Submitted February 6, 2017
Motion for an Order Authorizing the District Court to
Entertain a Second or Successive Petition for Collateral
Wood, Chief Judge, Posner, and Manion, Circuit Judges.
MANION, CIRCUIT JUDGE.
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).
Kelly stated a possible claim to relief under
Miller, 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.
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).
Kelly's case, counsel argued his age in mitigation,
pressing hard on the fact that "[n]obody is the same
person when they're 25 or 35 or 45 or whatever, that they
were when they were 16, " and "[y]ou don't know
to what extent their conduct is the product of gross
immaturity or whether there is something more missing."
(Sent'g Tr. at 1326-27.) The sentencing judge identified
six aggravating circumstances:
(1)Kelly was on probation with the Juvenile Court at the time
of the crimes;
(2)Kelly fired the first shot and his shots killed the first
of three victims, setting the subsequent murders in motion;
(3)Kelly shot the victims at close range;
(4)the murders evince Kelly's lack of respect for human
(5)there was a risk that Kelly would commit future ...