Sentencing

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7^th Circuit Court of Appeals

Case Name: McKinley Kelly v. Richard Brown

Case No.: 17-1244

Officials: WOOD, Chief Judge, POSNER, and MANION, Circuit Judges.

Focus: Sentencing

McKinley Kelly has filed an application pursuant to 28 U.S.C. § 2244(b)(3), seeking authorization to file a second or successive petition for a writ of habeas corpus under § 2254. Kelly is serving a 110‐year sentence (two consecutive terms of 55 years) for two murders he committed when he was 16 years old. He will first be eligible for parole on February 1, 2050, when he will be 70 years old. Kelly wants to challenge his sentence under Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life sentences for juvenile offenders is unconstitutional), which was made retroactive by Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Miller applies not just to sentences of natural life, but also to sentences so long that, although set out as a term of years, they are in reality a life sentence. McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).

Because Kelly stated a possible claim to relief under Mil‐ ler, we invited the State to respond, which it has done. It argues that Kelly cannot state a claim to relief under Miller because his sentencing judge was afforded significant discretion by the Indiana Code to fashion an appropriate sentence and, in fact, considered Kelly’s age at the time of the offense in mitigation.   In resolving Kelly’s direct appeal, the Supreme Court of Indiana explained that IC § 35‐50‐2‐3 set a presumptive sentence of 55 years for murder and allowed a sentencing court to increase or decrease the presumptive sentence by no more than ten years for special circumstances. The court also was allowed to decide whether sentences for multiple convictions should run concurrently or consecutively. IC § 35‐38‐1‐7.1. Kelly v. State, 719 N.E. 2d 391, 394‐95 (Ind. 1999). In other words, Kelly’s sentence could have been as low as 45 years (55 minus 10 for each count, with the two sentences running concurrently) or as high as 130 years (55 plus 10 for each count, with the two sentences running consecutively).

Petition Denied

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