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We decline to address Castaneda’s argument under Graham

as presented by his brief on appeal, because the possibility 

exists that upon remand, Castaneda might not be resentenced 

to life imprisonment.

Finally, the State argues that the district court committed 

plain error when it failed to order Castaneda’s three sentences 

for use of a deadly weapon to run consecutively “to all other 

sentences imposed.”70 We agree and vacate all of Castaneda’s 

other sentences and remand the cause for resentencing.71

VI. CONCLUSION

Castaneda’s assignments regarding trial error are without 

merit. But the life imprisonment sentences imposed upon 

Castaneda were effectively life imprisonment without the possibility of parole and unconstitutional under Miller.

72 We accordingly vacate those unconstitutional sentences and remand the 

cause for resentencing. We also vacate all of Castaneda’s other 

sentences, because the district court committed plain error in 

ordering some of those sentences to run concurrently rather 

than consecutively.

 Convictions affirmed, all sentences vac

and cause remanded for resenten

70 Brief for appellee at 75 (emphasis in original).

71 See, Neb. Rev. Stat. § 28-1205(3) (Cum. Supp. 2012); State v. Scott, 284 

Neb. 703, 824 N.W.2d 668 (2012); State v. Russell, 248 Neb. 723, 539 

N.W.2d 8 (1995).

72 Miller, supra note 34.

State of Nebraska, appellee, v.

Douglas M. Mantich, appel

___ N.W.2d ___

Filed February 7, 2014. No. S-11-301.

1. Constitutional Law: Sentences. Whether a sentence violates the Eighth 

Amendment’s cruel and unusual punishment clause presents a question of law.

2. Judgments: Appeal and Error. When reviewing a question of law, an appellate 

court reaches a conclusion independent of the lower court’s ruling.
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3. Constitutional Law: Criminal Law: Statutes: Convictions: Sentences: Time. 

When a decision of the U.S. Supreme Court results in a “new rule,” that rule 

applies to all criminal cases still pending on direct review. As to convictions 

that are already final, however, the rule applies only in limited circumstances. 

New substantive rules generally apply retroactively. This includes decisions that 

narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the 

statute beyond the State’s power to punish.

4. Constitutional Law: Criminal Law: Time. New rules of procedure generally 

do not apply retroactively. The only exception is those rules that are “watershed 

rules of criminal procedure” implicating the fundamental fairness and accuracy of 

the criminal proceedings.

5. Constitutional Law: Criminal Law: Minors: Sentences: Time: Appeal and 

Error. The holding of the U.S. Supreme Court in Miller v. Alabama, ___ U.S. 

___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that the Eighth Amendment 

forbids a sentencing scheme which mandates life in prison without the possibility 

of parole for juvenile offenders, is a new substantive rule of constitutional law 

which applies retroactively to criminal cases on collateral review.

Appeal from the District Court for Douglas County: J. 

Patrick Mullen, Judge. Sentence vacated, and cause remand

for resentencing.

Adam J. Sipple, of Johnson & Mock, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, M

Miller-Lerman, and Cassel,

Stephan, 

In 1994, Douglas M. Mantich was convicted of first degree 

murder and use of a firearm to commit a felony. He was sentenced to life imprisonment for the murder conviction and 

5 to 20 years’ imprisonment for the firearm conviction. The 

murder was committed when Mantich was 16 years old. On 

direct appeal, we affirmed his convictions and life imprisonment sentence and vacated and remanded his firearm sentence 

for resentencing.1

1 State v. Mantich, 249 Neb. 311, 543 N.W.2d 181 (1996).
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322 287 NEBRASKA REPORTS

In 2010, Mantich filed an amended postconviction motion 

alleging his life imprisonment sentence violated the Eighth 

Amendment’s prohibition on cruel and unusual punishment 

because it was (1) categorically prohibited under the U.S. 

Supreme Court’s holding in Graham v. Florida2 and (2) grossly 

disproportionate to the offense for which he was convicted. 

Mantich also alleged that the attorney who represented him at 

his trial and on direct appeal was ineffective in not asserting 

these Eighth Amendment claims. The district court denied the 

postconviction motion without conducting an evidentiary hearing, and Mantich appealed from that order.

We heard oral arguments in the appeal on October 7, 2011. 

On July 11, 2012, we set the case for reargument and ordered 

supplemental briefing after the U.S. Supreme Court held in 

Miller v. Alabama3 that the Eighth Amendment forbids a state 

sentencing scheme that mandates life in prison without the possibility of parole for a juvenile offender convicted of homicide. 

We now hold that Mantich’s life imprisonment sentence is 

unconstitutional under Miller.

I. FACTS

On December 5, 1993, a gathering was held to mourn the 

death of a “Lomas” gang member. Several members of the 

gang attended the party, including Mantich, Gary Brunzo, 

Daniel Eona, Juan Carrera, and Angel Huerta. At the gathering, 

Mantich consumed between 5 and 10 beers and smoked marijuana in a 21

⁄2-hour period.

Sometime after 1 a.m., Carrera decided that he wanted to 

steal a car and commit a driveby shooting of a member of a 

rival gang. While holding a gun, Eona responded that he also 

wanted to steal a car and talked about “jackin’ somebody” and 

“putting a gun to their head.” Brunzo and Eona then walked 

toward Dodge Street to steal a vehicle. They returned about 20 

minutes later in a stolen red minivan, and Carrera and Huerta 

2 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).

3 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).
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got in. Over his girlfriend’s objection and attempt to physically 

restrain him, Mantich also got into the van.

The van had no rear seats. Eona was in the driver’s seat, 

and Brunzo was in the front passenger seat. Carrera sat behind 

the driver’s seat; Huerta sat on the passenger side, close to the 

sliding side door; and Mantich sat behind Carrera and Huerta, 

toward the back of the van. After a short time, Mantich realized 

that a man, later identified as Henry Thompson, was in the van. 

Thompson was kneeling between the driver’s seat and the front 

passenger seat with his hands over his head and his head facing 

the front of the van.

The gang members began chanting “Cuz” and “Blood.” 

Mantich thought the purpose was to make Thompson believe 

they were affiliated with a different gang. Eona demanded 

Thompson’s money, and Brunzo told Thompson they were 

going to shoot him. Mantich saw Brunzo and Eona poke 

Thompson in the head with their guns. Eventually, a shot was 

fired and Thompson was killed. Thompson’s body was pulled 

out of the van and left on 13th Street.

The group then drove to Carrera’s house so he could retrieve 

his gun. After this, they drove by a home and fired several 

shots at it from the vehicle. Later, they sank the van in the 

Missouri River and walked back to 13th Street. From there, 

Mantich and Huerta took all the guns and went to Huerta’s 

house to hide them. Brunzo, Eona, and Carrera walked toward 

the area of Thompson’s body.

After hiding the guns with Huerta, Mantich walked to Brian 

Dilly’s house. While still intoxicated, Mantich told Dilly and 

Dilly’s brothers about the events of the night. Mantich claimed 

he had pulled the trigger and killed Thompson. When the 6 

o’clock news featured a story on the homicide, Mantich said, 

“‘I told you so,’” and “‘I told you I did it.’” About an hour 

after the newscast, Mantich told Dilly that Brunzo was actually the person who shot and killed Thompson. The police later 

learned about Mantich’s conversations with Dilly, and arrest 

warrants were issued for Mantich, Brunzo, Eona, and Carrera. 

Mantich was arrested on January 4, 1994.

Mantich agreed to talk with Omaha police about what happened and initially claimed that Brunzo shot Thompson. The 
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324 287 NEBRASKA REPORTS

police told Mantich that statements were being obtained from 

Brunzo, Eona, and Carrera and that Mantich’s statement was 

inconsistent with the information the police had acquired. The 

police also told Mantich that Dilly said Mantich confessed to 

shooting Thompson. Mantich admitted telling Dilly he shot 

Thompson, but explained that it was a lie and that he was only 

trying to look like “a bad ass.” Mantich claimed that he had not 

shot anyone and that Brunzo was the shooter.

The police then told Mantich they knew what happened 

and assured Mantich that his family and girlfriend “would not 

abandon him” if he told the truth. At this point, Mantich admitted that he had pulled the trigger. Mantich said, “‘I’m sorry 

it happened. I wished it wouldn’t have happened.’” Mantich 

further stated, “‘They handed me the gun and said shoot him, 

so I did it.’” Mantich again confessed during a taped statement 

to shooting Thompson.

Mantich testified in his own behalf at trial. He acknowledged his statements to Dilly and the police that he had shot 

Thompson, but told the jury that he had not shot Thompson. 

On September 26, 1994, the jury returned a verdict of guilty on 

one charge of first degree murder and one charge of use of a 

firearm to commit a felony.

1. Sentencing and Direct

In October 1994, the district court sentenced Mantich to a 

term of life imprisonment on the first degree murder conviction 

and to 5 to 20 years’ imprisonment on the conviction of use 

of a firearm to commit a felony. Mantich’s life imprisonment 

sentence carries no possibility of release on parole unless the 

Board of Pardons commutes his sentence to a term of years.4

The court ordered the sentences to run consecutively.

On direct appeal, Mantich assigned various errors, including 

that the evidence was insufficient to support his convictions. 

He did not assert an Eighth Amendment claim with respect to 

his life imprisonment sentence. We found no merit in any of 

his assignments of error, but concluded that there was plain 

4 See, Neb. Const. art. IV, § 13; Neb. Rev. Stat. § 83-1,126 (Reissue 2008); 

Poindexter v. Houston, 275 Neb. 863, 750 N.W.2d 688 (2008).
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error resulting from a failure to give credit for time served on 

his sentence for use of a firearm to commit a felony. We therefore affirmed his convictions but vacated the firearm sentence 

and remanded the cause with directions to resentence Mantich, 

giving him credit for time served.5

2. Postconviction Procee

Mantich filed a pro se motion for postconviction relief on 

September 25, 2006. The court dismissed the first five grounds 

of the motion, reasoning they were the same grounds Mantich 

raised on direct appeal. The court did not dismiss Mantich’s 

claim of ineffective assistance of counsel and appointed counsel to represent Mantich with respect to that claim. That attorney filed the operative amended motion for postconviction 

relief on August 31, 2010.

The amended motion asserted Mantich’s sentence of life 

imprisonment without parole violated the Eighth Amendment 

because it was (1) categorically prohibited under Graham v. 

Florida6 and (2) disproportionate to the offense for which he 

was convicted. In Graham,

7

 the U.S. Supreme Court held that 

“the Eighth Amendment forbids a State from imposing a life 

without parole sentence on a juvenile nonhomicide offender.” 

The amended motion also alleged the attorney who represented 

Mantich during trial and on direct appeal was ineffective for 

not objecting to the life imprisonment without parole sentence 

on Eighth Amendment grounds.

The State moved to dismiss Mantich’s amended motion, 

asserting Graham did not apply because Mantich was convicted of a homicide offense. The State further contended that 

Mantich’s counsel was not ineffective.

On March 17, 2011, the district court denied Mantich’s 

amended motion without an evidentiary hearing. The court 

concluded that Mantich’s life imprisonment sentence was not 

categorically barred under Graham or any decision of this 

court. Mantich filed this timely appeal. While it was pending, 

5 See Mantich, supra note 1.

6 Graham, supra note 2.

7 Id., 560 U.S. at 75.
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the U.S. Supreme Court decided Miller v. Alabama.

8 Miller

held that a sentence of mandatory life imprisonment without 

parole for a juvenile violated the Eighth Amendment’s prohibition on cruel and unusual punishment. We ordered reargument 

and supplemental briefing on the effect of Miller on Mantich’s 

postconviction motion.

II. ASSIGNMENTS OF ERROR

In the original appeal from the denial of postconviction 

relief, Mantich assigned, restated and summarized, that the 

district court erred in (1) failing to vacate his sentence pursuant to the holding of Graham, (2) failing to vacate his sentence 

as unconstitutionally disproportionate to the offense of felony 

murder, and (3) failing to hold an evidentiary hearing on the 

issues presented by his ineffective assistance of counsel and 

Eighth Amendment claims. After we ordered supplemental 

briefing in light of Miller, Mantich reasserted all of the assignments of error raised in his initial brief. He also assigned, 

restated and consolidated, that his life imprisonment sentence 

is a violation of the 8th and 14th Amendments based on the 

U.S. Supreme Court’s decision in Miller.

III. STANDARD OF REVIEW

[1,2] Whether a sentence violates the Eighth Amendment’s 

cruel and unusual punishment clause presents a question of 

law.9 When reviewing a question of law, an appellate court 

reaches a conclusion independent of the lower court’s ruling.10

IV. ANALYSIS

1. Miller v. Alabama Applies to 

In Miller v. Alabama,

11 the Court held that the “Eighth 

Amendment forbids a sentencing scheme that mandates life 

in prison without possibility of parole for juvenile offenders.” 

8 Miller, supra note 3.

9 See State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003).

10 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009); State v. Davis, 276 

Neb. 755, 757 N.W.2d 367 (2008).

11 Miller, supra note 3, 132 S. Ct. at 2469.
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The Court reached its conclusion by applying two lines of 

precedent. First, the Court recognized two previous juvenile 

cases, Graham v. Florida12 and Roper v. Simmons.

13 Graham

held that a juvenile could not be sentenced to life imprisonment 

without parole for a nonhomicide offense. Roper held that a 

juvenile could not be sentenced to death. Both thus announced 

categorical bans on sentencing practices as they apply to juveniles. The Court in Miller reasoned that Graham and Roper

established that “children are constitutionally different from 

adults for purposes of sentencing.”14 Specifically, the Court in 

Miller noted that compared to adults, children lack maturity 

and have an underdeveloped sense of responsibility, are more 

vulnerable to outside influences and pressures, and have yet 

to fully develop their character. Because of these differences, 

the Court reasoned juveniles have “diminished culpability and 

greater prospects for reform.”15

Second, the Miller Court recognized prior Court jurisprudence requiring individualized decisionmaking in capital punishment cases.16 It then applied this jurisprudence to the imposition of life imprisonment on juveniles by reasoning that a 

life imprisonment without parole sentence for a juvenile is 

tantamount to a death sentence for an adult.17 According to the 

Court, because the Eighth Amendment when applied to adults 

requires individualized sentencing prior to the imposition of a 

death sentence, the Eighth Amendment when applied to juveniles requires individualized sentencing prior to the imposition 

of a sentence of life imprisonment without parole.18

12 Graham, supra note 2.

13 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

14 Miller, supra note 3, 132 S. Ct. at 2464.

15 Id.

16 Miller, supra note 3. See, Sumner v. Shuman, 483 U.S. 66, 107 S. Ct. 

2716, 97 L. Ed. 2d 56 (1987); Eddings v. Oklahoma, 455 U.S. 104, 102 S. 

Ct. 869, 71 L. Ed. 2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 

2954, 57 L. Ed. 2d 973 (1978); Woodson v. North Carolina, 428 U.S. 280, 

96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).

17 Miller, supra note 3.

18 Id.
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The threshold question presented to us in this appeal is 

whether the holding in Miller applies to Mantich so that his 

sentence must be vacated and this cause remanded for a new 

sentencing hearing. We held in State v. Castaneda19 that life 

imprisonment sentences imposed on juveniles in Nebraska 

prior to Miller were mandatory sentences and were equivalent 

to life imprisonment without parole. But Mantich’s life imprisonment sentence was imposed and his first degree murder 

conviction became final years before Miller was decided. He is 

entitled to be resentenced only if the rule announced in Miller

applies retroactively to cases that became final prior to its pronouncement, i.e., cases on collateral review.

(a) Retroactivity Test

In its 1989 decision in Teague v. Lane,

20 the U.S. Supreme 

Court set forth a test for determining when a new rule of constitutional law will be applied to cases on collateral review. 

Before announcing the test, however, the Court emphasized 

that “the question ‘whether a decision [announcing a new rule 

should] be given prospective or retroactive effect should be 

faced at the time of [that] decision.’”21 The Court explained 

that “[r]etroactivity is properly treated as a threshold question, 

for, once a new rule is applied to the defendant in the case 

announcing the rule, evenhanded justice requires that it be 

applied retroactively to all who are similarly situated.”22

According to Teague, “new rules should always be applied 

retroactively to cases on direct review, but . . . generally they 

should not be applied retroactively to criminal cases on collateral review.”23 The rationale for the distinction is that collateral 

review is not designed as a substitute for direct review and that 

19 State v. Castaneda, ante p. 289, ___ N.W.2d ___ (2014).

20 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

21 Id., 489 U.S. at 300, quoting Paul J. Mishkin, Foreword: The High Court, 

the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 

(1965).

22 Teague, supra note 20, 489 U.S. at 300.

23 Id., 489 U.S. at 303.
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the government has a legitimate interest in having judgments 

become and remain final.24

Teague articulated two exceptions to the general rule of 

nonretroactivity for cases on collateral review. First, a new 

rule should be applied retroactively if it “places ‘certain kinds 

of primary, private individual conduct beyond the power of 

the criminal law-making authority to proscribe.’”25 Second, 

a new rule should be applied retroactively if it “requires the 

observance of ‘those procedures that . . . are “implicit in the 

concept of ordered liberty.”’”26 The ultimate holding in Teague

was this: “Unless they fall within an exception to the general 

rule, new constitutional rules of criminal procedure will not be 

applicable to those cases which have become final before the 

new rules are announced.”27

[3] Since Teague, the Court has refined the retroactivity 

analysis. The most significant refinement occurred in Schriro 

v. Summerlin.

28 The issue in Schriro was whether the Court’s 

decision in Ring v. Arizona29 applied retroactively to a death 

penalty case on federal habeas review. In deciding this, the 

Court stated:

When a decision of this Court results in a “new rule,” 

that rule applies to all criminal cases still pending on 

direct review. . . . As to convictions that are already final, 

however, the rule applies only in limited circumstances. 

New substantive rules generally apply retroactively. This 

includes decisions that narrow the scope of a criminal 

24 See Teague, supra note 20.

25 Id., 489 U.S. at 307, quoting Mackey v. United States, 401 U.S. 667, 91 S. 

Ct. 1160, 28 L. Ed. 2d 404 (1971) (Harlan, J., concurring in part, and in 

part dissenting).

26 Id., quoting Mackey, supra note 25 (quoting Palko v. Connecticut, 302 

U.S. 319, 58 S. Ct. 149, 82 L. Ed. 2d 288 (1937), overruled on other 

grounds, Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 

707 (1969)).

27 Teague, supra note 20, 489 U.S. at 310.

28 Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519, 159 L. Ed. 2d 442 

(2004).

29 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
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statute by interpreting its terms, . . . as well as constitutional determinations that place particular conduct or 

persons covered by the statute beyond the State’s power 

to punish. . . . Such rules apply retroactively because 

they “necessarily carry a significant risk that a defendant 

stands convicted of ‘an act that the law does not make 

criminal’” or faces a punishment that the law cannot 

impose upon him.30

The Court explained that although it had sometimes referred 

to rules of this type as “falling under an exception to Teague’s 

bar on retroactive application of procedural rules, . . . they are 

more accurately characterized as substantive rules not subject 

to the bar.”31

[4] Schriro further explained that new “rules of procedure” 

generally do not apply retroactively.32 The only exception is 

those rules that are “‘“watershed rules of criminal procedure” 

implicating the fundamental fairness and accuracy of the criminal proceeding.’”33 This class of rules is extremely narrow.34

In 2008, the U.S. Supreme Court ruled that the Teague/

Schriro retroactivity analysis it applies in federal habeas 

actions is not binding upon state courts when deciding issues 

of retroactivity under state law.35 In doing so, the Court noted 

that a state court is “‘free to choose the degree of retroactivity 

or prospectivity which [it] believe[s] appropriate to the particular rule under consideration, so long as [it] give[s] federal 

constitutional rights at least as broad a scope as the United 

States Supreme Court requires.’”36 In other words, states can 

30 Schriro, supra note 28, 542 U.S. at 351-52 (citations omitted).

31 Id., 542 U.S. at 352 n.4 (citations omitted).

32 Id., 542 U.S. at 352.

33 Id.

34 Id.

35 Danforth v. Minnesota, 552 U.S. 264, 128 S. Ct. 1029, 169 L. Ed. 2d 859 

(2008).

36 Id., 552 U.S. at 276, quoting State v. Fair, 263 Or. 383, 502 P.2d 1150 

(1972).
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give broader effect to new rules than is required by the Teague/

Schriro test.37

We have adhered to the Teague/Schriro test in the two 

cases in which we have addressed the retroactivity of a new 

rule announced by the U.S. Supreme Court to cases on state 

postconviction review,38 and we see no reason to depart from 

that analysis.

(b) Court Precedent

It is very clear that Miller announced a new rule. This is 

so because the rule announced in Miller was not dictated by 

precedent existing at the time Mantich’s first degree murder 

conviction became final.39 The new rule can apply to Mantich, 

who is before this court on collateral review, if it is either a 

substantive rule or a watershed rule of criminal procedure.40

According to Schriro, the key distinction in the retroactivity analysis is whether the new rule is substantive or procedural.41 Schriro held that substantive rules include those that 

(1) narrow the scope of a criminal statute by interpreting its 

terms or (2) place particular conduct or persons covered by 

the statute beyond the State’s power to punish. The second 

category encompasses “rules prohibiting a certain category of 

punishment for a class of defendants because of their status or 

offense.”42 Substantive rules apply retroactively because they 

carry a “‘significant risk’” that a defendant stands convicted 

37 Danforth, supra note 35.

38 State v. Lotter, 266 Neb. 245, 664 N.W.2d 892 (2003); State v. Reeves, 234 

Neb. 711, 453 N.W.2d 359 (1990), cert. granted and judgment vacated

498 U.S. 964, 111 S. Ct. 425, 112 L. Ed. 2d 409 (1990).

39 See Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 

(2007).

40 Id.; Schriro, supra note 28.

41 Schriro, supra note 28.

42 Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 106 L. Ed. 2d 256 

(1989), abrogated on other grounds, Atkins v. Virginia, 536 U.S. 304, 122 

S. Ct. 2242, 153 L. Ed. 2d 335 (2002).
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of “‘“an act that the law does not make criminal”’” or “faces a 

punishment that the law cannot impose upon him.”43

It is clear that categorical bans on sentences are substantive rules.44 Rules forbidding imposition of the death sentence 

on persons with mental retardation45 or on juveniles46 and a 

rule forbidding life imprisonment for a juvenile convicted 

of a nonhomicide offense47 have been considered substantive rules.48

In comparison, rules that “regulate only the manner of determining the defendant’s culpability are procedural.”49 They do 

not produce a class of persons convicted of conduct the law 

does not make criminal, but merely raise the possibility that 

someone convicted with use of the invalidated procedure might 

have been acquitted otherwise.50

In the sentencing context, the Court has found a number of 

rules to be procedural. In Schriro v. Summerlin,

51 the Court 

addressed whether the rule announced in Ring v. Arizona52

applied retroactively to cases on collateral review. Ring held 

that a jury, and not a judge, had to find an aggravating 

circumstance necessary for imposition of the death penalty. 

Schriro held this rule was procedural, noting it merely “altered 

the range of permissible methods for determining whether a 

43 Schriro, supra note 28, 542 U.S. at 352, quoting Bousley v. United States, 

523 U.S. 614, 118 S. Ct. 1604, 140 L. Ed. 2d 828 (1998).

44 See Penry, supra note 42.

45 Atkins, supra note 42.

46 Roper, supra note 13.

47 Graham, supra note 2.

48 See, e.g., Allen v. Buss, 558 F.3d 657 (7th Cir. 2009) (Atkins); Nixon v. 

State, 2 So. 3d 137 (Fla. 2009) (Atkins); McStoots v. Com., 245 S.W.3d 

790 (Ky. App. 2007) (Roper); Duncan v. State, 925 So. 2d 245 (Ala. Crim. 

App. 2005) (Roper); People v. Rainer, No. 10CA2414, 2013 WL 1490107 

(Colo. App. Apr. 11, 2013) (Graham); Bonilla v. State, 791 N.W.2d 697 

(Iowa 2010) (Graham).

49 Schriro, supra note 28, 542 U.S. at 353.

50 Schriro, supra note 28.

51 Id.

52 Ring, supra note 29.
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defendant’s conduct is punishable by death.”53 It noted that 

rules that “allocate decisionmaking authority in this fashion 

are prototypical procedural rules.”54 Notably, however, the 

Court stated:

This Court’s holding that, because [a state] has made 

a certain fact essential to the death penalty, that fact 

must be found by a jury, is not the same as this Court’s

making a certain fact essential to the death penalty. 

The former was a procedural holding; the latter would 

be substantive.55

In Lambrix v. Singletary,

56 the Court addressed whether the 

rule announced in Espinosa v. Florida57 applied retroactively to 

cases on collateral review. Espinosa held that if a sentencing 

judge in a state that requires specified aggravating circumstances to be weighed against any mitigating circumstances at 

the sentencing phase of a capital trial is required to give deference to a jury’s advisory sentencing recommendation, then 

neither the jury nor the judge is constitutionally permitted to 

weigh invalid aggravating circumstances. Without extensive 

analysis, the Lambrix Court concluded this rule did not prohibit the imposition of capital punishment on a particular class 

of persons.

In Sawyer v. Smith,

58 the Court addressed whether the rule 

announced in Caldwell v. Mississippi59 applied retroactively 

to cases on collateral review. Caldwell held that the Eighth 

Amendment prohibits imposition of the death penalty by a 

sentencer that has been led to the false belief that the responsibility for determining the appropriateness of the sentence rests 

53 Schriro, supra note 28, 542 U.S. at 353.

54 Id.

55 Id., 542 U.S. at 354.

56 Lambrix v. Singletary, 520 U.S. 518, 117 S. Ct. 1517, 137 L. Ed. 2d 771 

(1997).

57 Espinosa v. Florida, 505 U.S. 1079, 112 S. Ct. 2926, 120 L. Ed. 2d 854 

(1992).

58 Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990).

59 Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 

(1985).
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elsewhere. The Sawyer Court concluded the rule was not retroactive, because it was simply a procedural rule “designed as an 

enhancement of the accuracy of capital sentencing.”60

(c) Miller and Other Jurisdictions

A number of jurisdictions have considered whether Miller

announced a rule that is to be applied retroactively. The results 

are varied. The primary point of dissension is whether the rule 

announced in Miller is substantive.

The Louisiana Supreme Court held in State v. Tate61 that the 

rule announced in Miller was a procedural one, largely because 

the Court in Miller specifically stated that “‘[o]ur decision 

does not categorically bar a penalty for a class of offenders or 

type of crime.’” Louisiana reasoned that Miller simply “altered 

the range of permissible methods” for determining whether 

a juvenile could be sentenced to life imprisonment without 

parole.62 In Com. v. Cunningham63 the Pennsylvania Supreme 

Court adopted similar reasoning, holding that “by its own 

terms, the Miller holding ‘does not categorically bar a penalty 

for a class of offenders.’” A U.S. district court in Virginia has 

also adopted this rationale.64

The Minnesota Supreme Court held in Chambers v. State65

that the rule announced in Miller was procedural and not 

substantive because it did not “eliminate the power of the 

State to impose the punishment of life imprisonment without the possibility of release upon a juvenile offender who 

has committed a homicide offense.” Instead, it reasoned 

that Miller simply requires “‘that a sentencer follow a certain process—considering an offender’s youth and attendant 

60 Sawyer, supra note 58, 497 U.S. at 244.

61 State v. Tate, No. 2012-OK-2763, 2013 WL 5912118 at *6 (La. Nov. 5, 

2013), quoting Miller, supra note 3.

62 Id.

63 Com. v. Cunningham, 81 A.3d 1, 10 (Pa. 2013), quoting Miller, supra

note 3.

64 Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068 (E.D. Va. Oct. 

16, 2013) (memorandum opinion).

65 Chambers v. State, 831 N.W.2d 311, 328 (Minn. 2013).
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characteristics—before imposing’” a sentence of life imprisonment without parole.66 The U.S. Court of Appeals for the 

11th and 5th Circuits and the Michigan Court of Appeals have 

all adopted similar reasoning.67 The 11th Circuit placed particular reliance on Penry v. Lynaugh.

68 In Penry, the Court held 

that a new rule “prohibiting a certain category of punishment 

for a class of defendants because of their status or offense” 

is retroactive, but only where a class cannot be subjected to 

the punishment “regardless of the procedures followed.”69 The 

11th Circuit reasoned that Miller is not substantive, because 

it merely altered the range of permissible methods for determining whether a juvenile’s conduct is punishable by life 

imprisonment without parole and did not completely forbid 

a jurisdiction from imposing a sentence of life imprisonment 

without parole.70

But at least four jurisdictions have reasoned that the rule 

announced in Miller is a substantive one, largely because it 

fits into the second category of substantive rules announced 

in Schriro. The Illinois Court of Appeals held in People v. 

Morfin71 that Miller was a substantive rule because it “mandates a sentencing range broader than that provided by statute 

for minors convicted of first degree murder.” A concurring 

opinion emphasized that the rule was substantive because 

Miller forbids an entire category of sentence—a mandatory 

sentence of life imprisonment for juveniles.72 The concurrence also reasoned that a new rule that did not prohibit a 

certain sentence in every case but prohibited the mandatory 

66 Id., quoting Miller, supra note 3.

67 See In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Craig v. 

Cain, No. 12-30035, 2013 WL 69128 (5th Cir. Jan. 4, 2013) (unpublished 

opinion); and People v. Carp, 298 Mich. App. 472, 828 N.W.2d 685 

(2012).

68 Penry, supra note 42.

69 Id., 492 U.S. at 330.

70 In re Morgan, supra note 67.

71 People v. Morfin, 2012 IL App (1st) 103568, ¶ 56, 981 N.E.2d 1010, 1022, 

367 Ill. Dec. 282, 294 (2012).

72 Morfin, supra note 71 (Sterba, J., specially concurring).
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imposition of that sentence was a substantive rule and not 

a procedural one.73 Similarly, in Jones v. Mississippi,

74 the 

Supreme Court of Mississippi reasoned that Miller was a 

substantive rule because it “explicitly foreclosed imposition 

of a mandatory sentence of life without parole on juvenile offenders.” It further reasoned that Miller required a 

substantive change in Mississippi law, because it required 

legislative modification of the existing law that had no provision for following the dictates of Miller. Very recently, the 

Supreme Judicial Court of Massachusetts held the Miller

rule was substantive because it “forecloses the imposition of 

a certain category of punishment—mandatory life in prison 

without the possibility of parole—on a specific class of 

defendants.”75 And the Supreme Court of Iowa in State v. 

Ragland76 recently held:

From a broad perspective, Miller does mandate a new 

procedure. Yet, the procedural rule for [an individualized 

sentencing] hearing is the result of a substantive change 

in the law that prohibits mandatory life-without-parole 

sentencing. Thus, the case bars states from imposing a 

certain type of punishment on certain people. . . . “Such 

rules apply retroactively because they ‘necessarily carry a 

significant risk that a defendant’ . . . faces a punishment 

that the law cannot impose upon him.”

The Iowa Supreme Court also emphasized an article written by 

constitutional scholar Erwin Chemerinsky in which he stated:

“There is a strong argument that Miller should apply 

retroactively: It says that it is beyond the authority of 

the criminal law to impose a mandatory sentence of life 

without parole. It would be terribly unfair to have individuals imprisoned for life without any chance of parole 

based on the accident of the timing of the trial.

73 Id.

74 Jones v. Mississippi, 122 So. 3d 698, 702 (Miss. 2013).

75 Diatchenko v. District Attorney for Suffolk Dist., 466 Mass. 655, 666, ___ 

N.E.2d ___, ___ (2013).

76 State v. Ragland, 836 N.W.2d 107, 115-16 (Iowa 2013), quoting Schriro, 

supra note 28.
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“. . . .

“. . . [T]he Miller Court did more than change procedures; it held that the government cannot constitutionally 

impose a punishment. As a substantive change in the law 

which puts matters outside the scope of the government’s 

power, the holding should apply retroactively.”77

Courts have also reached differing conclusions as to how 

the procedural posture of Miller affects the retroactivity analysis. Miller involved two defendants who were before the 

Court in separate but consolidated cases. Defendant Evan 

Miller was before the Court after his direct appeal from his 

criminal conviction was denied.78 But the other defendant, 

Kuntrell Jackson, was before the Court on collateral review; 

he sought relief after a state court dismissed his application 

for a writ of state habeas corpus.79 In announcing the new 

rule in Miller, the Court made no distinction between the 

procedural postures of the two defendants. Instead, it simply 

reversed both of the lower court judgments and remanded 

the causes “for further proceedings not inconsistent with 

this opinion.”80

At least three jurisdictions have reasoned that the Court’s 

equal treatment of the two defendants is a factor that must 

be considered in the retroactivity analysis. In Ragland, the 

Iowa Supreme Court noted that Jackson’s case was remanded 

so that Jackson could be given an individualized sentencing hearing and reasoned that “[t]here would have been no 

reason for the Court to direct such an outcome if it did not 

view the Miller rule as applying retroactively to cases on collateral review.”81 Ragland also noted that the dissent in Miller

77 Ragland, supra note 76, 836 N.W.2d at 117, quoting Erwin Chemerinsky, 

Chemerinsky: Juvenile Life-Without-Parole Case Means Courts Must Look 

at Mandatory Sentences, A.B.A. J. Law News Now (posted Aug. 8, 

2012), http://www.abajournal.com/news/article/chemerinsky_juvenile_lifewithout-parole_case_means_courts_must_look_at_sen/.

78 See Miller, supra note 3.

79 Id.

80 Miller, supra note 3, 132 S. Ct. at 2475.

81 Ragland, supra note 76, 836 N.W.2d at 116.
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suggested the majority’s decision would invalidate other cases 

across the nation and reasoned that the dissent would not have 

raised such a concern if the Court did not intend its holding 

to apply to cases on collateral review. In People v. Williams,

82

an Illinois appellate court found it “instructive” that the Court 

applied the Miller rule to Jackson when he was before the 

Court on collateral review. And another Illinois appellate 

court noted the “relief granted to Jackson in Miller tends to 

indicate that Miller should apply retroactively on collateral 

review.”83 Most recently, in Diatchenko v. District Attorney for 

Suffolk Dist.84 the highest court in Massachusetts reasoned that 

because the Court applied the rule to Jackson, “evenhanded 

justice requires that it be applied retroactively to all who are 

similarly situated.”

Other jurisdictions, however, conclude the Court’s treatment 

of Jackson is not a relevant factor in the retroactivity analysis. 

In Com. v. Cunningham,

85 the Pennsylvania Supreme Court 

noted that it was not clear the retroactivity issue was before 

the Court with respect to Jackson and that in the absence of 

a “specific, principled retroactivity analysis” by the Court, it 

would not deem the Court to have held the Miller rule applied 

retroactively just because the Court applied it to Jackson. 

Similarly, in People v. Carp,

86 the Michigan Court of Appeals 

reasoned that the “mere fact that the Court remanded Jackson 

for resentencing does not constitute a ruling or determination 

on retroactivity.” Carp further reasoned that the issue of retroactivity was not raised as to Jackson and that thus, the Court 

had no reason to address it.

A federal district court in Virginia has taken a slightly different approach. In Johnson v. Ponton,

87 the court reasoned 

82 People v. Williams, 2012 IL App (1st) 111145, ¶ 54, 982 N.E.2d 181, 197, 

367 Ill. Dec. 503, 519 (2012).

83 Morfin, supra note 71, ¶ 57, 981 N.E.2d at 1023, 367 Ill. Dec. at 295.

84 Diatchenko, supra note 75, 466 Mass. at 667, ___ N.E.2d at ___.

85 Cunningham, supra note 63, 81 A.3d at 9.

86 Carp, supra note 67, 298 Mich. App. at 518, 828 N.W.2d at 712.

87 Johnson, supra note 64.
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that although the U.S. Supreme Court stated in Teague v. 

Lane88 that the retroactivity analysis is a threshold question 

and a prerequisite for announcement of a new constitutional 

rule, it has forgone this analysis in at least one recent case. 

Specifically, in Padilla v. Kentucky,

89 a petitioner brought a 

collateral challenge to his conviction. In deciding Padilla, the 

Court announced a new constitutional rule and applied it to the 

defendant before it, but did not engage in a retroactivity analysis. Later, in Chaidez v. U.S.,

90 the Court expressly held that 

the rule it announced in Padilla did not apply retroactively to 

other cases on collateral review. Based on the Court’s actions 

in Padilla and Chaidez, the court in Johnson reasoned that 

the Court’s application of the Miller rule to Jackson was not 

dispositive of its intent to apply the Miller rule to all cases on 

collateral review.

(d) Resolution

Under the Teague/Schriro retroactivity analysis, the distinction between substance and procedure is important. But how 

the rule announced in Miller should be categorized is difficult, 

because it does not neatly fall into the existing definitions of 

either a procedural rule or a substantive rule.

As other courts have noted, the Miller rule certainly contains 

a procedural component, because it specifically requires that a 

sentencer follow a certain process before imposing the sentence 

of life imprisonment on a juvenile.91 And unlike the holdings 

in Graham v. Florida92 and Roper v. Simmons,

93 the Miller rule 

does not categorically bar a specific punishment; a State may 

still constitutionally sentence a juvenile to life imprisonment 

without parole under Miller.

88 Teague, supra note 20.

89 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 

(2010).

90 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

91 See, In re Morgan, supra note 67; Tate, supra note 61; Chambers, supra

note 65; Cunningham, supra note 63.

92 Graham, supra note 2.

93 Roper, supra note 13.
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But at the same time, the Miller rule includes a substantive 

component. Miller did not simply change what entity considered the same facts.94 And Miller did not simply announce a 

rule that was designed to enhance accuracy in sentencing.95

Instead, Miller held that a sentencer must consider specific, 

individualized factors before handing down a sentence of life 

imprisonment without parole for a juvenile. Effectively, then, 

Miller required a sentencer of a juvenile to consider new facts, 

i.e., mitigation evidence, before imposing a life imprisonment sentence with no possibility of parole. In our view, this 

approaches what the Court itself held in Schriro would amount 

to a new substantive rule: The Court made a certain fact (consideration of mitigating evidence) essential to imposition of a 

sentence of life imprisonment without parole.96 In other words, 

it imposed a new requirement as to what a sentencer must 

consider in order to constitutionally impose life imprisonment 

without parole on a juvenile.

And Miller itself recognized that when mitigating evidence is considered, a sentence of life imprisonment without parole for a juvenile should be rare. This is consistent 

with the underlying logic of Miller, based on Graham, that 

“‘[i]t is difficult even for expert psychologists to differentiate 

between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender 

whose crime reflects irreparable corruption.’”97 In essence, 

Miller “amounts to something close to a de facto substantive holding,”98 because it sets forth the general rule that life 

imprisonment without parole should not be imposed upon a 

juvenile except in the rarest of cases where that juvenile cannot be distinguished from an adult based on diminished capacity or culpability.

94 Compare Ring, supra note 29.

95 Compare Caldwell, supra note 59.

96 Schriro, supra note 28.

97 Graham, supra note 2, 560 U.S. at 73, quoting Roper, supra note 13.

98 The Supreme Court, 2011 Term—Leading Cases, 126 Harv. L. Rev. 276, 

286 (2012).
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The substantive aspect of the Miller rule is also evident 

when considered in light of the effect of Miller on existing 

Nebraska law. In response to Miller, the Nebraska Legislature 

amended the sentencing laws for juveniles convicted of first 

degree murder.99 The amendments changed the possible penalty for a juvenile convicted of first degree murder from a 

mandatory sentence of life imprisonment to a “maximum sentence of not greater than life imprisonment and a minimum 

sentence of not less than forty years’ imprisonment.”100 The 

Legislature also mandated that in determining the sentence 

for a juvenile convicted of first degree murder, the sentencing judge “shall consider mitigating factors which led to the 

commission of the offense.”101 A juvenile may submit any 

mitigating factors to the sentencer, including, but not limited to, age at the time of the offense, degree of impetuosity, 

family and community environment, ability to appreciate the 

risks and consequences of the conduct, intellectual capacity, and the results of a mental health evaluation.102 We view 

these as substantive changes to Nebraska law and requirements that sentencers consider new facts prior to sentencing 

a juvenile convicted of first degree murder. Most specifically, 

the fact that Miller required Nebraska to change its substantive punishment for the crime of first degree murder when 

committed by a juvenile from a mandatory sentence of life 

imprisonment to a sentence of 40 years’ to life imprisonment 

demonstrates the rule announced in Miller is a substantive 

change in the law.

Moreover, the entire rationale of Miller is that when a 

sentencing scheme fails to give a sentencer a choice between 

life imprisonment without parole and something lesser, the 

scheme is necessarily cruel and unusual. Here, it is undisputed that Mantich’s sentencer was denied that choice, and it 

99 2013 Neb. Laws, L.B. 44 (codified at Neb. Rev. Stat. § 28-105.02 (Supp. 

2013)).

100 § 28-105.02(1).

101 § 28-105.02(2).

102 Id.
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is the absence of that choice that makes the Miller rule more 

substantive than procedural. Further, we agree that the Miller

rule is entirely substantive when viewed as Massachusetts, 

Mississippi, and Illinois have—as a categorical ban on the 

imposition of a mandatory sentence of life imprisonment without parole for juveniles.103

We also find it noteworthy that the Court applied the rule 

announced in Miller to Jackson, who was before the Court 

on collateral review. Years ago, the Court stated that it would 

not announce or apply a new constitutional rule in a case 

before it on collateral review unless that rule would apply to 

all defendants on collateral review.104 The Court specifically 

adopted this policy in order to ensure that justice is administered evenhandedly.105 Although we recognize that the Court 

has strayed from this policy on one recent occasion,106 we 

are not inclined to refuse to apply the rule announced in 

Miller to a defendant before us on collateral review when 

the Court has already applied the rule to a defendant before 

it on collateral review. Evenhanded administration of justice 

is carried out only if Mantich, like Jackson, is entitled to the 

benefit of the new rule announced in Miller.107 As noted by 

the Supreme Court of Iowa, any other result would be “‘terribly unfair.’”108

[5] Because the rule announced in Miller is more substantive than procedural and because the Court has already applied 

that rule to a case on collateral review, we conclude that the 

rule announced in Miller applies retroactively to Mantich. 

Mantich’s life imprisonment sentence must be vacated, and the 

cause remanded for resentencing under § 28-105.02.

103 See, Diatchenko, supra note 75; Jones, supra note 74; Morfin, supra

note 71.

104Penry, supra note 42; Teague, supra note 20.

105 Id.

106 See Padilla, supra note 89.

107 See Diatchenko, supra note 75.

108Ragland, supra note 76, 836 N.W.2d at 117, quoting Chemerinsky, supra

note 77.
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2. Other Clai

In Mantich’s original appeal, he argued that his sentence 

of life imprisonment without parole was categorically invalid 

under Graham v. Florida.

109 Graham held that a juvenile convicted of a nonhomicide offense cannot be sentenced to life 

imprisonment without parole. Mantich invites us to extend this 

holding to a juvenile convicted of felony murder.

Because we find Mantich is entitled to be resentenced under 

the dictates of Miller, we do not reach this argument in this 

appeal. If Mantich, on remand, is resentenced to life imprisonment with no minimum term which permits parole eligibility, he may raise the Graham argument in an appeal from 

that sentence.

Likewise, in view of our disposition, we need not reach 

Mantich’s claim that his counsel was ineffective in failing to 

assert an Eighth Amendment challenge at his original sentencing and on direct appeal.

V. CONCLUSION

The rule announced in Miller applies retroactively to 

Mantich. We remand the cause with directions to grant postconviction relief by vacating his life imprisonment sentence 

and resentencing him pursuant to § 28-105.02.110

 Sentence vacated, and 

remanded for resentenc

109Graham, supra note 2.

110 See Castaneda, supra note 19.

Cassel, J., dissenting

I respectfully dissent. First, I believe the rule from Miller v. 

Alabama1 is a procedural rule that should not be applied retroactively on collateral review. Second, I would find Mantich’s 

other claimed errors to be without merit. Thus, I would affirm 

the decision of the district court.

1 Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 

(2012).
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RETROACTIVITY OF 

MILLER V. ALABAMA

As the majority observed, the rule announced in Miller does 

not fall conveniently into the existing definitions of either a 

procedural rule or a substantive rule. But I believe the better 

approach would be to join the majority of jurisdictions that 

have ruled on this issue and conclude that the rule announced 

in Miller is a procedural one.2

Unlike the rules announced in Graham v. Florida3 and 

Roper v. Simmons,

4 Miller did not categorically bar a specific punishment. The Miller Court specifically noted that 

its decision “mandate[d] only that a sentencer follow a certain process—considering an offender’s youth and attendant 

characteristics—before imposing a particular penalty.”5 Miller

simply does not fall into the narrow category of a substantive rule, because no juvenile sentenced to life imprisonment 

without parole in Nebraska “faces a punishment that the law 

cannot impose upon him.”6 Although the process by which a 

juvenile may be sentenced to life imprisonment without parole 

now changes based upon Miller, the ultimate sentence of life 

imprisonment without parole for a juvenile is still a legitimate 

sentence. The U.S. Supreme Court has never indicated that 

anything less than a full categorical ban on a sentence may be 

2 See, In re Morgan, 717 F.3d 1186 (11th Cir. 2013) (en banc); Holland v. 

Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL 6332731 (E.D. Ark. Dec. 

5, 2013); Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068 (E.D. 

Va. Oct. 16, 2013) (memorandum opinion); Geter v. State, 115 So. 3d 375 

(Fla. App. 2012); State v. Tate, No. 2012-OK-2763, 2013 WL 5912118 

(La. Nov. 5, 2013); People v. Carp, 298 Mich. App. 472, 828 N.W.2d 

685 (2012); Chambers v. State, 831 N.W.2d 311 (Minn. 2013); Com. v. 

Cunningham, 81 A.3d 1 (Pa. 2013); Craig v. Cain, No. 12-30035, 2013 

WL 69128 (5th Cir. Jan. 4, 2013) (unpublished opinion).

3 Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 

(2010).

4 Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).

5 Miller, supra note 1, 132 S. Ct. at 2471.

6 Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 

442 (2004).
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a new substantive rule, and in my view, we should decline to 

do so in the first instance.

I am not persuaded that the U.S. Supreme Court established 

a precedent of retroactive application of the Miller rule simply by applying the rule to a defendant before it on collateral 

review. A new rule is not made retroactive to cases on collateral review unless the Court holds it to be retroactive.7

 And 

a state can waive the Teague v. Lane8 retroactivity bar by not 

raising it.9 The Court likely did not address the retroactivity 

issue in Miller because the State of Arkansas did not argue 

that any new rule announced would not apply to Jackson, who 

was before the Court on collateral review. I do not believe 

that we should interpret silence as an affirmative holding that 

the Miller rule is to apply retroactively to defendants on collateral review. Further, I find it persuasive that the Court has 

recently demonstrated in Padilla v. Kentucky10 and Chaidez 

v. U.S.11 that its announcement of a new constitutional rule 

in a case before it on collateral review is not a determination of whether that rule should apply to all cases on collateral review.

In my view, the rule announced in Miller is not a “‘“watershed rule[] of criminal procedure” implicating the fundamental 

fairness and accuracy of the criminal proceeding.’”12 To qualify 

as a watershed rule, a new rule must both be necessary to 

prevent an impermissibly large risk of an inaccurate conviction and alter our understanding of the bedrock procedural 

principles essential to the fairness of a proceeding.13 The Court 

has repeatedly emphasized that the watershed exception is 

7 Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001).

8 Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

9 Schiro v. Farley, 510 U.S. 222, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994).

10 Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473, 176 L. Ed. 2d 284 

(2010).

11 Chaidez v. U.S., ___ U.S. ___, 133 S. Ct. 1103, 185 L. Ed. 2d 149 (2013).

12 Schriro, supra note 6, 542 U.S. at 355.

13 Whorton v. Bockting, 549 U.S. 406, 127 S. Ct. 1173, 167 L. Ed. 2d 1 

(2007).
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extremely narrow and, since Teague, has yet to find a new rule 

that fits within the exception.14 The only case that has ever satisfied this high threshold is Gideon v. Wainwright,

15 in which 

the Court held that counsel must be appointed for any indigent 

defendant charged with a felony.

The rule announced in Miller relates only to the sentencing stage of a criminal proceeding and, thus, cannot be said 

to be necessary to prevent an impermissibly large risk of an 

inaccurate conviction. In addition, it is not a rule announcing 

a “previously unrecognized bedrock procedural element that 

is essential to the fairness of a proceeding.”16 While the rule 

announced in Miller was important, it did not effect a sweeping change comparable to Gideon. These reasons further support not applying the rule announced in Miller retroactively to 

Mantich on collateral review.

Our judicial process favors the finality of judgments. As 

noted by the majority, Mantich’s life imprisonment sentence 

was imposed and became final long before the decision in 

Miller was announced. There is an important interest in the 

finality of judgments that must be respected. I agree with the 

assessment of another court that “applying Miller retroactively 

‘would undermine the perceived and actual finality of criminal 

judgments and would consume immense judicial resources 

without any corresponding benefit to the accuracy or reliability 

of the [underlying criminal case].’”17

At least to a certain degree, some of the minority of courts 

addressing whether the Miller decision was substantive or 

procedural have relied upon perceptions of fairness between 

those whose direct appeals were still pending and those whose 

cases had already been finally determined. This is a dangerous expansion of the power of judges, because it places no 

principled limit upon the scope of judicial power. While the 

distinction between procedural and substantive may be difficult 

14 Id. (citing cases).

15 Gideon v. Wainright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

16 Whorton, supra note 13, 549 U.S. at 421.

17 Geter, supra note 2, 115 So. 3d at 383-84.
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to apply, it affords a principled basis for decision. If a judge 

allows his or her perceptions of fairness to intrude, the decision 

ceases to be an application of law and becomes an application 

of the judge’s personal biases and preferences. In my view, 

the existing legal framework drives the answer to the question 

before this court and dictates that the change is procedural. As 

a judge, my role goes no further.

OTHER CLAIMS

Graham v. Florida Ar

In his original appeal, Mantich argued that his sentence of 

life imprisonment without parole was categorically invalid 

under Graham v. Florida.

18 Graham held that a juvenile convicted of a nonhomicide offense cannot be sentenced to life 

imprisonment without parole. Mantich asked us to extend this 

holding to a juvenile convicted of felony murder. I would find 

that Mantich’s postconviction claim based on Graham is not 

procedurally barred.

A motion for postconviction relief cannot be used to secure 

review of issues which were or could have been litigated on 

direct appeal, no matter how those issues may be phrased or 

rephrased.19 Graham was decided in 2010, long after this court 

affirmed Mantich’s conviction and life imprisonment sentence 

for first degree murder. Graham was the first case in which the 

U.S. Supreme Court imposed a categorical bar on life imprisonment sentences for a specific class of offenders. Mantich 

could not have asserted his Graham claim at trial or on direct 

appeal, because the Eighth Amendment jurisprudence at that 

time did not support a categorical bar on life imprisonment 

sentences.20 Therefore, it is not procedurally barred and its 

merits can be addressed.

The issue decided by the U.S. Supreme Court in Graham

was “whether the Constitution permits a juvenile offender to 

be sentenced to life in prison without parole for a nonhomicide 

18 Graham, supra note 3.

19 State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).

20 See State v. El-Tabech, 259 Neb. 509, 610 N.W.2d 737 (2000).
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crime.”21 The defendant was sentenced to life imprisonment, 

which carried no possibility of release except through executive clemency.22 The Court held, as a matter of first impression, 

that “for a juvenile offender who did not commit homicide 

the Eighth Amendment forbids the sentence of life without 

parole.”23 The Court specifically limited its holding to “only 

those juvenile offenders sentenced to life without parole solely 

for a nonhomicide offense.”24 The Court distinguished homicide cases, noting:

There is a line “between homicide and other serious 

violent offenses against the individual.” . . . Serious nonhomicide crimes “may be devastating in their harm . . . 

but ‘in terms of moral depravity and of the injury to the 

person and to the public,’ . . . they cannot be compared to 

murder in their ‘severity and irrevocability.’” . . . This is 

because “[l]ife is over for the victim of the murderer,” but 

for the victim of even a very serious nonhomicide crime, 

“life . . . is not over and normally is not beyond repair.” 

. . . Although an offense like robbery or rape is “a serious 

crime deserving serious punishment,” . . . those crimes 

differ from homicide crimes in a moral sense.

It follows that, when compared to an adult murderer, 

a juvenile offender who did not kill or intend to kill 

has a twice diminished moral culpability. The age of 

the offender and the nature of the crime each bear on 

the analysis.25

We have considered the scope of Graham in one prior 

case. State v. Golka26 involved a postconviction appeal by an 

offender who had been sentenced to two consecutive terms 

of life imprisonment for two first degree murders committed 

when he was 17 years old. His postconviction motion alleged 

21 Graham, supra note 3, 560 U.S. at 52-53.

22 Graham, supra note 3.

23 Id., 560 U.S. at 74.

24 Id., 560 U.S. at 63.

25 Id., 560 U.S. at 69 (citations omitted).

26 State v. Golka, 281 Neb. 360, 796 N.W.2d 198 (2011).
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that the sentences constituted cruel and unusual punishment 

in violation of the 8th and 14th Amendments to the U.S. 

Constitution and article I, § 9, of the Nebraska Constitution. 

That claim was rejected by the district court, and Graham 

was decided during the pendency of the appeal. In affirming 

the denial of postconviction relief, we agreed with two other 

state courts which had held that Graham does not preclude 

life imprisonment sentences for juvenile offenders convicted 

of murder.27

Mantich argues that his crime must be considered a “‘nonhomicide’” offense under Graham because there was no finding at trial or sentencing that he killed or intended to kill 

Thompson.28 He argues that he was at most a “minor participant” in the murder.29 He bases this argument primarily 

upon Enmund v. Florida30 and Tison v. Arizona,

31 both of 

which were appeals from death sentences. In Enmund, the 

U.S. Supreme Court held that the Eighth Amendment did not 

permit imposing “the death penalty on [a person] who aids 

and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, 

or intend that a killing take place or that lethal force will be 

employed.”32 In Tison, the Court held that “major participation 

in the felony committed, combined with reckless indifference 

to human life, is sufficient to satisfy the Enmund culpability requirement” for imposition of the death penalty.33 Both 

Enmund and Tison addressed the issue of when a murderer’s 

conduct was sufficiently culpable to warrant imposition of the 

maximum penalty of death. Although the Court in Graham

27 Id. (citing Jackson v. Norris, 2011 Ark. 49, 378 S.W.3d 103 (2011), 

reversed, Miller, supra note 1; State v. Andrews, 329 S.W.3d 369 (Mo. 

2010)).

28 Brief for appellant at 22.

29 Id. at 21.

30 Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 

(1982).

31 Tison v. Arizona, 481 U.S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).

32 Enmund, supra note 30, 458 U.S. at 797.

33 Tison, supra note 31, 481 U.S. at 158.
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cited Enmund in support of its reasoning with respect to relative culpability, I do not interpret that citation as permitting a 

homicide to be considered a “nonhomicide” offense for purposes of sentencing, as Mantich urges.

Admittedly, the reasoning in Miller v. Alabama34 offers 

some support for Mantich’s argument. As noted, in Miller, the 

Court reasoned that because individualized sentencing was 

required for adults in cases involving imposition of the death 

penalty, the greatest possible penalty imposed upon an adult, 

individualized sentencing was also required for juveniles in 

cases involving imposition of the penalty of life imprisonment 

without parole, the greatest possible penalty imposed upon 

a juvenile. Mantich argues that because the Court equated 

death for adults with life imprisonment for juveniles in one 

context, all of the Court’s previous requirements for constitutional imposition of the death penalty on adults now apply to 

constitutional imposition of life imprisonment without parole 

on juveniles. Particularly, he contends that the Enmund/Tison

rationale is now directly applicable to him and that he cannot 

be sentenced to the greatest possible punishment available 

because there has been no showing that he killed or intended 

to kill.

The record contains some evidence concerning intent to kill. 

During Mantich’s sentencing hearing, the court addressed the 

question of who pulled the trigger and stated:

You admitted on two separate occasions separated by 

a month that you in fact fired the shot which killed 

. . . Thompson.

The admission you made directly after the incident and 

particularly coupled with the admission to law enforcement personnel a month later with thoughts, feelings, 

and corroboration which would go along with the murder 

of someone certainly strongly suggests that you in fact 

pulled the trigger. The murder of . . . Thompson at pointblank range by putting a gun against his head and firing it 

is brutal beyond description and cold. . . .

34 Miller, supra note 1.
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You murdered a blameless person . . . Mantich. One 

who had every right and expectation to lead his life without being subjected to a mindless, violent death carried 

out by you.

And on direct appeal, with regard to the insufficient evidence 

claim, we wrote:

The facts taken in the light most favorable to the State 

are such that a finder of fact could conclude beyond a 

reasonable doubt that Mantich committed murder while 

aiding and abetting in the kidnapping and robbery of 

Thompson and used a firearm to commit a felony. There 

is sufficient evidence to demonstrate that Mantich aided 

and abetted the kidnapping and robbery perpetrated 

against Thompson. When Eona and Brunzo left the party 

and returned with the stolen van, Mantich joined them 

over the strong objections and physical restraint of his 

girl friend. Mantich testified that he heard Eona and 

Brunzo tell Thompson they were going to kill him, and 

Mantich watched as Eona and Brunzo repeatedly jabbed 

Thompson in the head with the barrels of their guns. 

Mantich’s statement to police was sufficient to establish 

that he was handed a gun, placed the gun against the back 

of Thompson’s head, and pulled the trigger.

Even if the jury was uncertain as to whether Mantich 

actually shot Thompson, the evidence supports the jury’s 

finding that Mantich aided and abetted in the kidnapping and robbery of Thompson. It was undisputed that 

Thompson was killed by someone in the van while the 

group was kidnapping, robbing, and terrorizing him. The 

group forcibly restrained Thompson with the express 

intent of robbing and terrorizing him. The evidence shows 

that Mantich encouraged these activities and participated 

in the verbal terrorization of Thompson. This evidence is 

sufficient to convict Mantich of felony murder and use of 

a weapon to commit a felony.35

35 State v. Mantich, 249 Neb. 311, 328-29, 543 N.W.2d 181, 193-94 (1996).
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Even if the record did not demonstrate that Mantich either 

killed or intended to kill, I would not extend the Court’s holding in Graham to a juvenile convicted of felony murder. At the 

time Mantich committed his crime, the sentence in Nebraska 

for first degree murder was either mandatory life imprisonment or death.36 Graham held that the Eighth Amendment 

prohibited sentencing a juvenile to the maximum penalty of 

life imprisonment without parole for the nonhomicide offense 

which the juvenile committed. That is a far different issue 

than whether the Eighth Amendment prohibits imposing the 

minimum sentence of life imprisonment without parole on 

a juvenile who committed first degree murder. As the Court 

noted in Graham, nonhomicide crimes “differ from homicide 

crimes in a moral sense.”37 I would urge that we join the other 

jurisdictions which have held that Graham has no application 

to a juvenile convicted of a homicide offense under a felony 

murder theory.38

Unconstitution

Disproportionate Cl

Unlike Mantich’s argument based on Graham, his claim 

that his life imprisonment sentence was unconstitutionally disproportionate to his crime could have been raised at the time 

of sentencing and on direct appeal. The constitutional principle of proportionality was well established at the time of 

Mantich’s first degree murder conviction.39 Because the issue 

was not raised at sentencing or on direct appeal, it is procedurally barred in this postconviction proceeding. However, I 

will address the merits of the issue in the context of Mantich’s 

claim that his trial and appellate counsel was ineffective in failing to raise it.

36 See Neb. Rev. Stat. §§ 28-105 (Reissue 1989) and 28-303 (Reissue 1995).

37 Graham, supra note 3, 560 U.S. at 69.

38 See, Arrington v. State, 113 So. 3d 20 (Fla. App. 2012); Jackson, supra note 

27; Bell v. State, 2011 Ark. 379, 2011 WL 4396975 (2011) (unpublished 

opinion).

39 See, Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 

(1983); Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed. 793 

(1910).
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Ineffectiveness of Tria

Appellate Coun

When a defendant was represented both at trial and on direct 

appeal by the same lawyers, generally speaking, the defendant’s first opportunity to assert an ineffective assistance of trial 

counsel claim is in a motion for postconviction relief.40 That is 

the circumstance here. The record shows that Mantich was represented at trial and on direct appeal by the same attorney. He 

alleged in his postconviction motion that his counsel was ineffective in failing to argue at sentencing and on direct appeal 

that a life imprisonment sentence would constitute cruel and 

unusual punishment.

In order to establish a right to postconviction relief based on 

a claim of ineffective assistance of counsel, the defendant has 

the burden, in accordance with Strickland v. Washington,

41 to 

show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense.42 In order 

to show prejudice, the defendant must demonstrate a reasonable probability that but for counsel’s deficient performance, 

the result of the proceeding would have been different.43 The 

two prongs of this test, deficient performance and prejudice, 

may be addressed in either order.44 The entire ineffectiveness 

analysis is viewed with the strong presumption that counsel’s actions were reasonable.45 Defense counsel is not ineffective for failing to raise an argument that has no merit.46

Accordingly, I will examine the merit of Mantich’s claim that 

his life imprisonment sentence is unconstitutionally disproportionate to his crime.

The Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the 

40 State v. McHenry, 268 Neb. 219, 682 N.W.2d 212 (2004).

41 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984).

42 State v. McGhee, 280 Neb. 558, 787 N.W.2d 700 (2010).

43 Id.

44 Id.

45 State v. Bazer, 276 Neb. 7, 751 N.W.2d 619 (2008).

46 State v. Vo, 279 Neb. 964, 783 N.W.2d 416 (2010).
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crime committed.”47 The U.S. Supreme Court has characterized this as a “‘narrow proportionality principle’”48 which 

“‘does not require strict proportionality between crime and 

sentence,’”49 but, rather, “‘forbids only extreme sentences that 

are “grossly disproportionate” to the crime.’”50 The Court has 

identified objective criteria which should guide an Eighth 

Amendment proportionality analysis, including “(i) the gravity 

of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and 

(iii) the sentences imposed for commission of the same crime 

in other jurisdictions.”51

But “intrajurisdictional and interjurisdictional analyses are 

appropriate only in the rare case in which a threshold comparison of the crime committed and the sentence imposed 

leads to an inference of gross disproportionality.”52 Courts 

must give “‘substantial deference to the broad authority that 

legislatures necessarily possess in determining the types and 

limits of punishments for crimes,’” bearing in mind that the 

Eighth Amendment “does not mandate adoption of any one 

penological theory” and “marked divergences both in underlying theories of sentencing and in the length of prescribed 

prison terms are the inevitable, often beneficial, result of the 

federal structure.”53 The “culpability of the offender” is also a 

factor in the analysis.54 In its most recent application of these 

47 Solem, supra note 39, 463 U.S. at 284.

48 Ewing v. California, 538 U.S. 11, 20, 24, 123 S. Ct. 1179, 155 L. Ed. 2d 

108 (2003), quoting Harmelin v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 

115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring 

in judgment). See, also, Solem, supra note 39.

49 Ewing, supra note 48, 538 U.S. at 23, quoting Harmelin, supra note 48 

(Kennedy, J., concurring in part and concurring in judgment).

50 Id.

51 Solem, supra note 39, 463 U.S. at 292.

52 Harmelin, supra note 48, 501 U.S. at 1005 (Kennedy, J., concurring in part 

and concurring in judgment). See, also, Ewing, supra note 48.

53 Harmelin, supra note 48, 501 U.S. at 999 (Kennedy, J., concurring in part 

and concurring in judgment).

54 Solem, supra note 39, 463 U.S. at 292.
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principles to a sentence of imprisonment, the U.S. Supreme 

Court in Ewing v. California55 upheld a sentence of 25 

years’ to life imprisonment for grand theft under California’s 

“three strikes law,” concluding that it was not “‘the rare 

case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross 

disproportionality.’”56

The same conclusion is inescapable here. First degree murder is the most serious criminal offense defined by Nebraska 

law. “[I]n terms of moral depravity and of the injury to the 

person and to the public,” other serious crimes do “not compare with murder.”57 Mantich received the minimum sentence 

which can be given to one convicted of first degree murder. 

Although he seeks to minimize his personal involvement in the 

events which led to the death of Thompson, we noted on direct 

appeal that “Mantich’s statement to police was sufficient to 

establish that he was handed a gun, placed the gun against the 

back of Thompson’s head, and pulled the trigger.”58 We further 

noted that the group robbed, terrorized, and forcibly restrained 

Thompson and that “Mantich encouraged these activities and 

participated in the verbal terrorization.”59

Mantich cites several state court decisions from other 

jurisdictions in support of his Eighth Amendment argument. 

But those cases are either distinguishable on the facts or otherwise unpersuasive. Considering the gravity of the offense 

and all of the relevant facts and circumstances, notwithstanding Mantich’s youth, there is no basis for a “threshold 

inference”60 that his sentence was grossly disproportionate 

to his crime. Because Mantich’s Eighth Amendment claim is 

55 Ewing, supra note 48.

56 Id., 538 U.S. at 30, quoting Harmelin, supra note 48 (Kennedy, J., 

concurring in part and concurring in judgment).

57 Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982 

(1977). See, also, Graham, supra note 3.

58 Mantich, supra note 35, 249 Neb. at 328, 543 N.W.2d at 194.

59 Id. at 329, 543 N.W.2d at 194.

60 See Graham, supra note 3, 560 U.S. at 93 (Roberts, J., concurring in 

judgment).
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without merit under either alternative formulation, his counsel was not ineffective in not asserting it at sentencing or on 

direct appeal.

CONCLUSION

To summarize, in my view, the rule announced in Miller is 

procedural and does not apply to Mantich on collateral review. 

I would find that Graham has no application to Mantich’s 

sentence of life imprisonment for first degree felony murder, 

a homicide, and that Mantich’s alternative claim that his sentence was grossly disproportionate to his crime is procedurally 

barred. Because these claims are without merit, Mantich’s trial 

and appellate counsel was not ineffective in failing to assert 

them. And because the files and records conclusively show that 

Mantich’s motion for postconviction relief is without merit, the 

district court did not err in denying the requested relief without 

conducting an evidentiary hearing. I would affirm the decision 

of the district court.

Heavican, C.J., joins in this dissen

State of Nebraska, appellee, v.

Eric A. Ramirez, appell

___ N.W.2d ___

Filed February 7, 2014. No. S-11-486.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the 

admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial 

discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules 

commit the evidentiary question at issue to the discretion of the trial court, an 

appellate court reviews the admissibility of evidence for an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a trial 

court’s decision is based upon reasons that are untenable or unreasonable or if its 

action is clearly against justice or conscience, reason, and evidence.

4. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court’s 

conclusions with regard to evidentiary foundation and witness qualification for an 

abuse of discretion.