In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2240 CURTIS L. WALKER, Petitioner-Appellant, v.

DAN CROMWELL, Respondent-Appellee. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:22-cv-311-wmc — William M. Conley, Judge. ____________________

ARGUED SEPTEMBER 17, 2024 — DECIDED JUNE 16, 2025 ____________________

Before EASTERBROOK, HAMILTON, and MALDONADO, Circuit Judges. HAMILTON, Circuit Judge. Curtis Walker has served 30 years of his life sentence for a murder that he committed when he was 17 years old. The state trial judge in Walker’s case ex- ercised the discretion conferred upon him by Wisconsin law to set Walker’s parole eligibility date for 2071. Walker will not be eligible for release until he is 95 years old. 2 No. 23-2240

Almost two decades after Walker was sentenced, the Supreme Court began deciding a series of cases involving juvenile offenders who were sentenced to life without parole. Relying on those decisions, Walker sought postconviction relief in the Wisconsin state courts. After the state courts denied relief, Walker filed a petition for federal habeas corpus relief under 28 U.S.C. § 2254 arguing that he is serving a de facto life-without-parole sentence that violates the Eighth Amendment. He requests a “meaningful opportunity” to demonstrate that he is no longer dangerous and that he is capable of reintegrating into the community. Given the deferential standard of review we apply under section 2254(d), we affirm the district court’s denial of federal habeas relief. The Wisconsin Court of Appeals did not unreasonably apply the Supreme Court’s case law, which offers mixed signals on cases like Walker’s, where a juvenile homicide offender is sentenced to life without parole as a matter of judicial judgment and discretion. I. Factual and Procedural Background A. Walker’s Crime and Punishment In 1994, Curtis Walker and an accomplice shot and killed Milwaukee police officer William Robertson, an officer they selected at random for murder. Walker was 17 years old at the time of the crime. He was tried as an adult in a Wisconsin state court and was convicted of first-degree intentional homicide while using a dangerous weapon, as a party to the crime. Dur- ing Walker’s sentencing hearing, the judge considered Walker’s difficult childhood and capacity for rehabilitation before concluding that a lengthy prison sentence was war- ranted. The judge sentenced Walker to life in prison with a parole eligibility date of 2071. Walker unsuccessfully No. 23-2240 3

appealed his conviction, and the Wisconsin Supreme Court denied review in February 2001. B. Intervening Decisions on Juvenile Life Without Parole That would have been the end of Walker’s legal story if not for a series of intervening Supreme Court cases involving ju- venile offenders who were sentenced to terms of life in prison without parole. First, in Graham v. Florida, 560 U.S. 48, 74 (2010), the Court held that the Eighth Amendment prohibits a State from sentencing juvenile offenders who did not commit homicide to life without parole. It required a State to give ju- venile offenders convicted of non-homicide crimes “some meaningful opportunity to obtain release based on demon- strated maturity and rehabilitation.” Id. at 75. Then, in Miller v. Alabama, 567 U.S. 460, 479 (2012), the Court held that the Eighth Amendment forbids mandatory life without parole for all juvenile offenders, including those convicted of murder. Graham and Miller were both grounded in the observation that “children are constitutionally different from adults for purposes of sentencing.” Id. at 471; Graham, 560 U.S. at 68 (similar). Because children are categorically less culpable than adults and life without parole is a particularly harsh punish- ment for juvenile offenders, see Miller, 567 U.S. at 477; Graham, 560 U.S. at 68–71, the Court imposed safeguards (a categorical prohibition for non-homicide offenders and an individual- ized sentencing process for homicide offenders) that had pre- viously been confined to the context of capital punishment. As significant as Graham and Miller were, however, neither decision appeared to affect the validity of Walker’s sentence since he had been convicted of homicide and sentenced under Wisconsin’s discretionary sentencing scheme. That changed 4 No. 23-2240

when the Court decided Montgomery v. Louisiana, 577 U.S. 190 (2016). In Montgomery, the Court wrote that Miller had adopted a substantive rule of constitutional law that would apply retroactively on collateral review, such as habeas peti- tions. Id. at 212. Montgomery required States to give any juve- nile offender sentenced to mandatory life without parole an “opportunity for release” in the form of the chance to be con- sidered for parole. Id. Although Miller had addressed only mandatory sentencing schemes, Montgomery was written so that its rationale for holding Miller retroactive could apply to all juvenile homicide offenders sentenced to life without parole, whether as a mandatory sentence or not. According to Montgomery, Miller contained a “substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” 577 U.S. at 210. “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Id. at 208 (internal quotation marks omitted), quoting Miller, 567 U.S. at 479. C. State Postconviction Proceedings and Jones v. Mississippi Just three months after the Supreme Court decided Montgomery, Walker sought resentencing in a postconviction motion in the state trial court. The trial court denied Walker’s motion on the ground that he was not serving a sentence without possibility for parole triggering the protections of Miller and Montgomery. Walker appealed to the Wisconsin Court of Appeals in 2016. Due to two developments outside of his control, Walker did not receive a decision in his appeal until January 2022. No. 23-2240 5

First, the Court of Appeals held Walker’s case in abeyance pending the Wisconsin Supreme Court’s decision in a different postconviction case presenting the issue whether Miller and Montgomery apply to de facto life-without-parole sentences. The Wisconsin Supreme Court then held that case in abeyance after the Supreme Court granted certiorari in Jones v. Mississippi, 593 U.S. 98 (2021), another case involving a juvenile sentenced to life without parole. Like Walker, but unlike the petitioners in Miller and Montgomery, the Jones petitioner was sentenced to life without parole under a discretionary sentencing law. Id. at 100–01. Jones addressed the scope of Miller and Montgomery and, in particular, whether “a sentencer who imposes a life-with- out-parole sentence must also make a separate factual finding that the defendant is permanently incorrigible, or at least pro- vide an on-the-record sentencing explanation with an implicit finding that the defendant is permanently incorrigible.” Id. at 101. The Court held in Jones that a sentencing judge need not make an explicit or implicit factual finding that a juvenile homicide offender is permanently incorrigible before impos- ing life without parole. Id. After Jones, the Wisconsin Court of Appeals finally ad- dressed Walker’s appeal and affirmed the trial court’s denial of postconviction relief. But instead of adopting the trial court’s reasoning, the appellate court resolved Walker’s claim under Jones. The appellate court assumed that Walker’s sen- tence amounted to life without parole as a practical matter. The court held, however, that the sentence did not violate the Eighth Amendment because the sentencing judge had consid- ered Walker’s “youth and its attendant circumstances as a mitigating factor” before imposing life without parole. The 6 No. 23-2240

Wisconsin Supreme Court then denied Walker’s petition for review. D. Federal Habeas Proceedings Having exhausted his state-court remedies, Walker filed a petition for federal habeas review in the Western District of Wisconsin. He asserted that his sentencing judge “acknowledged, on the record, that he believed [him] to be capable of reform,” and according to Walker, therefore could not constitutionally sentence him to de facto life without parole, which precludes “the possibility of any meaningful opportunity for parole or release.” He also asserted that his claim was timely because it was based on the Supreme Court’s decisions in Miller and Montgomery. The district court dismissed Walker’s petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. It gave two independent reasons for dismissal. First, the court held that Walker’s habeas petition was untimely under the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year limitations period. 28 U.S.C. § 2244(d)(1). AEDPA’s limitations period is measured from the latest of four events described in the statute. The relevant event for Walker’s petition is “the date on which the constitu- tional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” § 2244(d)(1)(C). The district court concluded that the one-year limitations period for Walker’s claim began on June 25, 2012, the day Miller was decided. “Unfortunately, if understandably,” Walker did not file his motion for postconviction relief in state No. 23-2240 7

court until after the Supreme Court decided Montgomery four years later. On that reasoning, his motion was late by nearly three years. The court also held that Walker could not meet his burden of showing on the merits that he was entitled to federal habeas relief. The district court concluded that, although “the sentencing judge found Walker to be capable of reform,” the Wisconsin Court of Appeals did not unreasonably apply federal law in determining that Walker’s individualized sentencing process satisfied the Eighth Amendment. Noting the “particularly harsh result” of denying relief in Walker’s case, the district court granted him a certificate of appealability. Walker appealed, and we concluded that his appeal would benefit from counseled briefing and oral argument. We re- cruited counsel to brief the timeliness and merits of Walker’s Eighth Amendment claim under AEDPA. 1 II. Timeliness of Walker’s Petition After considering both parties’ arguments on the timeli- ness of Walker’s habeas petition, we decline to decide his pe- tition on timeliness grounds. Walker argues—and Wisconsin does not dispute—that the district court erred by finding his petition untimely without giving either party notice or an op- portunity to present arguments. We agree. The Supreme Court has held that district courts may consider sua sponte the timeliness of a habeas petition but only after giving both parties “fair notice and an opportunity to present their posi- tions.” Day v. McDonough, 547 U.S. 198, 210 & n.11 (2006) (“A

1 Attorneys Jeffrey R. Johnson, S. Matthew Krsacok, Nicholas A.

Campbell, Riley W. Walters, and the law firm of Jones Day have the thanks of this court for their able representation and assistance to the court. 8 No. 23-2240

district court’s discretion is confined within these limits.”). Although Day involved a habeas petition that had survived the initial screening stage, it is equally applicable to petitions dismissed under Rule 4. See id. at 207 & n.6 (courts are “never (or, at least, hardly ever) … positioned to raise AEDPA’s time bar sua sponte” at Rule 4 stage); Shelton v. United States, 800 F.3d 292, 294–95 (6th Cir. 2015) (applying Day’s due process requirements at the Rule 4 screening stage; vacating judgment and remanding for further proceedings); Wentzell v. Neven, 674 F.3d 1124, 1126, 1128 (9th Cir. 2012) (same; reversing judg- ment and remanding for further proceedings). On appeal, both sides have briefed the timeliness issue. But because the district court found Walker’s petition un- timely without notifying him, Walker never had the chance to argue that an exception to the statute of limitations applies. The existing record is insufficient to assess whether he has a viable argument for equitable tolling, so affirming the district court’s dismissal on timeliness grounds would be premature. See In re Rosado, 7 F.4th 152, 157 (7th Cir. 2021) (“Tolling deci- sions are often hard and fact bound, best left to district courts in the first instance.”); Arreola-Castillo v. United States, 889 F.3d 378, 383–84 (7th Cir. 2018) (declining to consider sua sponte the government’s forfeited timeliness argument where the pe- titioner “might have submitted additional evidence” if the is- sue had been raised in district court). We also think it is more prudent to resolve Walker’s ha- beas petition on the merits of his Eighth Amendment claim under AEDPA because the timeliness and the merits issues are tangled up together. In Cross v. United States, we cautioned against “improperly read[ing] a merits analysis into the limi- tations period.” 892 F.3d 288, 293 (7th Cir. 2018). In Walker’s No. 23-2240 9

case, though, we do not see any way to disentangle the time- liness of his petition from the merits of his claim. The limita- tions period for Walker’s habeas petition began to run on the date that the Court announced his asserted right. 28 U.S.C. § 2244(d)(1)(C); Dodd v. United States, 545 U.S. 353, 357 (2005); Johnson v. Robert, 431 F.3d 992, 992 (7th Cir. 2005). Walker’s claim is timely only if Montgomery, rather than Miller, an- nounced his asserted right. 2 We cannot decide when the Supreme Court announced Walker’s asserted right without determining the scope of both Miller and Montgomery—the issue at the core of Walker’s Eighth Amendment claim—and as shown below, that is not an easy task. We think it is best to undertake that analysis un- der section 2254’s “contrary to” or “unreasonable applica- tion” standard for the merits rather than opining on the con- stitutional issue as part of the timeliness inquiry. III. Walker’s Eighth Amendment Claim A. The AEDPA Standard of Review We review de novo the district court’s denial of habeas re- lief. Rhodes v. Dittmann, 903 F.3d 646, 655 (7th Cir. 2018). Be- cause the Wisconsin Court of Appeals rejected Walker’s Eighth Amendment claim on the merits, the deferential

2 Dodd held that the one-year limitations period in 28 U.S.C. § 2255

begins to run on the date that the Court announces a new right, not the date that the Court makes the right retroactive. 545 U.S. 353, 357 (2005). While Dodd involved a section 2255 habeas claim, we have extended its holding to the materially identical language in section 2244(d)(1)(C). John- son v. Robert, 431 F.3d 992, 992 (7th Cir. 2005). The district court granted a certificate of appealability based in part on the possibility that we would reconsider our holding in Johnson that Dodd’s rationale applies to state prisoners. We see no reason to reconsider Johnson at this time. 10 No. 23-2240

standards of 28 U.S.C. § 2254(d) govern our review. Id. Walker does not challenge the state courts’ fact-finding, so he cannot win a writ of habeas corpus unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Su- preme Court of the United States.” 28 U.S.C. § 2254(d)(1). Walker seeks relief under both prongs of section 2254(d)(1). A state court’s decision is “contrary to” clearly es- tablished law “if it either applies a rule that contradicts a prior Supreme Court case, or if it reaches a different result than the Supreme Court has reached on a materially indistinguishable set of facts.” Hall v. Zenk, 692 F.3d 793, 798 (7th Cir. 2012), cit- ing Williams v. Taylor, 529 U.S. 362, 405 (2000) (majority opin- ion of O’Connor, J.). A decision is an “unreasonable applica- tion” of clearly established law “‘if the state court identifies the correct governing legal principle’ but ‘unreasonably ap- plies that principle to the facts of the petitioner’s case.’” Rhodes, 903 F.3d at 655, quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003). The standard is intended to be difficult to meet. Harrington v. Richter, 562 U.S. 86, 102 (2011). A federal court may grant relief only if the state court’s decision “was unrea- sonably wrong under an objective standard.” Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc), citing Williams, 529 U.S. at 410–11 (majority opinion of O’Connor, J.). To obtain relief under either prong of section 2254(d)(1), a petitioner must identify “clearly established federal law, as determined by the Supreme Court of the United States,” that applies to his claim. Under AEDPA, clearly established fed- eral law “refers to the holdings … of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Garcia v. Hepp, 65 F.4th 945, 949 (7th Cir. 2023), quoting No. 23-2240 11

Williams, 529 U.S. at 412 (majority opinion of O’Connor, J.). The lower federal courts have an independent obligation to determine for themselves the relevant “clearly established Federal law.” Andrew v. White, 604 U.S. —, —, 145 S. Ct. 75, 82 (2025). Particularly relevant here, when we try to determine what constitutes clearly established law, we look beyond “the four corners of a rule announced in a single case. We consider all cases that ‘provide a body of clearly established law’ gov- erning the issue.” Garcia, 65 F.4th at 949, quoting Sims v. Hy- atte, 914 F.3d 1078, 1089 (7th Cir. 2019). B. Walker’s Eighth Amendment Claim Walker and Wisconsin agree that Walker’s claim is governed by Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. Louisiana, 577 U.S. 190 (2016), and Jones v. Mississippi, 593 U.S. 98 (2021). Although the Supreme Court has yet to extend Miller, Montgomery, and Jones to a sentence with the possibility of parole, the Wisconsin Court of Appeals assumed that Walker’s sentence with parole eligibility coming first at age 95 is “a de facto life-without-parole sentence that implicates Miller and Montgomery.” The state court read Jones to hold that the Eighth Amendment requires only an individualized sentencing process in a case involving a juvenile homicide offender sentenced to life without parole. It concluded that Walker’s de facto life-without-parole sentence satisfies the Eighth Amendment because the sentencing judge considered his youth and had discretion to impose a less severe penalty. For purposes of this appeal, we will follow the state court’s lead in treating Walker’s sentence as de facto life without parole and thus subject to Miller, Montgomery, and Jones. Cf. Wilson v. Neal, 108 F.4th 938, 949–50 (7th Cir. 2024) (affirming denial of habeas relief where state courts held that 12 No. 23-2240

Miller did not apply to long term of years that arguably amounted to de facto life without parole). Walker contends that Montgomery, not Jones, establishes the legal principle that governs his Eighth Amendment claim. His argument relies on Montgomery’s rationale for holding that Miller adopted a substantive rule retroactively applicable on collateral review. A new rule of constitutional law is sub- stantive if it prohibits “a certain category of punishment for a class of defendants because of their status or offense.” Mont- gomery, 577 U.S. at 198, first quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989), and then citing Teague v. Lane, 489 U.S. 288, 307 (1989) (plurality opinion of O’Connor, J.). “Substantive rules, then, set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether be- yond the State’s power to impose.” Id. at 201. Montgomery explained that Miller’s rule is substantive be- cause it “did more than require a sentencer to consider a ju- venile offender’s youth before imposing life without parole.” Id. at 208. Miller “bar[red] life without parole … for all but the rarest of juvenile offenders, those whose crimes reflect perma- nent incorrigibility.” Id. at 209. As a result, the Court declared in Montgomery, “all other children imprisoned under a dispro- portionate sentence have … suffered the deprivation of a sub- stantive right.” Id. Walker reads this discussion to impose a categorical pro- hibition on sentencing corrigible juvenile offenders to life without parole. Applying that rule to the facts of his case, he argues that the judge who sentenced him affirmatively found that he was capable of change and therefore could not consti- tutionally sentence him to life without parole. In Walker’s view, that affirmative finding distinguishes his case from No. 23-2240 13

Jones, in which the petitioner’s sentencer did not make a fac- tual finding of corrigibility. He argues that the state court’s decision was contrary to clearly established federal law inso- far as it concluded that his case was governed by Jones, rather than by Miller and Montgomery, and an unreasonable applica- tion of federal law because it relied on an erroneously broad reading of Jones. Walker has solid grounds for arguing that Montgomery es- tablished a substantive, categorical rule that life without pa- role is an unconstitutionally disproportionate penalty for ju- venile offenders capable of change. Montgomery characterized that principle as a “substantive holding” and relied on it to hold that Miller adopted a substantive rule of constitutional law applicable on collateral review. 577 U.S. at 210. And the quoted language from Montgomery certainly points in the di- rection Walker argues. Under the AEDPA, however, a state-court decision can withstand habeas review even when the petitioner presents a “strong case for relief.” Harrington, 562 U.S. at 102. Relief is available only if the state court’s decision is “so lacking in jus- tification that there was an error well understood and com- prehended in existing law beyond any possibility for fair- minded disagreement.” Id. at 103. No such error occurred here because the Court’s precedents, when read together, simply do not clearly establish such a categorical prohibition against sentencing corrigible juveniles to life without parole, at least when the sentencing judge has discretion not to im- pose so severe a sentence. First, Miller expressly declared that it was not adopting a categorical prohibition on sentencing any subset of juvenile offenders to life without parole: 14 No. 23-2240

Our decision does not categorically bar a pen- alty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a cer- tain process—considering an offender’s youth and attendant characteristics—before imposing a particular penalty. 567 U.S. at 483. Then, Montgomery seemed to contradict that quoted language in Miller when it held that Miller was retro- actively applicable precisely because it “did bar life without parole … for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U.S. at 209. Finally, Jones expressed a substantially narrower reading of both Miller and Montgomery that is in significant tension with Montgomery’s language, logic, and retroactivity holding. Both Montgomery and Jones drew dissents arguing that the Court had effectively rewritten its prior decisions. Montgom- ery, 577 U.S. at 225 (Scalia, J., dissenting) (“It is plain as day that the majority is not applying Miller, but rewriting it.”); Jones, 593 U.S. at 143 (Sotomayor, J., dissenting) (“Instead of addressing [the traditional stare decisis] factors, the Court simply rewrites Miller and Montgomery to say what the Court now wishes they had said, and then denies that it has done any such thing.”); see also Jones, 593 U.S. at 127 (Thomas, J., concurring in the judgment) (majority opinion “[o]verrule[d] Montgomery in substance but not in name”). Where the Supreme Court’s relevant precedents “have not been a model of clarity,” the Court teaches lower federal courts to be cautious about what its case law has “clearly established” for purposes of section 2254(d). See Lockyer v. Andrade, 538 U.S. 63, 72 (2003) (reversing grant of relief where No. 23-2240 15

Eighth Amendment principle of “gross disproportionality” was not defined by precise contours and applied only in “exceedingly rare” and “extreme” cases). “A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from [the] Court is, at best, ambiguous.” Mitchell v. Esparza, 540 U.S. 12, 17 (2003). With respect, we believe the shifting rationales of Miller, Montgomery, and Jones have left unsettled whether the Eighth Amendment categorically forbids life without parole for corrigible juvenile homicide offenders. We explain next why Montgomery is itself ambiguous about whether it adopted such a categorical rule. Then we explain why Jones confirms that reasonable jurists could disagree about the scope of Montgomery. 1. Discerning Montgomery’s Reach Montgomery would have been an unusual vehicle for the Court to take the significant step of adopting a categorical prohibition on sentencing corrigible juvenile homicide of- fenders to life without parole. The case set out to answer a narrow question: whether Miller adopted a substantive rule retroactively applicable on collateral appeal. And while Miller clearly understood the distinction between corrigible and in- corrigible youths to be important, see 567 U.S. at 479–80 (sug- gesting that only incorrigible juvenile offenders should be sentenced to life without parole), the Miller Court said it was not categorically prohibiting the State from sentencing any group of juvenile offenders to life without parole. Miller limited its analysis to the constitutional problems with mandatory sentencing schemes. Id. at 474 (“But the man- datory penalty schemes at issue here prevent the sentencer from taking account of these central considerations.”). Miller 16 No. 23-2240

drew on the Court’s cases categorically prohibiting certain penalties for juvenile offenders for their discussion of chil- dren’s “distinctive (and transitory) mental traits and environ- mental vulnerabilities,” none of which are crime-specific. Id. at 472–74 (discussing Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010)). But the Miller Court took care to distinguish its holding from the categorical rules adopted in those cases, in language we quoted above: Our decision does not categorically bar a pen- alty for a class of offenders or type of crime—as, for example, we did in Roper or Graham. Instead, it mandates only that a sentencer follow a cer- tain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty. Id. at 483. And because Miller’s holding requiring individual- ized sentencing procedures was “sufficient to decide” the cases before it, the Court expressly declined to consider the petitioners’ alternative argument “that the Eighth Amend- ment requires a categorical bar on life without parole for ju- veniles.” Id. at 479. Although we cannot ignore the breadth of Montgomery’s reasoning, we also have to read it in the context of the narrow question and specific facts presented in Montgomery. When the Court determines whether a constitutional rule applies retroactively, its retroactivity analysis does not ordinarily change the scope of the constitutional rule at issue. A categorical prohibition would have affected the validity of discretionary life-without-parole sentences in addition to the mandatory sentences invalidated by Miller. See Montgomery, 577 U.S. at 202 (“Nor could the use of flawless sentencing No. 23-2240 17

procedures legitimate a punishment where the Constitution immunizes the defendant from the sentence imposed.”). But to decide the case before it in Montgomery, the Court did not need to extend Miller beyond mandatory sentencing schemes. The Montgomery petitioner was sentenced to life without parole under a mandatory sentencing scheme and therefore fell within the rule established by Miller. Id. at 194. With that context in mind, a reasonable jurist could conclude that Montgomery’s retroactivity analysis did not go any fur- ther than making Miller’s prohibition on mandatory life with- out parole retroactively applicable. See, e.g., United States v. Grant, 9 F.4th 186, 196 (3d Cir. 2021) (en banc) (“any language in Montgomery pertaining to discretionary LWOP sentencing regimes is not binding”). Two other features of Montgomery reinforce that conclu- sion. First, despite Montgomery’s broad statements about what Miller and the Eighth Amendment prohibit, it did not engage in the mode of analysis that the Court usually employs when it considers whether to adopt a categorical substantive rule. In its Eighth Amendment cases adopting categorical rules, the Court first considers “‘objective indicia of society’s standards, as expressed in legislative enactments and state practice,’ to determine whether there is a national consensus against the sentencing practice at issue.” Graham, 560 U.S. at 61 (applying that approach to life without parole for juvenile offenders who did not commit homicide), quoting Roper, 543 U.S. at 563. If Montgomery had adopted a categorical rule, we would ex- pect it to have considered state sentencing practices or at least to have acknowledged that it was departing from the Court’s usual approach. But Montgomery never mentioned the “objec- tive indicia of society’s standards” inquiry. Regardless, the 18 No. 23-2240

sentencing practice at issue in Montgomery was mandatory life without parole for juvenile homicide offenders, 577 U.S. at 193–94, and Miller’s discussion was also limited to mandatory sentences, 567 U.S. at 482–87. Further, Montgomery’s discussion of the practical conse- quences of its holding for the State and juvenile offenders con- spicuously lacks any mention of discretionary life-without- parole sentences. Montgomery defined a “Miller violation” as a “case where a juvenile offender received mandatory life without parole.” 577 U.S. at 212. It explained that “prisoners like Montgomery”—i.e., those sentenced to mandatory life without parole—“must be given the opportunity to show their crime did not reflect irreparable corruption.” Id. at 213. Montgomery is silent on how the logic of its retroactivity anal- ysis applies in a case involving a discretionary life-without- parole sentence. In sum, the question presented in Montgomery was limited to the retroactivity of Miller’s prohibition on mandatory life without parole for juvenile homicide offenders. Montgomery did not employ the Court’s ordinary approach to adopting categorical rules, and it framed the practical implications of its decision in terms that apply only to mandatory sentencing schemes. At the same time, we recognize that Montgomery spoke forcefully about what the Eighth Amendment requires in any case involving a juvenile homicide offender. So while these features of Montgomery do not compel a narrow reading of its holding, we must recognize when applying section 2254(d) that they do allow a reasonable jurist looking at the No. 23-2240 19

whole body of relevant case law to read Montgomery nar- rowly, as limited to mandatory sentencing schemes. 3 2. Jones’ Narrow Reading of Miller and Montgomery Jones resolves any remaining uncertainty about whether reasonable jurists could disagree over whether the Court’s precedents establish a categorical prohibition against sentenc- ing corrigible minors to life without parole. Jones is the Court’s first (and so far only) case applying Miller and Montgomery to a discretionary life-without-parole sentence. It presented the Court with the opportunity to confirm that Montgomery’s ex- pansive rationale established a categorical prohibition that applies to both mandatory and discretionary sentences. The Jones Court did not take that step. Instead, Jones held that the petitioner’s resentencing com- plied with Miller and Montgomery “because the sentence was not mandatory and the trial judge had discretion to impose a lesser punishment in light of Jones’s youth.” 593 U.S. at 120. To reach that conclusion, Jones endorsed a narrow

3 Even before Jones, state and circuit courts split on how to read Mont-

gomery. Some courts gave Montgomery the expansive meaning that Walker attributes to it. E.g., Malvo v. Mathena, 893 F.3d 265, 274 (4th Cir. 2018); United States v. Briones, 929 F.3d 1057, 1064 (9th Cir. 2019); Commonwealth v. Batts, 163 A.3d 410, 452 (Pa. 2017). Others concluded that Miller was sat- isfied if the sentencer had the ability to choose a sentence other than life without parole. E.g., United States v. Sparks, 941 F.3d 748, 754 (5th Cir. 2019); People v. Skinner, 917 N.W.2d 292, 312–14 (Mich. 2018). These pre- Jones cases do not control Walker’s claim, but they are “indicative of a lack of clarity in the Supreme Court’s jurisprudence.” Hall v. Zenk, 692 F.3d 793, 799 (7th Cir. 2012). To be clear, however, we have reached an independent judgment as to what is “clearly established Federal law” for purposes of section 2254(d), as the Supreme Court instructed in Andrew v. White, 604 U.S. at —, 145 S. Ct. at 82. 20 No. 23-2240

interpretation of both Miller and Montgomery. Jones character- ized Miller as requiring “only that a sentencer follow a certain process” before imposing life without parole on a juvenile of- fender. Id. at 108, quoting Miller, 567 U.S. at 483. The Court rejected the petitioner’s analogy to the Court’s categorical prohibition cases “where the Court has recognized certain el- igibility criteria, such as sanity or a lack of intellectual disabil- ity, that must be met before an offender can be sentenced to death.” Id. at 107, citing first Ford v. Wainwright, 477 U.S. 399 (1986), and then Atkins v. Virginia, 536 U.S. 304 (2002). Jones located Miller instead in the line of cases requiring “the indi- vidualized consideration of mitigating circumstances in capi- tal cases.” Id. at 108. Jones then cast (or perhaps recast) Mont- gomery as holding only that Miller’s prohibition on mandatory sentencing schemes applies retroactively on collateral review. It emphasized that the Court had not granted certiorari in Montgomery to “consider whether the rule announced in Mil- ler should be expanded.” Id. at 111. Jones’ narrow interpretation of Miller revived arguments about Miller’s limits that Montgomery had expressly rejected. See Montgomery, 577 U.S. at 208–11 (explaining that the “pro- cedural component” of Miller’s holding “does not replace but rather gives effect to Miller’s substantive holding that life without parole is an excessive sentence for children whose crimes reflect transient immaturity”). And Jones’ characteriza- tion of Montgomery failed to address much of Montgomery’s reasoning. Although Jones did not explicitly address or reject Montgomery’s articulation of Miller’s substantive holding, its silence on the central premise of Montgomery’s analysis speaks volumes, at least when we are trying to apply section 2254(d)(1) and to determine the range of decisions open to No. 23-2240 21

fair-minded jurists trying to apply the Court’s decisions in this field. Jones’ holding that the Eighth Amendment does not re- quire an explicit or implicit finding of permanent incorrigibil- ity also signaled a retreat from Montgomery’s reasoning. As Justice Thomas explained in his opinion concurring in the judgment: If Montgomery is correct about the existence of a concrete class of offenders who—as a matter of fundamental constitutional law—are categori- cally exempt from a sentence of life without pa- role, then there must be a determination as to whether Jones falls within that protected class. Otherwise, the “line” Miller ostensibly “drew … between children whose crimes reflect transient immaturity and those rare children whose crimes reflect irreparable corruption” is more fanciful than real. Id. at 126 (Thomas, J., concurring in the judgment), quoting Montgomery, 577 U.S. at 209. Indeed, the Court has generally required factual findings to determine whether a prisoner is within the class of people eligible for a particular penalty. See id., citing first Moore v. Texas, 586 U.S. 133, 142 (2019) (per cu- riam), and then Madison v. Alabama, 586 U.S. 265, 273, 282 (2019); e.g., Panetti v. Quarterman, 551 U.S. 930, 949 (2007) (“Once a prisoner seeking a stay of execution has made ‘a sub- stantial threshold showing of insanity,’ the protection af- forded by procedural due process includes a ‘fair hearing’ in accord with fundamental fairness.” (quoting Ford, 477 U.S. at 426, 424 (Powell, J., concurring in part and concurring in the judgment))). Montgomery acknowledged that Miller had not 22 No. 23-2240

imposed a formal fact-finding requirement, but Montgomery was equally explicit that corrigible offenders sentenced to life without parole had been deprived of a substantive right. 577 U.S. at 209. Following Montgomery, some States adopted a va- riety of mechanisms to enforce the line that Montgomery had drawn between corrigible and incorrigible offenders. See Jones, 593 U.S. at 134–35 (Sotomayor, J., dissenting). Jones concluded, though, that the states are not under any constitutional obligation to distinguish between corrigible and incorrigible youths. “In a case involving an individual who was under 18 when he or she committed a homicide, a State’s discretionary sentencing system is both constitution- ally necessary and constitutionally sufficient.” Id. at 105. That sentence alone makes it difficult if not impossible to find that a state court has applied Supreme Court precedent unreason- ably by upholding a juvenile sentence of life without parole imposed under a discretionary standard. 4

4 In the absence of Supreme Court guidance on what qualifies as a

corrigibility finding, AEDPA deference is warranted for the additional reason that reasonable jurists could disagree about whether Walker’s sen- tencing judge actually found him capable of change. The line between a conscientious discussion of mitigating factors and a finding of corrigibility may be difficult to draw. The transcript of Walker’s sentencing hearing reveals that the sentencing judge acknowledged Walker’s difficult child- hood and expressed sympathy for the limited array of choices that he faced. The judge also expressed “hope” that Walker would be able to de- velop healthy relationships and grow as a person while he was incarcer- ated. The district court here treated these remarks as amounting to a find- ing of corrigibility, but reasonable jurists could disagree. Cf. United States v. Grant, 9 F.4th 186, 192 (3d Cir. 2021) (en banc) (sentencing judge said that defendant was “not that rarest [] exception referenced in Miller, where the lifetime without parole is appropriate”). No. 23-2240 23

After Jones, the status of Montgomery’s declaration that life without parole is an unconstitutional punishment for juvenile offenders capable of change, without apparently having been limited to sentences imposed under mandatory sentencing laws, simply is not clear. Although Jones reaffirmed that Miller applies retroactively, it stands in considerable tension with Montgomery’s explanation for Miller’s retroactivity. To be sure, Walker has offered a reasonable way of resolv- ing the tension between Montgomery and Jones. Even if no fac- tual finding of permanent incorrigibility is required, it does not necessarily follow that a sentencing judge could find a ju- venile homicide offender capable of change and still sentence him to life without parole. But this case comes to us on habeas review, not on direct appeal. The question before us is not whether we can or how we should best reconcile the Court’s precedents. It is whether any fair-minded jurist could con- clude that in a case involving a juvenile homicide offender sentenced to life without parole, the Eighth Amendment is satisfied by an individualized sentencing procedure. In light of Jones’ narrow reading of the Court’s own case law, the an- swer to that question must be yes. 5 It was not unreasonable for the Wisconsin Court of Ap- peals to apply the clear holdings of Miller and Jones and to leave the implications of Montgomery for discretionary life- without-parole sentences to be resolved by the Supreme Court in a future case. The state court was not required to

5 The Third Circuit sitting en banc rejected on direct appeal the same

claim that Walker makes now. See United States v. Grant, 9 F.4th 186 (3d Cir. 2021) (en banc). Its decision supports our conclusion that the Wiscon- sin Court of Appeals’ decision was not an unreasonable application of clearly established federal law. 24 No. 23-2240

anticipate a future decision holding that a sentencing judge’s comment that a juvenile offender is capable of change entitles him to a meaningful opportunity for release during his life- time, no matter how heinous the homicide. That may or may not be the “logical next step” in the Court’s jurisprudence on juvenile homicide offenders, but for now, it suffices to observe that “there are reasonable arguments on both sides.” White v. Woodall, 572 U.S. 415, 427 (2014). Because the state court rea- sonably applied Jones and because Montgomery does not com- pel a different conclusion, the district court’s denial of habeas relief is AFFIRMED.