discard the reasoning of montgomery miller held that before imposing life without parole on a juvenile ascensions or must consider how the characteristics of use counsel against that sentence that individual ised sentencing hearing as montgomery explained effectually the th amendment rule that life without parole is an excessive sentence for most juveniles those who are not permanently in corrigible miller is not limited to mandatory schemes where life without parole is the only possible punishment it invalidated those schemes because they guarantee that courts will consider whether youth warrants a lower sentence which creates an unacceptable risk of excessive punishment but when a court has the theoretical power to consider a lower sentence but doesn't do so which is what happened here it creates precisely the same risk as the warden admits in his reply brief and i'd like to correct some of the statements about what actually happened at the sentencing hearing here because this is this is important melville was sentenced in two thousand and four that was not only before miller it was before  prosecutor sought a death sentence for him the issue before the jury was should he be sentenced to death or life without parole that was the only issue they were allowed to decide at the sentencing hearing before the judge which is extremely short eight pages at the end of the joint appendix there was no consideration at all of imposing a sentence less than life without parole and until a footnote in his reply brief the warden hadn't contested that it's pretty hard to contest the notion that you know somehow somehow miller was satisfied by you know the opportunity the you know the theoretical opportunity to consider use when it wasn't actually considered simply cannot be squared with the language of miller itself or the language and reasoning of montgomery that are you mean you're making is about the virginia scheme and get to that i think but there's the initial question about what miller and mcgovern mean and you heard by question about the substantive rule being something that separates the in cordial from the merely mature and the procedural rule particularly articulated mcgovern marie is you don't need to make a finding of fact a discretionary regime satisfies it and my question to you is why isn't a discretionary regime and i know you disagree that virginia is such a thing but well put that aside for the moment why isn't a discretionary sentencing regime enough procedurally to satisfy the substantive rule articulated in good has the substantive rule which i think you agree with your articulation  substantive rule requires that in order to ensure that juveniles don't receive an unconstitutionally disproportionate one is meant a court must consider the characteristics of the use and must make a determination as to whether that or sort interrupted this is important you said two things there must consider you said must make a determination the both opinions definitely say consider over and over again consider or take into account are the words used over and over  used a few times and never says make a determination neither opinion ever i think says make a finding of fact it does not say make a finding of fact i agree with that ok and then the question becomes if  discretionary regime suffices to allow consideration isn't a discretionary regime sufficient to satisfy an order gomery no it's not that in this case actually let's just stick to the broader question you know miller makes very clear that sentence or must actually consider the characteristics of use and determine whether life without parole is a proportional sen again i'm sorry but in most sentencing regimes as you well know throughout the country in a variety of sentencing courts judges are required to consider all sorts of factors by state law you know arguments are raised to the state court judge the trial judge about all sorts of factors the judge walton impose sentence without marching through a checklist of all those factors yet it is routinely accepted that the judge has quote considered the factor it has been raised or even if it's required as a matter of state law there are lots of state cases in federal cases that say so long as the issue's been raised we assume the judge quote considered it now if that's true and you can disagree that that true doesn't a discretionary regime where the argument can be raised necessarily satisfied or in the gun restrict wireman of consideration no it doesn't and let me explain why in this particular case it doesn't because was decided not this she was sentenced not only before miller but before roe bar there's no possible way that the judge could have you know silently in her head considered the factors that weren't even articulated in the st instance by this court until much later i may or may not agree with that soon going forward a sentencing judge though on a discretionary sentencing regime is presented with arguments that you should sentence the juvenile to life without parole because of his or her youth and then explains that the judge then sentences the juvenile to life without parole in that circumstances the judge considered the youth it's possible that that could be sufficient under me all one would have to make a determination looking at the record whether whether there was some judgment made that life without parole was in fact the proportion and spend their legal juvenile what would have there is a line in miller that says this is the one they hang their hat on that miller did not impose a formal fact finding requirement that militant not impose this is for montgomery yes that miller did not impose a formal fact finding requirement does not leave states free to sentence a child whose crimes reflect transients in if i'm wrong this is in a discretionary sentencing moving forward after children's courts know that they should have to see age and youth into account  find that i don't do this i don't do that most judges say i've thought of them all and this is my answer now i think with justice caplan or he's shaking his head yes is in that kind of system assuming that this was a per post children's case not a pretty jones case for which there's some ambiguity why isn't that system enough do and he didn't have to say i find it but he sentence a person should parole but you assume he knows what he's doing that in the absence of those arguments that then you don't you're not sure and the substantive rights should trump i'm not thought a lot of a lot of the state statutes of this is what i think is concerning some of my colleagues have disk have since miller said it's discretionary that four don't have to do mandatory life and they for example either that doesn't set them out or that just you know permits courts to do whatever they want yes and there are different kinds of and on and authority schemes i apologize well no i don't know  statute that expressly sets out these factors and if the judge considers that and what i did a search to consider them and requires the courts to consider them and then we can presume that the judge followed the law and did so but this is not a case where the judge was required to consider anything and in fact she did not consider imposing any lesser sentence than life without parole and the warden's position and the united states position is that bats a good enough back on justice kagan is question for a nd in a discretionary regime where the sensor is required to consider certain factors or even if not it's just a discretionary regime the defense counsel in any case were juveniles facing life without parole as a possibility is of course i would think you would agree and he competent defense counsel is going to argue the youth to the sentencing judge do you agree with that going forward yes yes ok and therefore can't you presume and don't we do this is just a sort of more or was indicating i'm not putting words in our mouth but in three thousand five hundred and fifty three a cases we also presume when something's been argued to the sentencing judge that the judge has quote considered unquote that factor yes and let me be clear i don't think this court needs to say anything about how to handle cases going forward after miller we might want to say what miller and become really mean as a rule together because that's been a lot of the focus of the briefs so we may have to indicate what is the substantive rule and what is the procedure and then we can figure out yes we'll just i mean the substantive rule is that the forbids states to impose life without parole on juveniles who are not permanently in corrigible and that's a hell of a thing of that is the holding of miller that is that is what montgomery well kent could montgomery change miller monk armory in montgomery the issue was whether miller was retro whether the rule adopted in miller was retroactive to cases on her adult doesn't have to take miller as it stands it change that it should end and it didn't what miller is it what didn't then we can disregard whatever montgomery said and look at what miller side where does miller say what you say that it says exactly what is held it says we hold we therefore hold that the th amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders that was  that was the holding that was the result there is also the reasoning that was necessary to that result when that wasn't the holding when they said we hold that was it was certainly part of the holding but the court also said we require a sentence or to take into account how children are different and the reason that it requires that is in order to effectuate the th amendment prohibition on disproportionate sentences for juveniles if there and i'm not arguing just to be clear that there is a requirement of a specific factual find in montgomery said there wasn't but what it also said is there has to be a hearing that separates juvenile substantive right is that you cannot do life without parole for and encourage a bold use there has to be a hearing and somebody has to make a finding about that it's not just a matter of discretion anymore it's a matter of a a factual finding it's not a sentencing factor it's a finding and i would have thought in those circumstances we might have specified who would do that finding and how that hearing would be conducted under consistent with a constitution well that that issue was not resolved in miller montgomery and i don't think it needs to be resolved as it is not over there strike though against your interpretation of miller and montgomery that the court would have created a new substan right that implicates the six the moment and not ever said so or even hinted at it or even acknowledge the question i actually don't think that's unusual it happens you know it happened with some regularity that a right will a new rule will be announced and then later the issue of you know who makes this decision a jury or a judge will come out that's what happens it was a pretty big issue all right you know the judge or the jury you know for critical new substantive right we might want to say a few words intellectually disabled as in this case there needs to be a procedure to sort out the intellectually disabled from those who are not and the question arose after atkins does that determination have to be made by a judge or a jury under a premie and the majority of courts the that i know of the majority have said no it doesn't have to be made by a jury it can be made by a judge and states have allocated that determination in different ways  so it's not at all unusual that the court wouldn't address the apprentice issue in these decisions but i mean to return to justice kavanagh's question about procedure and substance t necessarily go together the the necessary procedure has to effectuate the substantive rule and therefore as montgomery says it has to it has to involve a determination as to whether life without parole will be a proportionate sentence but we're now in particular defendant we know it doesn't require a formal finding right  correct it doesn't require it doesn't require any particular form of words it does require a substantive well you said it requires a determination and to me that sounds like a formal finding and one to be do know is that a formal finding is not required so it would seem that consideration and i thought we'd gotten that far before sort of it being included with respect to factors that must be considered in  imposing a sentence we're talking about three thousand five hundred and fifty three dollars which has a list of things that have to be considered in this would be be one of them yes and again we need you know we're not presented here with the question issue no matter how the court decides this case there have already been two thousand re sentencings under miller at which courts have made an effort to apply the miller factors  there is montgomery did not specify a turn of phrase or a specific finding that has to be made but what's absolutely clear is that the court does have to decide whether in light of the characteristics of use this is a proportionate life without parole is a proportionate sentence for this particular defendant and that although i don't think macarthur's i don't think the government says decide and decide to pick up on the chief justices question sounds like determination sounds like r hearing where youth and its attendant characteristics are considered as sentencing factors is necessary to separate those juveniles who may be sentenced to life without parole from those who may not you know it then goes on to say no we didn't require a specific juveniles are entitled to at least one opportunity to show that they are not permanently in corrigible and that it is not right to make a determination now that they are foreclosed from ever attempting to show that they have changed and your argument that virginia did not provide that is it absolutely did not provide that there was you know there was no so let's assume that jones was correct and that there was an ability to request the suspension that was not even remotely clear at that at the time let's say i was hypothetically then what if if it was clear that he could request  suspension i still don't think it would matter because the suspension hearing is not a miller hearing at the time roper hadn't even been decided i understand that we're not ready to say hypothetically that it was available to the defendant to argue whatever he wanted with respect to his use an attorney characteristics in any fashion that he wanted and that the judge had to consider whatever arguments were presented about youth before imposing a life sentence and that the judge could not impose that life sentence automatically let's say that's the state of the law in virginia hypothetically that we don't maybe we don't know that but let's just assume that all arguments are available not just incredibly any arguments about youth even better for the defendant all of it has to be considered the human want to learn requires however is not is not only i fear in that requires that you be considered you this considered in all kinds of contexts but there  all that is available to the defendant to argue then what i mean it was available to him to argue in the sense that you know every new rule is available to the defendant to argue before the rule fact you know she had no way of anticipating that that this new constitutional rule would be announced the court hadn't even taken the st step down the road toward that so you know even if that were the case that she absolutely could have gotten the same consideration had he you know been able to look into the future are that is not what we typically require defendants to do and that's why the miller rule is retroactive and were in an awkward place because of what the virginia court do with jones which is sort of look at something retroactively and say this is what you could have done there's a lack of clarity you get a judge's understood they could have done justice course which has posited moving forward they should consider each and all its hand in circumstances why would that system moving forward i'm not looking backwards if someone is sentence today and there are czerny failed at the hearing to argue encourage ability or the lawyer argued it and the judge didn't say one way or i posited earlier he just said i've considered all the factors they told me to consider the jones acceptance well st jones didn't did not say that courts had to consider age in light of  mill r or that they had to consider age at all what it held as miller is completely in a political in for ginia because we have a quote discretionary system going to reach this more carefully going forward however and going forward for jr is not doing anything to comply with miller are so let's be clear when miller was issued there were about two thousand eight hundred juvenile lifers in quote mandatory and non mandatory schemes almost every state has already resolved this issue and complied with miller and understood it the way we understand it there are only sixty states which only have sixty juvenile life for ours that haven't either made them parole eligible or begun that in your mind satisfied little or mock up or it it might very well ok yeah i am i am not arguing that it would not we're only talking about the situation here where there was no consideration of use not only with malvo but all thirteen of the people who are serving juvenile life without parole for capital murder and for ginia were sentenced in exactly the same way in none of those cases was there any meaningful consideration of a lower sentence let alone consideration of whether you made life without parole unconstitutional in the only two cases where defense counsel raised the possibility of a lower sentence the prosecutor said absolutely not life without parole is the mandatory minimum sentence so we know that and and we know and the th circuit made a finding and the district court made a finding to this effect that youth was not considered in the way miller requires and in what way was it necessary for the the youth of your client to be considered you think you described him as a child who committed these crimes because of transit immaturity i i have not describe determination she has not had that hearing at the hearing that miller and montgomery require and he is entitled to have one opportunity to make the case that he is not permanently in cor they committed the crime they may well have been able to provide evidence based on what they did after the crime that they are not in fact permanently and corrigible so if he can demonstrate as a result of good behavior in prison for example that he has been rehabilitated then he must be released no no absolutely not that's one piece of evidence that the sentence or can consider the sentence or be released it would mean that he would have the opportunity sometime in the future to make the case to a parole board that she has changed so we are we are nowhere near any prospect of being release so i mean the court that the one in the united states have made it extremely clear that they are asking this court to discard the reasoning of montgomery and there's absolutely no reason for the court to do that all of the arguments that they've raised were also raised in montgomery and the court declined to adopt and it shouldn't change here thank you consul general hayden's three minutes i just like to address three points what miller requires the shifting nature of malveaux as arguments and why this matters so i think miller is quite clear what it requires because it's in the very last paragraph of miller the court says on page forty nine the judge or jury must have the opportunity to consider mitigating evidence and this mr chief justice you asked how do i know he got that opportunity i can report virginia code nineteen two to sixty four four which is in the  juvenile offender the opportunity to present mitigating evidence but the sentencing court arbitrarily refused to consider it if there were such a case we would not need the th amendment because that would be reversed as a matter of how about the case they cited where counsel did raise this argument about the use and the judge said i have no power i think that would be st of all that that's not this case because there was no such object that it but it does provide so that instance and the that plus the history that before jones there was no juvenile convicted life without parole who was ever who sentence was ever suspended but i think that most under jones that establishes that that individual was sentenced in violation of state law not in violation of the th amendment and that's not mr melvin mr malveaux never requested such an opportunity and had he requested such an opportunity he could have pursued it and sorry if he requested that opportunity and the trial court refused to do it he could then have appealed to the very same court that decided jones to and said the language that i just quoted electical the practical reading that i would give these cases possibly st case you cannot sentence under a state law that's mandatory juvenile to life without parole why not because nobody's really considered whether he's immature so it's the reasoning it's not this procedure over that's the reason in this case they sentence him to life without parole and the odds are greater than five thousand and fifty that no one ever thought about whether he was in fact immature ok now it sounds to me like the same case now only new rule he sought hevia spaced on was miller and most of his discussion today was about montgomery the courts of rivers thank you thank you counsel the case was submitted