cortical beyond all possibility of rehabilitation and rule from miller is now retro and in two thousand and sixteen the only supreme court extended miller's reasoning to juvenile sentenced to death back to life meaning a term of years that has the same practical fact as a natural life such as in this case calvin was seventeen years old when he was sentenced to a sixty five year sentence calvin will be released from prison at the age of eighty one by all intents and purposes this is a de facto life sentence calvin would not only need to outlive the life expectancy of a prisoner which is sixty four years but he would need to outlive a life expectancy of the general united states the court said that a life sentence is only appropriate where the sentencing court considers miller factors age family home environment the degree of participation in the crime the juvenile juveniles prospects for rehabilitation and where the court's reasoning conveys a finding that the defendant was permanently in cordial now here calvin is requesting a new sentencing hearing for two distinct reasons the first is that the sentencing court failed to properly consider one of the miller factors and that is the juveniles prospects for rehabilitation the the facts of this case are very are in stark contrast to the cases cited in the opening brief in people  home this factor was properly considered because the sentencing court consider the p s i i which included a comment from the probation officer that the defendant is beyond rehabilitation in people  crossed the sentencing court heard testimony from the reverend and the defended about his potential for rehabilitation and people of the stafford a case from this court these sentencing court heard by any state iowa or illinois to rehabilitate and there was no testimony at the trial at the sentencing hearing or evidence of a trial that conveyed that he was a b s that he had the potential for court held that we must evaluate these claims on a cold record and we should not be inferring into the court's language especially for something as critical as a miller recency here now there's another reason why calvin requires a new sentencing hearing and that is because the record below does not indicate that the trial court believed calvin to be one of the rarest of juvenile homicide that he was permanently orderable beyond all possibility of rehabilitation again this this the facts of this case are on like those cited in the opening brief in people be home in your honour's the juvenile defendant committed a homicides including the murder of an eighty three year old woman in that case not only did the probation officer know that he had no predilection for rehabilitation but the sentencing court noted that he was beyond all possibility of rehabilitation and people be crossed where the defendant participated in the gang rape and murder of a sixteen year old girl who was stabbed over forty times had broken bones and suffer quintessential juvenile act knowing someone well and still deciding to and hour later think about the consequences have a think about everything and just make impulsive terrible decision and i think that's what happened here and even f and even when you said you are sure the court still must make a determination that calvin's crime represented such depravity that he can never achieve rehabilitation that the fact that it resembled an execution doesn't mean that how then is beyond all possibility of possibility of rehabilitation that according to miller montgomery and home and so those are the magic words of  courts make that determination that determination was not made in this case there was language that the defendant committed a horrible act that's absolutely true it was a senseless act that one can ask that calvin's case be remanded for a new sentencing hearing and that his actual innocence claim be advanced to the third stage where evidentiary thank you thank you alleged causing prejudice based on the miller's alabama argument was dismissed the first stage all issues in this appeal are reviewed and i'd like to begin by discussing the motion that was filed person on the twenty fourteen success of post conviction petition and that is the motion that is addressed in part two of the briefing to proceed to third stage tissue was acquired to establish a colorful claim of actual innocence based on his newly discovered evidence this means of the evidence must of course be newly discovered and must be material and it must be conclusive such that it raises the the probability that it is more likely than not that no reasonable juror would have convicted the defendant in mind of this new evidence conclusive proof of innocence or preclude his involvement in these crimes indeed to make this affidavit fit with the remaining evidence that the record this court would have to accept the following version of events petitioner first entered the convenience store prior presumably petitioner playing from the scene of the crime and running toward tracy ave mr barford gave chase but ended up losing the man the roommates then observe petitioner running past their apartment and meanwhile alexis either stuck around the scene or left and come back and started speaking to mrs far forward and then after that it's the two co defendants marvin alexis and robert and then go back towards tracy avenue where they are seen by the roommates and get into this blue or tilt car and then back to the crime scene i which point alexis is photograph speaking to  even accepting this affidavit as true and excluding petitioners confession for the sake of argument the evidence positively demonstrates that this third man was involved meaning that there was someone in addition to a left wing government involved in these cri there was also four eye witnesses good service so man running from the crime scene and there was a third thing this is unlikely the hoskins testimony would change the verdict in this case and mind of this evidence and the remaining evidence of record which included petitioners  confession in contrary to fish there's the position in this appeal excuse me this confession cannot be simply ignored and evaluating hoskins affidavit because we must consider the evidence not in a vacuum but as a whole finally a petition is claiming he was there he confessed under threat it was contradicted by the testimony of two rebuttal witnesses both of whom testified that no occurred but again the jury heard this information or to trial so taking district in people versus walker concluded that miller claims became available as early as two thousand and five when the u s supreme court decided roper versus simmons and people vs was the aide to the subject of petitioners latest motion to cya additional authority  third district found cause for the claim was raised in the first post conviction petition following the u s supreme court's decision in two thousand and twelve and miller these cases illustrate the fact that petitioners miller claimed was available to him as early as two thousand and five that the latest by march twenty fourth teen but at any rate was available to him prior to the filing of his october two thousand and fourteen post conviction petition this argument is therefore barred by section one twenty two dash three of the sixteen however it was the bush concern a defacto life sentence may no mention of riots instead basing its cause analysis on the us supreme court's decision in miller walker dealt with a discretionary life sentence yet it found of the miller claimed to be available in two thousand and five over a decade before supreme court expressly extended miller protections to discretionary sentences as well as mandatory and home similarly the sentence in johnson was a forty year discretionary sentence give the court based its cause analysis on the twenty fourteen davis decision as opposed to re assess or omen for that matter this question similarly reject the proposition that petitioners miller claimed was not instead concluded that miller itself and by extension the eighth amendment prohibited these sentences already as such petitioners miller claim became available to him at least ten twenty twelve when the u s supreme court cited miller but at the very latest and march twenty fourth team when davis was cited and petitioner therefore cannot establish cause because the lack of available precedent is not sufficient to establish cause a person for the cause impressions set forth and one because miller does not apply the sentences less than mine however petitioners post convention petition failed to make excuse me failed to produce enough in the way of documentation to allow the lower court to determine that his sentence was the fact of life the sole factual allegation in his petition on this point is that he a seventeen year old received an aggregate sentence of sixty five years and present the sole factual allegation is insufficient to meet the burden of submitting enough documentation to allow the lower court to make that decision and this is particularly true when as petitioner knows on appeal that he is eligible to be released around around the age at  general us population is expected to live but the fact the petitioner has signed of this documentation on appeal this is not really of his duty to present information to the lower court because in this appeal we are concerned with the question of whether petitioner established prejudice in his pro se motion by presenting enough to allow the trial court to make that determination as opposed to this court on appeal and this was petitioners burden contrary to his world with  information that would allow the trial to ascertain what his life expectancy can be the trial court was without enough information to determine by there the sixty five year sentence could be served within defendant's lifetime he therefore failed to meet his burden of proving that he received a de facto life sentence and therefore did not prove that miller fired at all however even assuming that petitioner met this burden the record in any case the sentencing court did about whether this court can draw inferences from the trial court's findings and the answer is yes that's exactly what the supreme court did in people versus homan when it looked at the cold record and considered whether the facts and the evidence that the trial  before it at that time fit into the miller factors that the supreme court set forth there and home and then also the sentencing statute and they concluded that the p s side and the evidence presented  a pending armed robbery charge at the time fisher and also been involved in several serious role violations while in jail during the proceedings following the show had a long history of illicit drug abuse alcohol abuse the trial court specifically made a finding petitioner by the ability to conform his conduct to the rule of law which is another way of stating that petitioner had an inability to be rehabilitated and so looking at the court's express commons we can draw from those comments the fact that the trial court properly considered this factor and i just would like to end on the fact that there is no rule and miller e and in fact the potential for rehabilitation and encourage ability are two sides of the same point if it's long been established that they were my sentencing courts are required to consider the potential for rehabilitation when sentencing independent and view that as a factor under miller that there and i never fired to consider however if a trial court finds that the defendant lacks the potential for rehabilitation it has necessarily found that the  defendant is in court she will so there there is no express rule that this sentencing court must make a finding with respect in court ability i believe that those comments are an extension of the requirement that they consider the rehabilitative potential and so on the court correctly dismissed petitioners or a motion for leave to file successive post conviction petition for numerous reasons primarily because the exploiting it as a matter public policy your honor miller requires that the sentencing court take into consideration the defendant's youth and its attendant circumstances the circumstances  discussed at several points in the senate think hearings also including yes i and the attendant circumstances referred to the patient's home life certain factors that reflect either troubled upbringing so the court did take these factors into consideration not is reflected in the sentencing the station admittedly the court did not use miller nomenclature because it occurred while before miller was ever decided consider those miller factors and that's what the trial court did here and this court looks at the trial court's sentence and the comments made at sentencing in the evidence or at this point will find sufficient information to evaluate those elements  court did not extend the fact all life is extend no to the fact of life until two thousand and sixteen so the timing of calvin filed his two thousand and fourteen actual in its innocence petition this isn't even working its way through the that did not happen until mid two thousand and fifteen so cowardly with him but this was not available to him at the time and because of that that cannot be held against him once once ray as was decided in two thousand and sixteen that opened the genetic diseases they might have looking at the environmental health impact of living in prison and the state not only does that but it's retroactively applies the standard that created for appeal to health and says because he didn't present  absolutely heartless were the reason clearly indicates that there is no chance for this defendant to ever change his behavior calvin is not one of these rare juveniles he's not going to the reasoning incident does not demonstrate that and unless does he requires a new sentencing hearing where the court can make a proper determination i'm not arguing right now that calvin should be released from prison tomorrow we're just asking for a new sentencing hearing that conforms with miller and making sure from the third district they held that where the appellate court determined that the trial court did not properly consider a miller factor or did not convey a finding a permanent court's ability that further proceedings under the act are unnecessary because there's nothing the record is not clear in fact it doesn't demonstrate that calvin is one of these rare juveniles and because of that he's a stablish prejudiced and therefore meet the taps your honor said that my time is up there any furthe