Curtis Croft v. Tarry Williams

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3419
C URTIS C ROFT,
Applicant,
v.
TARRY WILLIAMS,
Respondent.
____________________
On Motion for an Order Authorizing the
District Court to Entertain a Second or Successive
Petition for Collateral Review.
____________________
S UBMITTED O CTOBER 31, 2014 — NOVEMBER 25, 2014
____________________
Before WOOD, Chief Judge, and F LAUM and W ILLIAMS, Cir-
cuit Judges.
WOOD, Chief Judge. Curtis Croft has come to this court for
a second time asking us to authorize him to pursue a succes-
sive petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. He contends that he has made a prima facie showing
that he satisfies the requirements of 28 U.S.C. § 2244(b)(2)(A)
for filing such an application. Croft relies primarily on the
Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455

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(2012), which held that the Eighth Amendment forbids sen-
tences of mandatory life in prison without parole for juvenile
offenders. Because he was seventeen when he committed
murder, aggravated kidnapping, and aggravated sexual as-
sault, Croft argues that his sentence of natural life impris-
onment without parole for the murder is unconstitutional
under Miller.
Croft acknowledges that he can prevail only if Miller,
which was decided after Croft was sentenced, applies
retroactively. He believes that he can surmount that hurdle.
He points out, correctly, that the Supreme Court applied the
holding of Miller in the companion case that was before the
Court on post-conviction review. See Miller, 132 S. Ct. at
2468–69. Our sister circuits are split on the retroactivity
question. At least four courts of appeals have concluded that
applicants similar to Croft have made prima facie showings
that Miller is retroactive, and those courts have permitted the
applicants to proceed with their successive petitions. See In
re Williams, 759 F.3d 66, 71–72 (D.C. Cir. 2014); Evans-García
v. United States, 744 F.3d 235, 238–40 (1st Cir. 2014); In re
Pendleton, 732 F.3d 280, 282–83 (3d Cir. 2013) (per curiam);
Johnson v. United States, 720 F.3d 720, 720–21 (8th Cir. 2013).
In at least two of these cases, the court’s decision to grant a
motion authorizing a successive habeas corpus petition was
based in part on the government’s concession that Miller has
retroactive effect. See Johnson, 720 F.3d at 721; Evans-García,
744 F.3d at 240. On the other side, two courts of appeals have
concluded that Miller has no retroactive effect. See In re
Morgan, 713 F.3d 1365, 1367–68 (11th Cir. 2013); Craig v. Cain,
No. 12-30035, 2013 WL 69128, at *1–2 (5th Cir. Jan. 4, 2013).
The Eleventh Circuit’s decision in Morgan produced three
dissenting votes from the court’s denial of rehearing en banc,

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No. 14-3419 3
see 717 F.3d 1186 (11th Cir. 2013); in a dissenting opinion,
Judge Wilson noted that the Department of Justice has
promulgated “a uniform policy” that Miller is indeed
retroactive on collateral review. See id. at 1197 (Wilson, J.,
dissenting). And the Fifth Circuit muddied the waters when
it decided, perhaps inconsistently with Craig, that the
applicant had made a prima facie showing that Miller has
retroactive effect but stated that it was not resolving the
question definitively. In re Simpson, 555 F. App’x 369, 371–72
(5th Cir. 2014).
Despite the robust debate occurring in the courts of ap-
peals on this question (and in the state courts—Illinois has
decided that Miller is retroactive, People v. Davis, 6 N.E.3d
709 (Ill. 2014), but Minnesota has gone the other way, Cham-
bers v. State, 831 N.W.2d 311 (Minn. 2013)), we need not re-
solve the question here. The reason is simple: Miller is inap-
plicable to Croft’s case. As the Appellate Court of Illinois
noted in affirming the second-stage dismissal of Croft’s peti-
tion for post-conviction relief, life sentences for murder are
discretionary under Illinois law. This is a critical difference
from the situation presented in Miller, which considered on-
ly “mandatory life-without-parole sentences for juveniles.”
Miller, 132 S. Ct. at 2464.
Croft recognizes the problem. He tries to avoid it with
the argument that the sentencing court treated his life term
as mandatory because it failed to address his age. Yet Croft
does not explain why such an omission would transform his
discretionary sentence into one that is mandatory. Moreover,
as the state appellate court observed, the sentencing court
explicitly stated that it had considered the presentence re-
port in Croft’s case. That report discussed his age. The appel-

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4 No. 14-3419
late court also underscored the discretionary nature of
Croft’s sentence when it reviewed the ample justifications
supporting it, including the fact that Croft’s crimes were
among the most brutal the court had ever seen. Thus, even if
this court were to hold that Miller applies retroactively on
collateral review, Croft would be unable to take advantage
of it.
Accordingly, we DENY authorization and DISMISS Croft’s
application for permission to file a successive collateral at-
tack.

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