of the command of gang which valuation in with the specific intent to murder as many people as they could burst into an apartment building in the south so chicago into the apartment and sausage cargo shooting two people murdering them shooting a specific intent to kill those individuals in the car it's part of the game will tell you the man who went to juvenile court where a juvenile transfer hearing was held at the discretion of the judge he was transferred to adult criminal court where he was indicted for multiple counts of first degree murder home invasion in a town murder or jury trial was held he was convicted in the trial judge sentenced him to the mandatory natural life sentence that was required by the statute at the time as well as thirty years for each count of attempted murder in thirty years for the home invasion the conviction was affirmed on appeal in one thousand nine hundred six and sixteen years later the united states supreme court issued a ruling in law versus alabama that mandatory natural life sentences can not be imposed on juvenile defendants and murder defendants who have been who are under eighteen years old at the time of the crime based upon that the appellate court in this case under review of his fourth post conviction petition ruled that the defendant sentence was unconstitutional in invalid in order to a new sentencing hearing so the question before this court now is whether nat militarist as alabama is properly applied retroactively to a case that was deemed final sixteen years before it was released the people submit that the answer to that must be no this court has long recognized that under t v has lain in people versus flowers new rules of constitutional criminal procedure are nath applied retroactively except in two very limited circumstances the first one is that it is a rule of substance a substitute rule which takes a matter be on the power of the legislature beyond the power to punish so it effectively decriminalizes an offense or makes it so that a particular punishment cannot be imposed in any instance the other exemption is that the new rule of criminal of those exemptions is been satisfied in the reason why is because miller itself makes clear that it is a procedural ruling it specifically says that it is not announcing a categorical prohibition and the imposition of natural life sentencing for murder defendants who are under eighteen years old instead it specifically says that a pretty procedure must be applied and is the united states supreme court has previously said in penry imposing the procedure to impose a sentence does not mean that it is a substantive ruling a subset of ruling is one which makes it impossible to impose that sense anymore and it is i said miller specifically authorizes natural life sentences even those juvenile the freedom those murder defendants who are under eighteen years old it is also not a watershed rule in the reason why it is not is because the us supreme court in this court have recognized that watershed rulings are extraordinarily rare the only ones to have ever been identified is gideon versus wainwright the type of case that makes a guarantee of procedural due process of guarantee of fairness for the entire proceeding across the bow and as this court said in morris a ruling that make that applies only to sentencing is not akin to given is this court said until a pass apprentice rulings are not watershed because it is not akin to give me an answer for that reason the appellate court here was wrong when it ruled that miller vs the alabama applied to this defendant to this petitioner sixteen years after his conviction was the illinois a only courts in the country to have found miller to be a watershed ruling every other court across the country other every other reviewing court has rejected the nature of a watershed ruling that under the second t v example something that  noted that the only public court was unique in finding a watershed rule as to the substantive side of the t v argument in middle leave there are three state supreme courts that have ruled that miller is a substantive ruling that would be in law in mississippi in massachusetts but there are also three state supreme courts that have rejected it they have specifically held that it is not a subset of ruling that's pennsylvania that's minnesota and that's louisiana those cases and you'll see the cases that rule that it is a substantive ruling make the can make the mistake of assuming that simply because a mandatory natural life sentence can no longer be imposed but it has somehow altered the say it shoots which apply to the case but as we point out in our brief the appellate court or the statutes still authorize natural life sentencing and miller still oscar authorized it for licensing it's just new procedures have to be imposed and have to be applied in order to reach that but we're not talking in this case about imposing a natural life sentence and someone here in two thousand and fourteen we're talking about whether now have the sentence that was imposed in one nine hundred ninety three was properly imposed in was valid at the time and that's the heart of the retroactivity analysis is that we respect the prior determinations that were made according to the law at the time as proper and we only go back and allow a new rules in new understanding of the constitution to undo prior judgments of respect for the final judgment and recognition of the guarantees of the cat's usual rights in the new rules of criminal procedure do you not think that ours adapted to rigidly but also recognize the importance of finale that finale of judgment is something that the criminal justice system is very dependent that that there is a understanding of the need for closure naturist for the victims  just for the witnesses but also for the pieces these cases can go on forever business and very good example of a case that can go on repeatedly through time and that in that this was the defendant's fourth post conviction petition which he attempted to file if there isn't a finality of judgment then issues will be related gaited over and over and over and so what to recognize and what flowers stressed was that finality of judgment is inherent in the nature of the criminal justice system is that the parties ensure that the defendant receives a fair trial at the time of the trial he's entitled to all of the protections guaranteed by the has fuchsia in the statutes at the time and if the judgment is a firm if it's rendered final on appeal it's rendered final appeal that's the judgment that is there and so in flowers demonstrated the need for the finale and so that's why i would respectfully request that there is no reason for this floor to reengage in a discussion of whether netty is an appropriate ruling it is been the settled law the illinois since flowers came that and there's been no demonstration as we are human i reply brief the defendant can't satisfy cause of prejudice because he can act demonstrates that the information wasn't available before because the affidavit which  remained on that issue only even if the others are not granted i believe the defect is that i believe that one of the requests for relief in my counse as i said there is no basis for the cause in the certainly of no basis for prejudice because it is demonstrated by the record and is a court here found in the trial court found the trial judge at the juvenile discretionary transfer during was well aware of not only the defendant statement of the time the probation officers reports the other physical evidence but also mr baxter's lamont barracks or prior statements in grand jury testimony in so all that allegedly is missing from their calculus is further new information which comes to light twenty plus years later that maybe the petitioner was not is actively involved in discussion when they decided they were going to kill everyone in the apartment other than the one woman joanne r good morning your honour's council made into the court my name is patricia song with the center for juvenile mom policy at loyola law school in california formerly with the children and family justice center at northwestern university's school of law i first started representing dr davis five years ago i'm here with my pro bono counsel co counsel skadden arps on behalf of a dr davis a thirty seven year old mature man today but twenty three years ago was a fourteen year old child when he was sentenced to die in prison i focus not my argument on the issue of retroactivity but i'm happy to answer questions about cross really miller versus alabama changed prison without the possibility of parole this state's harshest available sentence and last the complete denial of judicial discretion to consider youth and any mitigating factors as required now by the united states supreme in the words of the united states supreme court the wealth of characteristics and circumstances attendant to it his chaotic upbringing and his early involvement with child protective services his and that contention is wrong that the sentences are distinct they are different and no one or took issue specifically with the impermissible omission of a mandatory life without parole sentence for children the constitutional infirmity here is that use in other middle mitigating factors were not considered as part of imposing that sentence indeed but the state of alabama tried to make the same argument and state does hear that  otherwise not cruel and unusual does not become so because it is mandatory so it militarist does alabama the state trying to have the court focus its attention on the continued continued availability of life on had nothing to do with children and did not purport to uphold apply its holding to the sentencing of jumana founders and in other words in the united states supreme court miller was saying that this case had to do with children so is that a mandatory by professional sentence is at odds with the capacity of a child to change and that it poses to greater risk of disproportionate shouldn't it went on given us further guidance on what constitutes a substantive rule with strong distinctions and it's cases since teak and essence a substantive role affects the outcomes of a case whereas a procedural rule affects the manner of determining those outcomes so if you look at the fact of miller and brought into the range of available sentences the post miller sentencing regime is distinctly different three  supreme court and some are considered its decision and reverses arizona in two thousand and two which me which found that a jury not a judge must consider aggravating factors in imposing the death penalty  certain facts essential to the imposition of natural life on children in the first instance there was no decision before there was no discretion at all given to a sentence or indeed miller flows from two fact defendant and relief was at the trial court's discretion miller versus alabama's a categorical rule that provides in every instance or gives the child in every instance by right a full sentencing hearing to me to consider a number of factors including their you mean their background their role in the participation and ultimately their capacity to reform themselves them the response by the state that any board of unusual challenge is to be official challenge in the mere fact that miller allows discretionary life sentences that's a miller itself the united states supreme court took two companion cases one on direct appeal and one on collateral review and granted relief to both defendants so adolfo is entitled to the same relief that jackson and jackson versus hogs got which was a recent incident to consider individually his youth and other mitigating factors united states supreme court in teak said  the us supreme court does not announce a rule and then proceed to apply about rule to the defendants in that case unless it would apply to austin really situated defendants so looking at the action of the court it is clear that the united states supreme court acted with full appreciation of the rapper cautions that would flow for a better activity when it granted relief to both defendants miller and jackson we also submit backed miller says alabama is a watershed a roll of criminal procedure that such a rule is essential to fundamental fairness and the accuracy of a criminal proceeding the united states supreme court in a case called sawyer versus smith provided a very helpful distinction as said about a watershed criminal rule watershed the role of criminal procedure is a prerequisite a fundamental and absolute prerequisite on the most fundamental fairness as opposed to a rule that adds to an existing protection of due process against fundamental unfairness and also clarified  k waters of a rule that is not watershed removes some remote possibility of an arbitrary infliction of upon that is not what we have here miller is an absolute prerequisite to fundamental fairness did not add to an existing due process protection there was no due process protection here there was no role that counsel played at sentencing the state would have you focused on getting in as the only exception but even that the united states supreme court has never found to qualify as a watershed rule we submit that nowhere is as profound as getting in counsel and we also submit that walked he was concerned with finale and comedy that those concerns are weakened or different in this context where we're talking about sentencing and state courts and where the review room means entirely within the state court system so common which is concerned  different here we're just talking about review within the state court system and the now it is actually for now the criminal convictions not of the sentence of the state doesn't actually have an interest in a specific sentence or number of years were term the balance that must be struck by this court the society's interest and the finale of criminal convictions on one hand and did and the defendant's interest in vindicating violations constitutional rights and on balance we argue that the complete denial of a child's right to individualize consideration when he faces a sentence that the united states supreme court has likened to the death penalty should out the sentencing scheme is facially unconstitutional that it no longer applies to child define it so it's a different kind of ruling than young miller and the state's reliance on leon miller to show that miller versus alabama the united states supreme court we on miller that in some situations a child just fine is caught at the intersection of different statutes and because of individual factors of back case and the way the defendant age at the g likes when when a dr davis brought his challenge under the state constitution the illinois appellate court declined to consider his argument on its merits and the first district appellate court noted that there was quote an element in equity in refusing to do so and that very few juvenile defendants are serving natural life sentences based on h been convicted of multiple murders under a theory of accountability and that it would be comparatively easy for the courts of the state to consider to consider whether the holding in miller should be applied to cases on collateral and it said that ever there was a case that should be applied to cases on collateral review even though it does not meet the requirements to me on miller was that case and so miller says alabama comes along changes the constitutional lan thank you again first in regards to counsel's argument regarding the jackson versus arkansas companion case to miller says alabama and we point this out specifically in our opening brief and reply brief that might be a compelling argument but for the was ineffective assistance of counsel for failing to inform your client about deportation consequences but the dia vs kentucky was a postcondition case it rose to the united states supreme court out of the state post conviction procedures and not a new rule of law then of course it can be applied and what the us supreme court held in changes was that it was a new rule of what the dia was and that governed by prior precedent and so therefore under t it could not be applied retroactive is a perfect example of the united states supreme court granting relief in a post conviction manner in a case which is already being final and then subsequently explaining why that ruling the something to be ruling still doesn't apply retroactively to other defendants no record activity arguments being made there's no mention at all and as we point out in our briefs in the absence of an argument can now be equated with the finding of a rule of retroactivity it's been the law in the united states report that's been the law on this court too in so jackson is a aspect of the case but it is not the term and it is not the spouse as to the argument that the state of alabama made the same claim that discretionary life the alabama authorities argued was that well we could have given him a discretionary life sentence anyway and the u s supreme court said no that's not good enough this sentence which we are under review on this direct appeal is what we're going to consider and they found specifically otherwise we are not adopting a categorical rule like we did in graham and roper and then ironically this would be the first case according to my opposing counsel which is both procedural and substantive and applies retroactively under both no court has ever found a substantive and procedural rule to be retroactively in summerlin over some of the three side extensively in our reply brief demonstrates why because in that case the ninth circuit holding ring versus arizona applied retroactively because it was both substantive and procedural in that it specifically the exact same arguments or practically the same arguments which counsel are making now as to why bring should be applied retroactively a su supreme court rejected ineffective rejected unanimously because although trivial was a five four decision the four dissenters only dissented on a watershed basis on a procedural basis no discussion at all of the substantive arguments  alabama and pryor in other cases pursuant to this court's decision in leon miller that additional procedures have to be taken before we can impose a natural life sentence and those murderers who are under eighteen this isn't a situation states that's asking this court to liken miller to getting vs alabama getting in versus wainwright it's the united states supreme court that says that is the standard for procedural retroactive if it's not a kin to get in it's not a watershed rule and so therefore it isn't at retroactive under the second and then finally counsel talked greatly about the prior decision in the appeal from petitioners third post conviction but he has sought executive clemency and that's the proper remedy for these particular defendants the sentences were imposed properly at the time they satisfied the constitution this new rule of criminal procedure will be applied prospect of we are properly and appropriately for no more will any defendant who is under eighteen years old be sentenced to mandatory natural life but going backwards going retrospectively those defendants their sentences are valid their convictions are available in the proper remedies through the executive as