A man who was convicted of murdering two people in an East Chicago confrontation in 1996 when he was 16 is entitled by subsequent U.S. Supreme Court rulings to a fresh look at his sentence, a dissenting 7th Circuit Court of Appeals judge wrote.
The majority of the three-judge panel denied and dismissed Gary native McKinley Kelly’s motion for an order authorizing the district court to entertain a second or successive petition for collateral review of denial of his petition for habeas relief under 28 U.S.C. § 2254.
“We agree with the State: Kelly was afforded all he was entitled to under [Miller v. Alabama, 132 S. Ct. 2455 (2012)],” Judge Daniel Manion wrote for the majority joined by Chief Judge Diane Wood. That decision held mandatory life sentences for juvenile offenders is unconstitutional, and the holding of Miller was made to apply retroactively in McKinley v. Butler, 809 F.3d 908 (7th Cir. 2016).
According to the trial court record, Kelly was 16 when he and several other people pulled their vehicles into an East Chicago driveway where three men were standing. Kelly and the others got out, an altercation ensued, and Kelly fired the first shot. Maruice Hobson, Karl Jackson and Vincent Ray, who had been in the driveway, were killed that night. A Lake County jury convicted Kelly of all three murders, but one conviction was vacated. He was given the advisory sentence of 55 years in prison on both sentences, to be served consecutively.
The Indiana Supreme Court in 1999 affirmed Kelly’s convictions, and the majority of the 7th Circuit panel dismissed his latest petition for relief, reiterating the trial court findings Indiana’s justices relied upon. Those included the facts that Miller was already on probation with the juvenile court; he shot multiple victims at close range; the killings showed a lack of respect for human life; and he was a risk to commit future crimes. The trial court noted his age as a mitigating factor in handing down the advisory sentence.
“The sentencing court had considerable leeway in fashioning Kelly’s sentence and in fact considered his age when deciding on the appropriate term,” the majority concluded in denying the petition for relief in McKinley Kelly v. Richard Brown, 17-1244.
But dissenting Judge Richard Posner cited a litany of research and recent Supreme Court precedent regarding high rates of rehabilitation for youthful offenders to urge reconsideration of Kelly’s sentence, which he argued is a de facto life sentence.
“(T)he judge found that the killings were not planned and were tragic for everyone involved, including Kelly,” Posner wrote. The judge mused that there ‘have always been disagreements among young people,’ and that what would have been a fist fight or a knife fight in years past, today has elevated consequences because of the ubiquity of guns; not the stuff of a crime demonstrating the complete depravity and irredeemability of Kelly.
“We should allow him to pursue his Miller claim in the district court, which should conduct a hearing to determine whether he is or is not incorrigible.”