## Missouri Court of Appeals Southern District en banc Filed October 15, 2014 IN RE: JERRELL BROOKS, ) ) Petitioner, ) ) vs. ) No. SD33306 ) MICHAEL BOWERSOX, Warden, ) South Central Correctional Center, ) ) Respondent. )

consolidated with IN RE: AARON ROBINSON, ) ) Petitioner, ) ) vs. ) No. SD33155 ) IAN WALLACE, Warden, ) Southeast Correctional Center, ) ) Respondent. )

ORIGINAL PROCEEDING ON PETITIONS FOR WRITS OF HABEA S CORPUS (Before Francis, C.J., Rahmeyer, J., Bates, J., Lyn ch, J., Burrell, J., Sheffield, J., and Richter, Special Judge)

WRITS DENIED PER CURIAM. Petitioner Jerrell Brooks and petition er Aaron Robinson were sentenced to life without parole for murders commit ted when they were seventeen years2

old. Both petitioned this Court for writs of habea s corpus claiming that Miller v.

Alabama , ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012), applie s retroactively and they must be resentenced with consideration of mitigating fac ts and circumstances. Because of the similarity of their claims, the cases were consolid ated for purposes of oral argument and are hereby consolidated for purposes of opinion. W e determine that petitioners’ initial sentencings cannot be disturbed because their claim s are procedurally barred, and accordingly their petitions are denied. Factual and Procedural Background A jury found Brooks guilty of first-degree murder occurring on September 21, 2002, under an accomplice theory, see section 565.020. 1 Brooks was a member of a group of four men that decided to kill Curtis Croth ers. This group arrived at the home where Crothers was staying and Brooks stood guard b y the door while all occupants of the home were killed. Brooks was seventeen years o ld at the time of the murders. The trial court sentenced Brooks to life without parole . His conviction was affirmed on direct appeal. State v. Brooks , 205 S.W.3d 281 (Mo.App. 2006). His Rule 29.15 2 motion for post-conviction relief was denied on June 25, 2009, and that decision was affirmed.

Brooks v. State , 333 S.W.3d 533 (Mo.App. 2011).

1 Brooks does not contend that his status as an acco mplice prevents him from being sentenced to life without parole. See Miller v. Alabama , 132 S.Ct. at 2477 (“[T]he question remains open w hether the Eighth Amendment prohibits the imposition of life w ithout parole upon a juvenile in [accomplice] circumstances.”) (Breyer, J., concurring). Therefo re we assume that both petitioners remain eligible for life without parole because “

Miller does not hold that a juvenile never can receive th is sentence for first-degree murder. It holds only that life without parole may not be imposed unless the sentencer is given an opportunity to consider the individual facts and ci rcumstances that might make such a sentence unjust or disproportionate.” State v. Hart , 404 S.W.3d 232, 234-35 (Mo. banc 2013).

2 Rule references are to Missouri Court Rules (2014)

.3 A jury found Robinson guilty of first-degree murder , see section 565.020, occurring on December 16, 2006. Robinson was invol ved in a fist fight with Karado Peebles. The fighting escalated, Robinson shot Pee bles five times, and Peebles died.

Robinson was also seventeen at the time this murder was committed and sentenced to life without parole. His conviction was affirmed on dir ect appeal. State v. Robinson , 330 S.W.3d 867 (Mo.App. 2011). Robinson filed a Rule 2 9.15 motion for post-conviction relief that remains pending, but the time for filin g an amended motion has expired. Both petitioners were found guilty of first-degree murder under section 565.020, which provides:

1. A person commits the crime of murder in the firs t degree if he knowingly causes the death of another person after deliberation upon the matter. 2. Murder in the first degree is a class A felony, and the punishment shall be either death or imprisonment fo r life without eligibility for probation or parole , or release except by act of the governor; except that, if a person has not reached his sixteenth birthday at the time of the commission of the crime, the punish ment shall be imprisonment for life without eligibility for proba tion or parole, or release except by act of the governor. Section 565.020 (emphasis added). This statute mak es it clear that a seventeen-year-old offender must be sentenced to “either death or impr isonment for life without eligibility for probation or parole[.]” Section 565.020.2. In 2005, after Brooks’ conviction but before Robinson’s conviction, the United States Sup reme Court held that a seventeenyear-old cannot be sentenced to death because the E ighth Amendment prohibits the death penalty for defendants who commit first-degree murd er at age seventeen years or

younger. See Roper v. Simmons , 543 U.S. 551 (2005). Accordingly, life without p arole became the only statutorily authorized punishment u nder section 565.020 when a juvenile commits first-degree murder. Both petitioners were sentenced to life without parole;4

Brooks because the sentencing judge chose that rath er than death 3 and Robinson because it was the only sentence available. In 2012, the Supreme Court of the United States hel d that the Eighth Amendment to the United States Constitution prevented a juven ile from being sentenced to life without parole without consideration of the mitigat ing facts and circumstances that might make that sentence unjust. Miller v. Alabama , ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012). Therefore, a sentencing scheme that provid es only death or life without parole violates the Eighth Amendment because it does not p ermit consideration of the mitigating factors of youth or the nature of their crimes. Bo th petitioners argue that Miller applies retroactively such that their cases must be remande d for resentencing that considers these mitigating factors in the same manner as done in State v. Hart , 404 S.W.3d 232 (Mo. banc 2013). The Supreme Court of Missouri applied Miller in Hart , a case on direct appeal, because the State conceded that Miller was applicable. Hart , 404 S.W.3d at 235 n.3. In contrast, the State alleges in these cases that the petitioners are procedurally barred from arguing that their sentences are uncons titutional because the argument was not made on direct appeal or in their motions for p ost-conviction relief.

Discussion “Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such res traint.” Rule 91.01(b). A petition for habeas corpus relief is limited to determining the facial validity of confinement. State ex rel. Nixon v. Jaynes , 73 S.W.3d 623, 624 (Mo. banc 2002). A writ of ha beas corpus may

3 The sentencing judge chose life without parole app arently because “the evidence in this case had [petitioner], at worse [sic], in the role of assist ing the murders by way of being a lookout as oppose d to carrying through on the actual circumstances of the killings.”5

not be utilized to raise a procedurally-barred clai m, that is, a claim that could have been raised, but was not, on direct appeal or in a post- conviction proceeding. Clay v. Dormire , 37 S.W.3d 214, 217 (Mo. banc 2000) (citing State ex rel. Simmons v. White , 866 S.W.2d 443, 446 (Mo. banc 1993)). However, a petitioner m ay be entitled to relief on a claim not raised in a post-conviction motion if the petitione r can assert (1) a claim of actual innocence, (2) a sentencing defect, 4 or (3) procedural default caused by something external to the defense and prejudice from the unde rlying error that worked to the petitioner’s actual and substantial disadvantage. State ex rel. Koster v. Koffman , 290 S.W.3d 126, 128-29 (Mo.App. 2009) (citing Brown v. State , 66 S.W.3d 721, 731 (Mo. banc 2002)).

Actual Innocence 5 In order to avoid the effects of procedural default , “the petitioner must show that it is more likely than not that ‘no reasonable juro r would have found the defendant guilty’ beyond a reasonable doubt” or “evidence of innocenc e coupled with constitutional error

at trial.” State ex rel. Nixon v. Jaynes , 63 S.W.3d 210, 216 (Mo. banc 2001) (citing Schlup v. Delo , 513 U.S. 298 (1995)). The petitioners contend th at under federal law, a challenge to a habeas petitioner’s sentence falls w ithin this exception where a “condition of eligibility [for the sentence] had not been met, ” quoting Sawyer v. Whitley , 505 U.S.

4 The parties refer to this exception as a “jurisdic tional defect.” The term “jurisdiction” is used co rrectly only in reference to a court’s subject matter or pe rsonal jurisdiction. State ex rel. Zinna v. Steele , 301 S.W.3d 510, 517 (Mo. banc 2010). However, it is se ttled that the imposition of a sentence beyond that permitted by the applicable statute or rule may be raised by way of a writ of habeas corpus. Id.

5 Petitioners refer to this as the “manifest injusti ce” exception. This exception has also been charac terized as the “miscarriage of justice” exception, Ferguson v. State , 325 S.W.3d 400, 409 (Mo.App. 2010), and a “gateway claim of innocence[,]” State ex rel. Koster v. McElwain , 340 S.W.3d 221, 228 (Mo.App. 2011). For clarity, we refer to this as the actual innocen ce standard, not to assert that petitioners would b e actually innocent if the exception was met, but rather to be st characterize that a habeas challenge appropriate ly falls within the “actual innocence” exception when a clai m of actual innocence is raised.6

333, 345 (1992). Based on Sawyer , the petitioners would contend that the exception is

met in this case because the condition of adulthood has not been met in order for the petitioners to be sentenced to mandatory life witho ut parole.

What Sawyer actually held was that a criminal defendant may be “actually innocent of death” where the petitioner can show by clear and convincing evidence that but for constitutional error at his sentencing hear ing, no reasonable juror would have found him eligible for the death penalty under the applicable state law. Sawyer , 505 U.S.

at 336. The Sawyer Court expressly stated that it rejected the “petitioner’s submission that the showing should extend beyond these element s of the capital sentence to the existence of additional mitigating evidence” becaus e to do so would lower the actual innocence standard to that used in the cause-and-pr ejudice standard. Id. at 345. See also Schlup , 513 U.S. at 322 (“Explicitly tying the miscarriag e of justice exception to innocence thus accommodates both the systemic inter ests in finality, comity, and conservation of judicial resources, and the overrid ing individual interest in doing justice in the ‘extraordinary case.’”) and Clay , 37 S.W.3d at 218 (“manifest injustice under the ‘actual innocence’ standard applies only to the iss ue of guilt or innocence and is of no avail to claims of error committed during the sente ncing process.”). Therefore, Sawyer is inapplicable outside the context of a death sentenc e. Because neither petitioner contests the validity of their finding of guilt and neither was sentenced to death, this exception is

not met. Sentencing Defect Relief by means of a petition for habeas corpus is available where the petitioner can show that the court imposed a sentence in exces s of that authorized by law. Clay , 377

S.W.3d at 218. When a punishment is reduced or les sened after the time of commission of an offense and while a prosecution is “pending,” the accused is entitled to the advantage of the less severe punishment or sentence

. Merriweather v. Grandison , 904 S.W.2d 485, 486 (Mo.App. 1995). Where a case is no longer pending, the accused is entitled to the lesser sentence only where the sent encing defect is patent. Thomas v.

Dormire , 923 S.W.2d 533, 533-35 (Mo.App. 1996). Here, petitioners argue that discretionary life wit hout parole based upon consideration of mitigating circumstances is a less er sentence than mandatory life without parole and thus their mandatory sentences of life w ithout parole were beyond the authority of the sentencing court. Assuming withou t deciding this is correct, this sentencing defect, nevertheless, must be patent upo n the face of the record because Miller was decided after petitioners’ cases were no longer pending. A sentencing defect has been held to be patent where the reviewing court ne ed only look to the judgment and the

statute to determine that the court lacked authorit y. Thomas v. Kemna , 55 S.W.3d 487, 490 (Mo.App. 2001). In contrast, a defect has been held not to be patent where the statutory authority was not authorized simply by co urt interpretation. Thomas , 923 S.W.2d at 533-35. Here, petitioners’ claims are mo st similar to Thomas , in that their claims exist solely by subsequent court interpretat ion of the Eighth Amendment. No sentencing defect can be shown simply by reviewing the judgment and the statute because the petitioners remain eligible for life wi thout parole. Hart , 404 S.W.3d at 234- 35. Thus, any alleged sentencing defect is not pat ent on the face of the record. Cause and Prejudice [T]he petitioner can avoid the procedural default b y showing cause for the failure to timely raise the claim at an earlier jun cture and prejudice8 resulting from the error that forms the basis of th e claim. The cause of procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. To establish prejudice, the petitioner must show that the error he asserts worked to his actual and substantial disadvantage, infecting his entire tria l with error of constitutional dimensions.

Brown v. State , 66 S.W.3d 721, 726 (Mo. banc 2002) (internal cita tions and quotations omitted). “[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recogni zing it, does not constitute cause for a procedural default.” Murray v. Carrier , 477 U.S. 478, 486 (1986). In order to constitute “cause,” the omitted constitutional claim must be “ so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross , 468 U.S. 1, 16 (1984). Here, petitioners contend that “cause” exists becau se their claims are “novel”

under Ross in that there was no basis to argue for resentenci ng concerning the mitigating factors of youth before Miller . “Novel” is given a very limited definition in Ross . When the “Court has articulated a constitutional princip le that had not been previously recognized but which is held to have retroactive ap plication,” that claim will only be so novel such that there is cause for failing to raise the issue: (1) when the Court explicitly overrules its own precedent; (2) when the decision overturns a longstanding and widespread practice to which the Court has not spok en, but which a near-unanimous body of lower court authority has expressly approved; an d (3) when a decision disapproves a practice the Court arguably had sanctioned in prior cases. Ross , 468 U.S. at 17. First, petitioners use of Ross fails because the Supreme Court has not yet held t hat

Miller has retroactive application. 6 Second, none of the three circumstances set forth in

6 The petitioners contend that Miller decided the question of its own retroactivity beca use Jackson , which is Miller’s companion case, was before the Supreme Court on ha beas review. This assertion is flawed for9

Ross apply here. Miller did not overrule prior United States Supreme Court precedent. The Supreme Court expressly stated that the Miller “decision flows straightforwardly from our precedents: specifically, the principle of Roper , Graham ,[ 7 ] and our individualized sentencing cases that youth matters for purposes of meting out the law’s most serious punishments.” Miller , 132 S.Ct. at 2471. Therefore, the first circumst ance does not apply. Regarding the second circumstance, petitioners stat e, without citation to any authority, that the “majority of courts addressing this issue had rejected it.” Although

Ross does characterize the second circumstance as occur ring when a near-unanimous body of lower court

authority had approved the now unconstitutional pr actice, the

caselaw that Ross relied on makes it clear that whether there is a c lear break from the past is a function of how widespread the practice in gen eral is. Meaning, statutory authority is

relevant as well. The three circumstances set fort h in Ross were originally articulated in United States v. Johnson , 457 U.S. 537, 554 (1982). In Johnson , the Court contemplated the retroactivity of a prior case, Payton v. New York , 445 U.S. 573, 599 (1980). The Court found that there was no clear br eak from the past in Payton because only twenty-four states had found the practice to b e constitutional. Johnson , 457 U.S. at 554. Of the jurisdictions in Payton where the practice was not accepted, four states h ad

two reasons. First, Miller is silent as to retroactivity and “a new rule is n ot ‘made retroactive to cases on collateral review’ unless the Supreme Court holds i t to be retroactive.” Tyler v. Cain , 533 U.S. 656, 663 (2001). Second, because it is not addressed in any manner in Miller , it appears that the State of Arkansas did not assert that Jackson was procedurally barred from raising his claim. The State of Arkansas lik ely chose not to pursue such an argument because the ap plicable state law would not merit the claim. Inde ed, in Arkansas, a void or illegal sentence, as defined by Arkansas state law, is subject to challenge at any time. Thomas v. State , 79 S.W.3d 347, 354 (Ark. 2002). See also Hobbs v. Gordon , 434 S.W.3d 364, 369 (Ark. 2014) (holding that, based on Thomas , a Miller claim is cognizable in habeas even where it was no t raised on direct appeal or in a motion for post-conviction relief).

7 Graham v. Florida , 560 U.S. 48 (2010) (holding that a sentence of li fe imprisonment without parole for a non-homicide juvenile offender violates the Eighth Amendment).10

prohibited the practice by statute. Payton , 445 U.S. at 599. Similarly, the Miller court noted that only twenty-nine jurisdictions made life without parole mandatory for juveniles who commit first-degree murder. Miller , 132 S.Ct. at 2473. This is not the kind of near-unanimity necessary in order for the p etitioners to show that there was no reasonable basis for them to challenge their senten ces. Therefore, the second circumstance does not apply. Finally, mandatory life without parole has not been sanctioned by the Supreme Court of the United States in the past. 8 As stated above, the Miller decision was a direct result of prior Supreme Court precedent regarding t he procedural rules for sentencing juveniles. Therefore, the third circumstance does not apply. Because the petitioners meet no exception to the procedural bar, their sentences cannot be disturbed.

Decision Petitioners’ petitions seeking writs of habeas corp us are denied.

8 Petitioners contend that their claim is novel beca use Missouri had previously found this sentencing scheme to be constitutional in State v. Andrews , 329 S.W.3d 369, 377 (Mo. banc 2010). The standar d set forth in Ross is a function of precedent as determined by the Su preme Court of the United States, not the Supreme Court of Missouri, because the Supreme Cour t of the United States is the highest authority on matters of federal law. See Oregon v. Hass , 420 U.S. 714, 719 (1975).