[00:00:01] Speaker 01: Good morning and may it please the court. [00:00:03] Speaker 01: My name is Jeremy Potashnik. [00:00:04] Speaker 01: I represent petitioner appellant Sarah Johnson. [00:00:07] Speaker 01: I'd like to try to reserve two minutes for rebuttal and I'll watch the clock. [00:00:11] Speaker 01: Sarah Johnson's juvenile life without parole sentence is disproportionate under the Eighth Amendment, and she's entitled to habeas relief. [00:00:19] Speaker 01: I want to make three broad points. [00:00:21] Speaker 01: First, in Jones v. Mississippi, the Supreme Court recognized and did not overrule Miller and Montgomery's substantive rule that life without parole is disproportionate for a child whose crime reflects unfortunate yet transient immaturity. [00:00:34] Speaker 02: Counselor, I appreciate where you're going, and I'm going to stop you right at first because you'll find that I have this propensity to do this. [00:00:45] Speaker 02: What's my review point here? [00:00:48] Speaker 02: What am I looking at? [00:00:50] Speaker 02: I can't grant your petition. [00:00:53] Speaker 02: I have to look at what the Supreme Court of Idaho did, don't I? [00:01:01] Speaker 02: After I look at what the Supreme Court of Idaho did, then I have to say, what? [00:01:08] Speaker 02: What's my standard that I use on what they did? [00:01:11] Speaker 01: Well, the threshold standard is whether or not the Idaho Supreme Court adjudicated the substantive Eighth Amendment claim under EDPA. [00:01:19] Speaker 02: Well, let me ask you, are you saying they didn't adjudicate the substantive claim? [00:01:26] Speaker 01: I am saying that, Your Honor. [00:01:27] Speaker 02: What are you going to do with their language which says, and I quote, the requirement to hold such a hearing gives effect to Miller's substantive holding that life without parole is an excessive sentence for children whose crimes reflect transit immaturity. [00:01:45] Speaker 01: Your Honor, that's simply a correct statement of law. [00:01:47] Speaker 02: Well, but that says the requirement in this, therefore we're finding that what we did, the requirement to hold the hearing, is enough. [00:01:58] Speaker 01: Your Honor, that statement is simply saying that the purpose of the procedural requirement under Miller Montgomery is to give effect to the substantive right. [00:02:06] Speaker 01: It's not saying, though, and the Idaho Supreme Court didn't purport to be saying that that is the only thing that gives effect to the substantive right. [00:02:12] Speaker 01: Another thing that gives effect to the substantive right is a petitioner or a defendant bringing up... That's your argument. [00:02:19] Speaker 02: But if, in fact, they did address the substantive right, then I have a standard of review to apply. [00:02:26] Speaker 02: And my standard of review to apply is... [00:02:31] Speaker 01: Your honor, if they address the claim, then you would look to whether it's contrary to clearly established law. [00:02:38] Speaker 01: And even if they did address the claim, it would be contrary to clearly established law. [00:02:42] Speaker 01: But I want to go back to this threshold question, because before the Idaho Supreme Court said that, it characterized the arguments Sarah was bringing. [00:02:50] Speaker 01: And it said, quote, that the district court sentenced her without adequate consideration of mitigation arguments based on youth. [00:02:56] Speaker 01: That's simply a procedural claim about what the sentencing court did. [00:03:00] Speaker 01: It's not the substantive claim, which is whether or not she is permanently incorrigible or irreparably corrupt. [00:03:07] Speaker 03: So on the procedural claim, you agree that Miller and Jones and Montgomery [00:03:15] Speaker 03: They don't apply procedurally where there's discretion. [00:03:20] Speaker 03: It's not a mandatory life without the possibility of parole, right? [00:03:24] Speaker 03: So you agree that that doesn't clearly establish that procedurally there would be anything wrong with giving life without parole in these circumstances. [00:03:32] Speaker 01: Your Honor, we agree that we're no longer pursuing a procedural claim in these circumstances because the Idaho Supreme Court or the Idaho Sentencing Court did have discretion to sentence Saratoga. [00:03:41] Speaker 03: But can you point me to language that talks about the substantive claim that is given by the Supreme Court because [00:03:50] Speaker 03: When I read Miller and the other cases, it doesn't sound like the substantive bar is very high. [00:03:56] Speaker 03: It basically sort of ties the substantive bar back into the procedural bar and says the degree of procedure Miller would articulate it in order to implement its substantive guarantee. [00:04:07] Speaker 03: It seems like as long as the substantive guarantee is provided, then largely, or excuse me, the procedural guarantee is provided, then largely the substantive guarantee is also. [00:04:19] Speaker 01: I don't think that's right, Your Honor, because the language I would point to you is the language in Montgomery, which the court in Jones called, quote, the key paragraph of Montgomery. [00:04:27] Speaker 01: This is at footnote two of Jones. [00:04:29] Speaker 01: And that language is states are not free to sentence a child whose crime reflects transient immaturity to life without parole. [00:04:35] Speaker 01: To the contrary, Miller established that this punishment is disproportionate under the Eighth Amendment. [00:04:40] Speaker 01: Now, I think it's rare in an EDPA case when you're looking at whether or not something is clearly established for the Supreme Court to literally have said that the exact proposition I need is established. [00:04:51] Speaker 01: And so that's why even if you think that the Idaho Supreme Court did adjudicate Sarah's substantive claim, which we don't think she did, but even if you find that, its adjudication was contrary to that clearly established language in Jones quoting Montgomery. [00:05:04] Speaker 00: What do you do with the line in Jones that says a state's discretionary sentencing system is both constitutionally necessary and constitutionally sufficient? [00:05:12] Speaker 00: So, I mean, on the substantive side, you know, I'm digging through these cases trying to figure out, well, what is that substantive measure? [00:05:19] Speaker 00: What is the substantive test? [00:05:20] Speaker 00: And all of the direction that I'm reading in those cases is did the trial court, the sentencing court, have the ability to consider all the factors and weigh age in the sentencing decision, and then did it? [00:05:34] Speaker 00: do so. [00:05:35] Speaker 00: And here we have indication from the sentencing record that both of those things were true, that the sentencing court had the ability to and did consider the evidence of Ms. [00:05:46] Speaker 00: Johnson's age. [00:05:47] Speaker 00: So I come back to this sentence of the state's discretionary sentencing system is both constitutionally necessary and constitutionally sufficient and what's missing. [00:05:56] Speaker 01: Your Honor, I think that sentence has to be read in the context of Jones and the question presented there was whether the court would, quote, add still more procedural requirements to what it already held in Miller and Montgomery. [00:06:07] Speaker 01: So discretion is necessary and sufficient as a procedural matter. [00:06:12] Speaker 01: because and the court went through the history of the Eighth Amendment that the amendment simply doesn't impose additional procedural requirements in most cases on state courts. [00:06:22] Speaker 01: It leaves it to the state courts to devise rules however they see fit. [00:06:28] Speaker 01: But that doesn't mean the underlying substantive rules aren't still there. [00:06:32] Speaker 00: I think that's a reasonable argument because it is fair that in Jones the case was not presented with a substantive challenge. [00:06:38] Speaker 00: It was a pure procedural challenge. [00:06:39] Speaker 01: Right, as the court said. [00:06:40] Speaker 00: But then we have HELM, which is our decision, a recent decision, where I think we blur that line and we're bound by HELM. [00:06:48] Speaker 01: Certainly, but I would point out that in Helm, the court did clarify that, quote, Miller protects underlying substantive limitations. [00:06:55] Speaker 01: So I think the court in Helm was still recognizing that there are underlying substantive limitations, and also point out that Helm was a purely procedural challenge. [00:07:02] Speaker 01: So it also didn't present the substantive question. [00:07:05] Speaker 01: And I would direct this court, I think, to the North Carolina Supreme Court's decision in state versus Kelleher, which is informative. [00:07:12] Speaker 01: The case presents almost as a thought experiment there because the sentencing court in that case did find, as a factual matter, that the defendant wasn't permanently incorrigible. [00:07:21] Speaker 01: and yet still sentence the defendant to life without parole. [00:07:24] Speaker 01: And the North Carolina Supreme Court, consistent with most state courts who have looked at this since Jones, have said, in light of that finding that the defendant is not permanently incorrigible, which is due deference as the sentencing court, that violates, it's an easy case, and that violates the substantive standard articulated in Miller, Montgomery, and Jones. [00:07:41] Speaker 00: So, I mean, another problem that I'm trying to figure out what to make up on the substantive argument is, [00:07:47] Speaker 00: It's clearly established that a sentencing court doesn't have to say anything in particular, doesn't have to make a finding on the record. [00:07:54] Speaker 00: So if that's true, but yet we're going to measure this by some sort of substantive standard, are we creating this sort of perverse situation where a sentencing court is in the best position by saying nothing at all? [00:08:06] Speaker 01: I don't think that's practically what will be borne out, Your Honor, because first, the holding in Jones was simply that the Eighth Amendment doesn't impose the burden, any procedural burden of saying anything at all. [00:08:17] Speaker 01: State law might impose that burden, and generally courts do explain their sentence. [00:08:21] Speaker 01: So I don't think a sentencing court can [00:08:25] Speaker 01: In fact, if a sentencing court has an interest in seeing its sentence upheld on review, I think it would want to explain its findings because those findings are still due deference, either under state law in reviewing a sentence or in federal habeas review under 2254E and EDPA. [00:08:41] Speaker 01: Anything that the state court does find is due deference. [00:08:44] Speaker 01: And I see my time is running short. [00:08:45] Speaker 01: I'd like to reserve, but I'm happy to answer more questions if the panel has any. [00:08:49] Speaker 02: Well, I have one more question. [00:08:51] Speaker 02: If I'm going to find that the state court's application of federal law is objectionally unreasonable in order to warrant the relief, I would have to find that fair-minded jurists could disagree on the correctness of the decision. [00:09:12] Speaker 02: I guess I'm trying to figure out, since Judge Dale thinks the decision was correct, then is relief warranted here? [00:09:19] Speaker 02: Because if she isn't, if Judge Dale is wrong, are you saying she was not fair-minded? [00:09:26] Speaker 02: Is that what you're arguing? [00:09:28] Speaker 02: I'm not arguing that, Your Honor, but first... But, I mean, that's the only way I can get there, because if fair-minded jurists could disagree on the correctness of the decision, then I've got to uphold it. [00:09:40] Speaker 02: And you're suggesting that the decision was so bad that I can't uphold it and I've got to undo it. [00:09:46] Speaker 02: Judge Dale looked at it. [00:09:49] Speaker 02: She decided what she was going to do. [00:09:51] Speaker 02: She may have even given it [00:09:53] Speaker 02: de novo review as you have asked for and she still thought it was not warranted so are you suggesting she's not fair-minded in what she did two points first as a threshold matter you only have to reach that if you find the Idaho Supreme Court did adjudicate the substantive claim on the merits I understand but I gave you both efforts and second the argument isn't whether or not Judge Dale is fair-minded in the abstract sense but I do think her decision was objectively unreasonable the problem comes in that [00:10:21] Speaker 02: The standard is so wide. [00:10:23] Speaker 02: That's all I'm trying to point out to you. [00:10:26] Speaker 02: The standard is so wide when you're talking about fair-minded jurists that it makes it very hard for you to win on that standard. [00:10:35] Speaker 02: I'm just trying to have you address that. [00:10:37] Speaker 01: I agree it's hard to win, Your Honor, but I'll point out again that the Supreme Court said that Miller, quote, established that this punishment is disproportionate, and I think there's only one way to interpret that quotation. [00:10:47] Speaker 03: Thank you. [00:10:48] Speaker 03: We'll give you time for rebuttal. [00:10:49] Speaker 03: Thank you. [00:10:56] Speaker 03: We'll hear from the state. [00:11:05] Speaker 04: Thank you, Your Honor. [00:11:05] Speaker 04: May it please the court. [00:11:07] Speaker 04: My name is Mark Olson, Deputy Attorney General with the Idaho AG's office. [00:11:11] Speaker 04: I represent the respondent, Amanda Gentry, in this case. [00:11:15] Speaker 04: I think it's very telling off the bat. [00:11:17] Speaker 04: There's been a lot of Miller Montgomery claims made in state and federal court. [00:11:22] Speaker 04: And I'm sure collectively, opposing counsel and I have probably looked at all of them over the last few weeks. [00:11:27] Speaker 04: And I think it's very telling that it's hard to find, I think as Your Honor noted, it's hard to find this claim anywhere. [00:11:33] Speaker 03: That's because they keep losing on all the others, so they have to come up with other claims. [00:11:36] Speaker 04: I would suggest that's exactly right. [00:11:38] Speaker 03: But it is, I mean, I think it is a creative argument, and it's something that we, I think as you're pointing out, we haven't really addressed before, and they've walked away from some of the more common arguments that are usually made in this area. [00:11:52] Speaker 03: So why don't you tell us why – I mean, the concern in ruling in your favor – in the government's favor here is that it basically says really there is no substantive right that is given in this context. [00:12:06] Speaker 03: All you have to do is have a hearing, and the judge has to say something, anything, and then that's the end of the story. [00:12:14] Speaker 03: Is that your interpretation of Miller and Montgomery? [00:12:18] Speaker 04: Well, I would disagree with the first part, Your Honor, that I think that the substantive right is incredibly established. [00:12:24] Speaker 04: It is important. [00:12:25] Speaker 04: How is it different in your view than the procedural right? [00:12:28] Speaker 04: Well, there's certainly overlap. [00:12:32] Speaker 04: I think the way Miller described it, or the cases since then have described it, the substantive right is essentially the protection against grossly disproportionate punishment that the required procedures provide. [00:12:44] Speaker 04: So the procedures are in place to protect that substantive right. [00:12:48] Speaker 04: And I would submit they have been very, very effective in doing that. [00:12:51] Speaker 04: Miller and Montgomery have had a profound effect. [00:12:54] Speaker 04: on juvenile homicide sentences in this country, and not just directly. [00:12:59] Speaker 04: There's been a strong legislative response. [00:13:02] Speaker 04: There's been states that have required additional procedural requirements, that have required state courts to put things on the record when they impose sentence. [00:13:10] Speaker 04: But the difference in this case, we don't have that concern because Sarah Johnson received what all of those and what many other juvenile defendants prior to Miller did not receive. [00:13:20] Speaker 04: She had the opportunity to present youth-based mitigating evidence, and she presented a lot of it. [00:13:25] Speaker 04: She had the opportunity to be sentenced before a court that had to consider that evidence and had the discretion to impose a sentence of less than fixed life. [00:13:34] Speaker 04: So that makes, I would suggest, Idaho, and we've had a few of these other cases, unfortunately, as far as first-degree murder [00:13:39] Speaker 03: Well, but see, I think everything you just said sort of goes into my concern here, which is those are all procedural protections that are given. [00:13:47] Speaker 03: What is the substantive protection, if anything, that is different than that? [00:13:51] Speaker 04: Well, Your Honor, I don't think there is a difference in the sense that the substantive right is against cruel and unusual punishment. [00:13:59] Speaker 04: And the procedures, if they're followed, are what satisfies that right. [00:14:03] Speaker 04: Now, there are occasions, and Jones identified a few, there are occasions where the procedures can be followed and the substantive right still fails. [00:14:13] Speaker 04: I think opposing counsel mentioned one of those. [00:14:14] Speaker 04: The North Carolina case, where the judge came out and said, [00:14:18] Speaker 04: uh... as a factual finding i am not uh... you are to this defendant is not permanently incorrigible whatever the standard was this was based on transit transit and charity so we have that finding on the record then that case the appellate court of the habeas court had no choice but to grant habeas relief but uh... otherwise i mean that's going to be a limited situation because as your honor stated jones told us that uh... [00:14:42] Speaker 04: Constitutionally, we don't have to have these reasons on the record. [00:14:46] Speaker 04: We certainly don't have a fact-finding requirement. [00:14:49] Speaker 00: So I would say it's just... Can I play that out just a little bit more to make sure I understand what you're arguing? [00:14:54] Speaker 00: So let's come up with a hypothetical. [00:14:55] Speaker 00: Let's say that the record is such that, you know, so the court went through all the procedural things we're talking about. [00:15:00] Speaker 00: Had the hearing, had discretion, evidence about age came in and its relevance to the sentencing decision. [00:15:07] Speaker 00: And the evidence that came in, every single expert that testified said that this offender had the ability to be rehabilitated. [00:15:13] Speaker 00: Every single family member that testified said this offender has the ability to be rehabilitated. [00:15:19] Speaker 00: The evidence is overwhelmingly slanted that way. [00:15:21] Speaker 00: And yet on the record, the sentencing judge says, I heard all that evidence. [00:15:26] Speaker 00: I'm not saying it's discredited, like not valid evidence, irrelevant or something. [00:15:31] Speaker 00: But I just think in my own judgment that any person who kills their own parents [00:15:35] Speaker 00: is entitled to a sentence of life without the possibility of parole, and that's what I'm issuing. [00:15:40] Speaker 00: We get that record. [00:15:41] Speaker 00: What do we do? [00:15:42] Speaker 04: I think that in a direct appeal type case, it could be a close question. [00:15:47] Speaker 04: It could be, perhaps, is there more meaningful daylight between the procedures being followed? [00:15:51] Speaker 00: But we're on habeas review. [00:15:52] Speaker 00: So what do we do with that record on habeas? [00:15:54] Speaker 04: So it could be a close case there. [00:15:56] Speaker 04: In habeas, it's not a close case because the Supreme Court has not told us what to do in that circumstance. [00:16:00] Speaker 04: They have told us definitively that, as Your Honor said, that the procedure is constitutionally enough to satisfy the Eighth Amendment because it [00:16:08] Speaker 04: is the procedure which ensures that the substantive right is followed. [00:16:12] Speaker 00: Here's the problem that Judge Nelson is getting at a little bit. [00:16:15] Speaker 00: It's fine and dandy to have procedures. [00:16:18] Speaker 00: If the procedures are supposed to serve a purpose, and it's pretty clear on the record that that underlying purpose isn't served, then what good are the procedures? [00:16:25] Speaker 04: Well, I would say the procedures have been very, very effective. [00:16:27] Speaker 04: I think one of the cases said fixed life sentences have reduced juvenile cases 75% since we have this Miller Montgomery framework. [00:16:34] Speaker 04: So they've been extraordinarily effective in that sense. [00:16:37] Speaker 04: I mean, if we have that hypothetical, if there is meaningful daylight that exists, I guess they use that phrase between the procedures being followed and we can think of a case where the substantive right is so clearly not followed. [00:16:47] Speaker 04: And like I said, I think Jones identifies a couple of situations like that North Carolina case where they say on the record that we have factual findings to the contrary of the substantive right. [00:16:55] Speaker 04: But other than that, we haven't – we don't have that test from the United States Supreme Court. [00:17:00] Speaker 00: And what – [00:17:07] Speaker 04: That is absolutely correct, Your Honor. [00:17:09] Speaker 02: And do I owe the Supreme Court any difference on this substantive issue? [00:17:14] Speaker 02: Yes. [00:17:15] Speaker 02: I ask your opponent that question. [00:17:19] Speaker 02: Where do you find in that opinion the language which would suggest they focused on this, other than what I read? [00:17:27] Speaker 04: And Your Honor, that's a two-part question because it depends where this court comes out on that. [00:17:31] Speaker 04: The threshold issue is whether there's clearly established law in this area at all. [00:17:35] Speaker 04: And if there is no clearly established area, anything in this law, then the Idaho Supreme Court had nothing to reach. [00:17:42] Speaker 04: So I would say that. [00:17:44] Speaker 04: And secondly, if we go to the clearly established contrary to clause instead, the Idaho Supreme Court, I believe Your Honor quoted from the Idaho Supreme Court's opinion that stated from Miller, something along the lines that it is the procedures that give effect to that substantive right. [00:18:00] Speaker 04: So the Idaho Supreme Court cited Miller, cited Montgomery, cited the Eighth Amendment, cited what Miller said about the substantive right, which is not all of the things that Johnson is asking this court to do, but cited what was actually in the Supreme Court opinion. [00:18:14] Speaker 04: So I don't think that we can say that the Idaho Supreme Court unreasonably applied everything [00:18:19] Speaker 04: When this is, essentially, I would submit a novel approach that Johnson is utilizing. [00:18:24] Speaker 04: As Your Honor stated, so many have been unsuccessful prior to this. [00:18:28] Speaker 04: This is one we haven't seen yet. [00:18:29] Speaker 04: And I would submit what Johnson's asking this court to do is essentially do a re-sentencing here, to reweigh the evidence, to look for things in the record. [00:18:39] Speaker 04: And I would suggest there's no Supreme Court case that tells us that a reviewing court in direct appeal or habeas has any authority to do that. [00:18:48] Speaker 04: And I would agree with Your Honor that it's something that we're seeing now that we haven't seen previously. [00:18:53] Speaker 04: It's very hard to find this claim. [00:18:56] Speaker 04: It's very hard to find cases where this comes up. [00:18:59] Speaker 04: And that's because this framework simply doesn't exist in the Miller and Montgomery and Jones series of cases. [00:19:04] Speaker 00: Is Jones even relevant here? [00:19:05] Speaker 00: Because if the argument that we are faced with, which is what I understand the argument to be, is just the substantive right under Miller and Montgomery was not satisfied. [00:19:14] Speaker 00: We all agree that Jones is a procedure case. [00:19:17] Speaker 00: So is it even relevant? [00:19:18] Speaker 04: It is relevant in a couple of ways, Your Honor. [00:19:20] Speaker 04: I would say first that the important thing of Jones, and counsel has said a few times, Jones didn't overrule anything. [00:19:25] Speaker 04: And I think that is important. [00:19:27] Speaker 04: Because the key here, why the United States Supreme Court talks so much about substantive aspect of this is because that's what makes this retroactive. [00:19:34] Speaker 04: If you read Montgomery again, it's a case about retroactivity. [00:19:38] Speaker 04: That's why they had to identify, yes, there is a substantive right. [00:19:41] Speaker 04: Yes, it's very important. [00:19:42] Speaker 04: It's protected by the procedures, but it certainly exists. [00:19:46] Speaker 04: That's why it's retroactive. [00:19:47] Speaker 04: Jones did not overrule any of that. [00:19:50] Speaker 04: And if it did, we wouldn't be here today, because if Jones said there is no substantive right or anything like that, then it's not retroactive. [00:19:56] Speaker 04: These cases aren't going to apply to Syria. [00:19:58] Speaker 00: Which is why Thomas's concurrence in, concurrence, I think, right, in Montgomery sort of has some power there, right? [00:20:06] Speaker 00: He said, you know, Miller seems to create a procedural rule. [00:20:09] Speaker 00: Then the court decided they wanted to make it retroactive, so they called it a substantive rule, and now we're left with, what kind of rule is this? [00:20:17] Speaker 04: And I would agree, Your Honor. [00:20:18] Speaker 04: I think that concurrence does express some of the tension between those perspectives. [00:20:22] Speaker 04: And I think the last thing I'll point out, I think Your Honor stated Johnson purely procedural. [00:20:26] Speaker 04: I'm not entirely sure of that. [00:20:28] Speaker 04: I think that that case was presented with a lot of the arguments that Johnson presents here, that there has to be some substantive component to that. [00:20:35] Speaker 04: And yes, they're looking for a procedural requirement to put things on the record to have the on-the-court explanation. [00:20:42] Speaker 04: But why they're asking for those things in Jones is to make a substantive challenge. [00:20:47] Speaker 04: They want the court to put these things on the record. [00:20:49] Speaker 04: They want the on-the-record explanation. [00:20:51] Speaker 04: They want this fact-finding requirement so the sentence can be attacked substantively. [00:20:56] Speaker 04: That's the whole point there. [00:20:58] Speaker 04: So I would suggest the arguments raised in Jones are very similar to the arguments raised in this case in terms of what that substantive right means, and it wasn't totally clear, and that's where we get that concurrence from Justice Thomas. [00:21:10] Speaker 04: I see my time is up. [00:21:11] Speaker 04: Unless Your Honors have any additional questions, the state would respectfully request that this Court affirm the Magistrate. [00:21:16] Speaker 03: Thank you. [00:21:17] Speaker 03: Thank you for your argument. [00:21:18] Speaker 03: Well here, let's give two minutes for rebuttal. [00:21:27] Speaker 01: Thank you, Your Honor. [00:21:28] Speaker 01: I'd like to try to make three points in rebuttal. [00:21:30] Speaker 01: First, I want to focus on the colloquy Judge Forrest was having with my friend on the other side about Kelleher, because I think the concessions there are fatal to their case. [00:21:42] Speaker 01: If opposing counsel concedes, and I think I did hear him concede this, that Kelleher was appropriate for the North Carolina Supreme Court to say, when the substantive standard clearly is not met, this sentence is disproportionate unconstitutional. [00:21:54] Speaker 01: If a court can do that in an easy case, there's no principle saying it can't do it in a harder case. [00:21:58] Speaker 01: Well, but that was the state court, right? [00:22:00] Speaker 01: That was not on habeas. [00:22:02] Speaker 03: Or it was on habeas review. [00:22:03] Speaker 03: No, it was a direct review. [00:22:05] Speaker 03: So, I mean, doesn't that sort of change it? [00:22:07] Speaker 03: Because the problem we have here, I mean, as we boil it down, is you still have to show it's clearly established. [00:22:14] Speaker 03: And you've got some, you know, breadcrumbs that you're pointing to in Montgomery. [00:22:19] Speaker 03: and Jones, but are they enough to show that it's clearly established that your argument is supported? [00:22:27] Speaker 01: Your Honor, I'd say they're more than breadcrumbs. [00:22:29] Speaker 01: The Supreme Court said it was established in Montgomery and Jones. [00:22:31] Speaker 01: But the point about Kelleher, I think, is that if a court can make this call in an easy case, it can also make the call in a harder case along the lines that Judge Forrest was getting at. [00:22:41] Speaker 02: No, but just a minute. [00:22:44] Speaker 02: It seems to me that Jones, to a certain extent, undoes what you're trying to argue. [00:22:50] Speaker 02: Because Jones says, and I quote, importantly, like Miller and Montgomery, our holding today does not preclude the states from imposing additional sentencing limits in cases involving defendants under 18. [00:23:06] Speaker 02: States may do what they want to do. [00:23:09] Speaker 02: In fact, they can go any place they want. [00:23:11] Speaker 02: If I went through the whole quote, that's where they go. [00:23:14] Speaker 02: But the United States Constitution, as this Court's presidents have termed, have interpreted, does not demand those particular policy approaches. [00:23:25] Speaker 02: So it seems to me what we're seeing in Jones, and that's why I think Jones has some big significance here, [00:23:32] Speaker 02: is the best we've got to do is have a hearing. [00:23:36] Speaker 02: We've got to look at the youth situation in that situation, have a hearing, look at all of that, have the judge look at all of it. [00:23:46] Speaker 02: And after that, the substantive approach has been done. [00:23:50] Speaker 02: If the states want to do more, they can do it. [00:23:52] Speaker 01: Your Honor, I agree that Jones is saying the federal constitution as a procedural matter makes discretion and a hearing sufficient. [00:23:58] Speaker 01: But if you look at these state cases, they're all applying the federal constitution to determine that there still is a substantive right after Jones. [00:24:06] Speaker 01: These state court decisions aren't based on additional state procedures. [00:24:09] Speaker 01: They're reading under state law. [00:24:10] Speaker 01: These are appellate courts saying that after Jones, there is still a substantive right. [00:24:15] Speaker 02: And if you look at- And that's clearly established? [00:24:18] Speaker 02: I think it is clearly established, Your Honor. [00:24:20] Speaker 02: Simply because somebody says that there's a proportionality attached to somebody with youth, that's the clearly established doctrine. [00:24:30] Speaker 01: To respond to Your Honor, I think it's clearly established because the Supreme Court said that in Montgomery. [00:24:34] Speaker 02: That's what they said. [00:24:35] Speaker 01: And they did not overturn that in Jones. [00:24:37] Speaker 01: They're very clear about that. [00:24:38] Speaker 01: And second, this is the point I was going to make. [00:24:39] Speaker 01: If you look at the balance of case law since Jones, courts overwhelmingly do recognize that there still is a substantive right under Miller, Montgomery, and Jones. [00:24:49] Speaker 01: And that comes from the federal Constitution. [00:24:51] Speaker 01: And so to conclude, I'd like to emphasize how narrow the relief is. [00:24:54] Speaker 01: We're just asking that Sara get a chance someday at parole, not even a grant of parole, just a chance to someday have hope for life outside prison walls. [00:25:02] Speaker 01: And we ask the court to reverse. [00:25:03] Speaker 03: Thank you. [00:25:03] Speaker 03: Thank you to both counsel for your arguments in the case. [00:25:07] Speaker 03: Very helpful to the court. [00:25:09] Speaker 03: And I would point out, you know, Ms. [00:25:10] Speaker 03: Johnson has been well represented. [00:25:13] Speaker 03: We have pro bono counsel who flew out here from New York and we're appreciative of your help to the court in helping us decide this case. [00:25:22] Speaker 03: That case is now submitted.