Jackson v. Vannoy, No. 19-30772

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Stephen A. Higginson, United States Circuit Judge
• Citation: 981 F.3d 408
• Parties: Antonio M. JACKSON, Petitioner—Appellant, v. Darrel VANNOY, Warden, Louisiana State Penitentiary, Respondent—Appellee.
• Decision Date: 23 November 2020
• Docket Number: No. 19-30772

981 F.3d 408

Antonio M. JACKSON, Petitioner—Appellant,
v.
Darrel VANNOY, Warden, Louisiana State Penitentiary, Respondent—Appellee.

No. 19-30772

United States Court of Appeals, Fifth Circuit.

FILED November 23, 2020

Stephen A. Higginson, United States Circuit Judge

ORDER:

Mandatory life imprisonment without possibility of parole is the only punishment authorized by Louisiana's second-degree murder statute. The United States Supreme Court, however, has held that the Constitution prohibits the imposition of that sentence on juvenile offenders. Miller v. Alabama , 567 U.S. 460, 465, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). While the Constitution does not completely rule out life-without-parole sentences for the worst juvenile offenders, it does require sentencing discretion to account for a juvenile's lessened culpability and potential for rehabilitation. Id. at 479–80, 132 S.Ct. 2455. For those juvenile offenders who received such an unconstitutional sentence before the Supreme Court announced this rule, the state must provide consideration for parole eligibility or resentencing.

981 F.3d 411

Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 736, 193 L.Ed.2d 599 (2016).

But can a juvenile offender constitutionally be resentenced under a criminal statute that, like Louisiana's, authorizes no lesser, alternative punishment? That is the essential question for which Petitioner Antonio M. Jackson seeks a certificate of appealability here.

I.

Two-dozen years ago, a Louisiana jury convicted Jackson of one count of second-degree murder and one count of manslaughter. State v. Jackson , 243 So. 3d 1093, 1095 (La. Ct. App. 2017). For the former, he received the then-mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the latter, he was sentenced to 40 years at hard labor. Id. The state court ordered that Jackson serve the sentences consecutively. Id. The Louisiana appellate court affirmed the convictions and sentences on direct appeal. State v. Jackson , 707 So. 2d 990, 993 (La. Ct. App. 1997). At the time of his crimes, Jackson was 17 years old. Jackson , 243 So. 3d at 1095.

In the years since, the United States Supreme Court has issued two decisions bearing on the constitutionality of Jackson's mandatory sentence of life imprisonment without parole—and Jackson has tried to avail himself of each. First, in Miller v. Alabama , the Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ " 567 U.S. at 465, 132 S.Ct. 2455. With that holding in hand, Jackson filed a pro se motion to correct illegal sentence in August 2012, arguing that he should be resentenced to no more than 40 years at hard labor. Jackson , 243 So. 3d at 1095. But, at the time, Louisiana courts did not understand Miller to apply retroactively to cases like Jackson's. State v. Tate , 130 So. 3d 829, 844 (La. 2013). The state trial court denied Jackson's motion in December 2013. Jackson , 243 So. 3d at 1095.

Next, in Montgomery v. Louisiana , the Supreme Court held that Miller applies retroactively to defendants whose convictions and sentences were final prior to the decision in Miller . 136 S. Ct. at 736. Miller and Montgomery do not preclude life-without-parole sentences for "permanentl[y] incorrigib[le]" juvenile offenders. Id. at 734. But they do require that any mandatory life-without-parole sentence imposed on a juvenile offender be cured, either by affording consideration for parole eligibility or resentencing. Id. at 736.

Shortly after Montgomery was decided, Jackson filed another motion to correct illegal sentence in state court, again proposing a 40-year sentence. Jackson , 243 So. 3d at 1095. On June 21, 2016, the court rejected Jackson's proposal. Id. But, to bring Jackson's sentence into compliance with Miller and Montgomery , the court vacated his life-without-parole sentence on the murder conviction and imposed a sentence of life with the possibility of parole. Id. The court also ordered that this sentence run concurrently with Jackson's manslaughter sentence. Id. at 1095–96.

Montgomery reemerged just seven days later. On June 28, 2016, on remand in the Montgomery case, the Louisiana Supreme Court directed lower courts to conduct parole eligibility hearings for pre- Miller juvenile offenders sentenced to life without parole using two post- Miller Louisiana statutes: La. Code Crim. Proc. art. 878.1 (2013) and La. R.S. 15:574.4(E) (2013). State v. Montgomery , 194 So. 3d 606, 607–08 (La. 2016). Article 878.1 required district courts to conduct a hearing "[i]n any

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case where an offender is to be sentenced to life imprisonment for a conviction of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense ... to determine whether the sentence shall be imposed with or without parole eligibility pursuant to the provisions of R.S. 15:574.4(E)." Section 15:574.4(E), in turn, provided the conditions under which persons serving life sentences for first- or second-degree murder committed under the age of 18 could become parole eligible.

Jackson once more challenged his sentence. In September 2016, the state court vacated the sentence imposed in June 2016 and set the matter for resentencing. Jackson , 243 So. 3d at 1096. At the subsequent October 2016 hearing, following the guidelines outlined by the Louisiana Supreme Court in Montgomery on remand, the state court re-imposed the same sentence: life imprisonment without the benefit of probation or suspension of sentence, but with the possibility of parole, to run concurrently with Jackson's 40-year manslaughter sentence. Id. The Louisiana appellate court affirmed Jackson's convictions and sentences for the second time, id. at 1095, and the Louisiana Supreme Court denied writs, State v. Jackson , 243 So.3d 565 (La. 2018). Jackson then petitioned the federal district court for a writ of habeas corpus, asserting that his murder sentence is unconstitutional. Jackson v. Vannoy , 2019 WL 4145727, at *1, 2019 U.S. Dist. LEXIS 149165, at *1 (W.D. La. July 11, 2019). The district court denied both the petition and Jackson's proposed certificate of appealability. Jackson v. Vannoy , No. 19-cv-665, ECF No. 7, 2019 WL 4166762 (W.D. La. Aug. 30, 2019) ; id. , ECF No. 13 (W.D. La. Oct. 2, 2019).

Jackson now seeks a certificate of appealability (COA) to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition. He raises four issues: (1) whether the Due Process Clause forbids Jackson's modified sentence under a statute that does not authorize that sentence and provides no punishment that can constitutionally be applied to him; (2) whether the Due Process Clause forbids his sentence because Louisiana's second-degree murder statute, as applied to juveniles, fails to provide the constitutionally required notice concerning the potential punishment a defendant faces; (3) whether Jackson's resentencing represents an unconstitutional application of an ex post facto law; and (4) whether Jackson's modified sentence is unconstitutionally disproportionate under the Eighth Amendment.

II.

In order to obtain a COA to appeal the denial of a § 2254 petition, Jackson must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) ; see also Miller-El v. Cockrell , 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). He can satisfy this standard only "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El , 537 U.S. at 327, 123 S.Ct. 1029. That being said, courts "do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus." Id. at 338, 123 S.Ct. 1029 (emphasis added). After all, "a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Id. This "threshold" inquiry is more a peek under the hood than a full detail: it is performed "without ‘full

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consideration of the factual or legal bases adduced in support of the claims.’ " Buck v. Davis , ––– U.S. ––––, 137 S. Ct. 759, 773, 197 L.Ed.2d 1 (2017) (quoting Miller-El , 537 U.S. at 336, 123 S.Ct. 1029 ).

The court evaluates the debatability of Jackson's constitutional claims under the "highly deferential" standard of the Antiterrorism and Effective Death Penalty Act, which "demands that state-court decisions be given the benefit of the doubt." Renico v. Lett , 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (quoting Woodford v. Visciotti , 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam)). To prevail, a habeas petitioner must prove that the constitutional adjudication by the state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or...