one for gas six two three zero brian stark source's joe eastern or argument fifteen minutes per side and  starks was sentenced to die in prison for a crime he committed as a child his sentence of life imprisonment plus eleven years of others  well he was sentenced to life plus eleven years and under that sentence he will not become eligible for parole until he is about seventy one years old i mean the story seventy seven years old and his life expectancy is seventy one years old so he like that's correct what i would say is that when you take somebody who sentenced to natural life or life without parole there are still some remote prospect of release they could be granted executive clemency i mean there's no it's not impossible that they could be released but i think that when you take a person like my client that was sentenced to that was sentenced to a term that exceeds his life expectancy his chance of release is actually no less remote than that and this is especially true when you when you consider that people who are incarcerated have a lower life expectancy than people in the general population the district court found that giving the relief that your client is seeking was was barred said bunch i guess is are you pronounce so how do we get around so i mean we agree with you how do we get around bunch i think there are several ways to distinguish bunch first in bunch the court addressed e i think there are several ways to distinguish punch first and in bunch the court discussed miller but that was merely an dicta and so i think first of all it's not binding on this court and that the discussion was dicta secondly the bunch case is different from this case in this case my client was sentenced to life plus eleven years he was sentenced to life and we look to you know what his release date would be under the under the sentence that was imposed in bunch there were multiple different offenses no term that he was sentenced to was longer than ten years and there's different sentences were stacked and so with the court said was that when you take an aggregate sentence of fixed term sentences put together where you had distinct criminal acts and there were sentences for those distinct criminal acts that that's that's different don't they sledge blow up your you're your statistical table argument the bunch found a sentence of eighty nine years was permissible well it found that it was permissible because it was an aggregate fixed term sentence and they said they limited graham's holding to merely addressing cases of life without parole explain to me that seems to me that's a distinction without a difference so explain to me why that made that controls that dictates a different outcome in this case why why is eighty nine years ok but a fixed sentence where parole is possible but not until age seventy seven is not ok what why how could that be when we look at graham and miller and montgomery i think we have to look at their language and what they're talking about they are talking about life sentences and in two three two of those three cases they were talking about sentence there was sentences that were expressed we articulated as a life without parole in granting the sentence was actually articulated his life but the court looked to the parole rules and under florida law parole had recently been abolished so there was of prole but in each case there were examining life sentences and they were saying your way of life with parole we have life with parole after fifty one years has the supreme court spoken to life with juvenile offender to die in prison is it is unconstitutional to sentence him to a life time in prison that what is required is that he be given a meaningful or realistic opportunity for release when you apply those principles to a sentence like at issue in our case then our sentence is unconstitutional if it actively supports a it's unconstitutional to do that on cons to do it's unconstitutional to have a mandatory rule ok so in grand it was unconstitutional it was categorically unconstitutional for non homicide offenses and miller with the court said was that certain procedure is required that the court must at least take into account the offender's age but what the court made further clear in committed by juveniles and that in those for those types of crimes it is categorically unconstitutional to impose a sentence of that affords no prospect of release on that class don't have a categorical prohibition here and so when you make an excellent policy argument i don't anybody disagrees with that but the problem is when we eventually work our way through we get to a deference and then was the was the state court reading of whether or not you get the extension that you want graham and miller contrary to or an unreasonable application of even if i agree with you i don't see how i get around that so i think there are a couple of ways to that i believe we get around it one is that the tennessee court of criminal appeals confronted materially indistinguishable facts and arrive at an opposite result when you look at the two petitioners in miller one of them control jackson he committed a felony murder  that took place in the course of a robbery and he received a sentence of life without parole a my client committed a felony murder in the course of a robbery so both defendants were convicted of felony murder and the underlying robbery in prison he might die because he died a week after he got there we don't know what will happen there but he says he has a possibility of parole here i think saying he might die in prison is not well unfortunately for mr starks he's sitting in a prison system that affords inadequate health care and there are all sorts of studies that show that he is unlikely to even meet his life expectancy is so i think that in those circumstances he almost certainly won't die in prison and he would have to survive five years past the life expectancy that does not take incarceration going up to this concept that you're arguing persuasively about you look at the health care provided in prisons and you look at the life expectancy tables to determine if a son's is unconstitutional it has not to my all that so then how can it be contrary to the reasonable application of well the supreme court has remanded cases under miller and graham for exploration of different issues in montgomery the court remained vacated the sentence and remained it so that the state court could consider whether mr monk armories crime reflected where the court has looked to a term of years and this is effectively life there is not a case to my knowledge where the u s supreme court has applied that analysis but i when we consider there are all sorts of situations where there is a rule adopted by the supreme court and we apply that rule to different facts and i think that you know the i believe that the rule of miller is that you cannot condemn a juvenile to die in prison that you must give him a meaningful realistic opportunity for release and if you apply that rule to my to the facts of mr stark's case the language meaningful opportunity for release anywhere in miller it is it is in the exact let me put it is it in there any place other than in the context of the without parole s i mean obviously without parole does not give you a meaningful opportunity for release but aside from discussing it in the context of those two words is there any suggestion that we apply that principle in cases where  possibility of parole well clearly the sentence that was at issue in miller was a life without parole sentence so the discussion revolves around that but i mean there is a clear articulation more sewing more repeated the engram than in miller but it is quoted in miller that says that there must be a meaningful or realistic opportunity for release that part of the holding in the millions that involved is fixed term or was addicted so now you are you talking was it also talking about more general things which is how you want to apply it here and if it and if so was that part of the holding or was addicted well what the court said in its holding is the we therefore hold that the eighth amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders and then they cite gran and give a parent that a call that says a state is not required to guarantee eventual freedom but must provide some meaningful opportunity to obtain release based on rehabilitate so they qualify their holding by saying that that is what is required that you don't have to guarantee release but the opportunity for release must must be meaningful and engram day the court also uses the word realistic so i'm not sure you understand the sentence in scheme that you that the state has in many states though the felony the fact that it's a felony murder really elevates a sentence you know i mean i've been makes a murder on a medically makes a murder first degree that might not otherwise be right but you know despite the fact that that the felony subject somebody to longer time merely by being a felony murder you also can get additional time for that underlying routinely grounders it done only certain certain so routinely people are convicted of both the underlying felony and felony murder and then the court has discretion about whether to run the time concurrent or consecutive one then the court has the discretion whether to run the time concurrent or consecutive and so the trial court in mr stark's case ran the eleven years consecutive but the factors that the court took into account in making that the statutory factors the court was required to consider in deciding whether to run the eleven years concurrent or consecutive none of those revolved around eight revolves around age so his age was not taken into account in the determination of whether to run that eleven years concurrent or quickly but is a discretionary matter or is it like a certain conditions are met then you impose it consecutive no it's discretion it's discretionary but everybody gets sentence for both the only question is whether it's concurrent or consecutive correct i mean theoretically i think somebody could i suppose be charged with just the felony murder and they didn't a trial they did decided not to proceed on the indictment the indicted charge of the underlying felony i mean i don't know that they're required to proceed on both but in cases that i've seen they typically do like to write thank you you'll have your rebuttal morning your honour's may please the court michael stall for the warden joey sterling state court rejection of petitioners constitutional challenge to his sentence of life with parole pursuit to miller says alabama was not an unreasonable application of clearly established not under the statutory guidelines that the court follows your honor the charge of first degree felony murder carries with it a sentence of life with the possibility of parole or that parole or you're eligible for parole up to fifty one years the charge of attempted especially aggravated robbery which mr stark's was also convicted of that constitutes discretion of the court with regard to whatever sent the supreme court is required to clearly establish its precedent and the as this court has already alluded to the supreme court has never addressed the issue of whether or not a specific amount of time is required under but further this does bring court has told us that a state is under no obligation to guarantee parole to a defendant during his natural life that's the language of so your position is that no term of years is the equivalent of life for purposes of analysis under these cases it's my position and it's discourse position as well your honor this this court has previously established in bunch versus smith in two thousand and twelve and going for smith in two thousand and fourteen that the supreme court has never considered a fixed term agri consecutive sentence analysis and even in those cases in bunch vs smith where eighty four years were found to be an appropriate sentence that didn't deprive the defendant of the possibility of really i think it's informative but i don't think it's really you talk though those cases dealt with consecutive sentences  and none of it was really mandatory well in this case the consecutive loving your sentence was mandatory either your honor and intended circumstances were taken into account by the trial court in deciding to impose a consecutive sentence now those eleven years are only required to be served at thirty percent so you're really only talking about three point three years in addition to what he would be eligible for all at fifty one the court in going versus smith determine that eighty nine year fixed term consecutive sentence did not constitutionally deprive that defendant of the opportunity for parole even where that could be considered the functional equivalent of life in prison i think that's the wrong crimes ok so it's not mandatory the problem here is that it's there's a situation where even if you give somebody life with the possibility of rule in your particular state you can't be considered for fifty one years that's correct your honor but the supreme court has also told us that there's no categorical ban on life without parole for homicide offenses so there is no supreme court or federal law that requires parole for juvenile offender convict great priors the it requires the exercise of that of sound discretion that that's what it requires that's correct your honor and intended circumstances that consider age when you're considering a life without parole sentence but there's no requirement there of the constitutional obligation to look at ten in circumstances when you're looking parole and there's something you call life with parole and what is life without parole life with parole is that it's possible that if you live to ninety years you can get parole let's say that's what the rule is i mean is that would you say that that's constitutional if that's a if that if that is the lowest sentence the judge can give a juvenile convicted of murder is that constitutional the supreme court tells us that there's no constitutional violation under those circumstances and this court in going versus smith where there was an eighty nine year sentence for difference we're talking about  mandatory sentence you're saying that if the if the lowest sentence a judge has discretion to give a juvenile no matter what the circumstances for murder is effectively a full ninety years sentence without possibility of parole or anything that would be constitutional under supreme court precedent it is not unconstitutional  but that those are the facts in this case in this case we're looking at fifty one years what the cost what the supreme court has told us in montgomery is that the appropriate remedy for miller violation is for recent unsing to life with the possibility of parole in that case they  cited two wyoming statute that allows for parole after twenty five years to supreme court makes no determination as to whether twenty five years fifty years or hundred years or appropriate for the possibility of parole to arise or defendant so this court has found previously that consecutive stacked terms that result in an effective parole date eighty nine years later would be constitutional under miller the supreme court has told us in montgomery that no less than twenty five years would be appropriate but makes no determination as to how long i defend it can't be in prison before he's eligible for parole what reason i do think there's a difference between whether something is constitutional and whether the decision that it is is unreasonable under supreme court and i think that you know when you make an argument that it's not an it doesn't fail dead deference yes but to argue that a rule that permits parole at age ninety is constitutional under these cases i just think is you know  really makes it seem that you're really not considering the issues but will differ in lower court opinions would support my conclusion your honor there's been several lower court opinions in nebraska and tennessee that support the it's for i would just say the petitioner has not been condemned to die in prison your honor and clearly established principle or what position has not been condemned to die in prison your honor and clearly established core precedent tells us that in this particular instance there is no constitutional violation where the defendant is offered an opportunity for parole after fifty one years or fifty one years plus the consecutive eleven year term for his additional conviction attempt especially as so this  the way it would operate is that would be fifty one years plus three pretty much yes and no your honor you also have to look at pretrial credits and good time credits to an extent the opportunity for parole is dependent on the defendant so there's really no way of being exact on to when parole would would become eligible for the defend in this case but that goes to the second sentence right i mean as to the first sentence i thought somebody did the math and with all the potential credits you could possibly get it's fifty one years no you're on a huge you're still eligible for the credits is applied to you under under both conviction so pretrial years is not a minimum the minimum is actually less than fifty one if you get all he could be it could be your honor so if somebody is sentenced say on their seventeenth birthday and they get all the credit they could possibly get their exemplary they do everything right what's the earliest they could get parole it's an it's impossible to understand exactly your honor because because good time credits and where you are in different institutions have different rules his brief but that was only calculated if he served the entire eleven year sentence as well but that's only give us your best estimate if it's not fifty one then what's your best estimate if the guy gets the most breaks that he could get  fifty years at thirty it's not going to be thirty your honor i mean it's going to be close to you know whatever it would be before if suing no credits it would be fifty one years plus three point three years because the consecutive level your sentence is only to be served at thirty percent we know what the credits are in the federal system is fifteen percent so what on average what is it in tennessee i can tell you when i when ok fair enough  consider this sentence the functional equivalent of life in prison that that is the constitutional violation under miller montgomery or graham or roper vers i just wanted to clarify a few things first of the district court did essentially make a factual finding that mr starks will not become eligible for parole within his life expectancy and so that finding would be subject to clear a review and if this court were to find clear review that it was clearly erroneous or not adequately supported by the record we did ask for an evidentiary hearing in the district court at which we could have put on more extensive evidence about life expectancy and how incarceration impacts that and other evidence and we were denied that hearing so if the court were to find judge haynes factual finding about life expectancy and support in adequately supported in the record i think every man would be appropriate i could get us way off on a wrong track here but you haven't exhausted that you haven't presented it to the state court hav i my memory is not is failing me a little on this i know i believe that we presented some evidence about life expectancy but merely through citation to the pleadings your claim to the state court that the sentences antojitos based upon life expectancy and what the actual sentence will be at a minimum in this case ok so mr stark's percy the pro se in state court and i believe that he did the argument was based on life expectancy so that argument was made to the to the state court to my memory on collateral review after midnight there was a motion to reopen the post conviction and it was made and those proceedings that were filed after miller  the second point i just wanted to address is i think miller cannot turn exclusively on the name of the sentence you know if it has it has to have more meaning than that and so as judge white as as you were exploring with with counsel if the sentence were articulated as one hundred years with no parole eligibility until you reach the age of ninety i can't imagine that anyone would disagree that that sentence violates miller and so where do we draw the line and what miller's holding is i think the appropriate place to draw it is that life expectancy into just ensure that the words of miller and graham that have meaningful opportunity for release has to exist the you know as evidence of that every state that has amended its statutes to comply with miller has afforded parole eligibility at a range between fifteen and forty years between one if teen and forty years she forty forty so you know there have been between ten and fifteen states that have that have amended their statutes to comply with miller and they have understood that miller does not allow them to say ok fine we will take life with parole off the books and we well just put pearl eligibility at sixty years or seventy years or something that exceeds life expectancy they have understood that miller requires that there be a meaningful opportunity for release but what seems to be a hard argument  make is that if you're sort of tacitly conceding the twenty five to forty probably passes muster this is fifty one so now we're i don't mean to minimize this if you're the person that's sitting in jail but now we're we're talking about eleven years so is the fact instead of forty is that contrary to or an unreasonable application of it may well be that the supreme court says that in a direct appeal because obviously they don't grant the they don't establish these principles and generally on collateral review but they haven't done that well a sentence a sentence that allows parole eligibility at forty years you're talking about a juvenile offender coming up for parole by the time he's fifty eight years old isn't that correct i mean if his offense occurred at the latest at age eighteen and he has to serve forty years you're talking about him coming out for parole before he reaches the age of sixty and that complies with language from miller and montgomery that talk about a meaningful opportunity for release the talk about restoring his hope of some years of life beyond prison the sentence of mr stark's case does neither of those things and that's why it's unconstitutional all right i think we've got it it's a difficult case and we'll give it due consideration