ORIGINAL PROCEEDING ON PETITIONS FOR WRITS OF HABEAS CORPUS
Before Francis, C.J., Rahmeyer, J., Bates, J., Lynch, J., Burrell, J., Sheffield, J., and Richter, Special Judge
Petitioner Jerrell Brooks and petitioner Aaron Robinson were sentenced to life without parole for murders committed when they were seventeen years old. Both petitioned this Court for writs of habeas corpus claiming that Miller v. Alabama, __U.S. __, 132 S.Ct. 2455, 2469 (2012), applies retroactively and they must be resentenced with consideration of mitigating facts and circumstances. Because of the similarity of their claims, the cases were consolidated for purposes of oral argument and are hereby consolidated for purposes of opinion. We determine that petitioners' initial sentencings cannot be disturbed because their claims are procedurally barred, and accordingly their petitions are denied.
Factual and Procedural Background
A jury found Brooks guilty of first-degree murder occurring on September 21, 2002, under an accomplice theory, see section 565.020. Brooks was a member of a group of four men that decided to kill Curtis Crothers. This group arrived at the home where Crothers was staying and Brooks stood guard by the door while all occupants of the home were killed. Brooks was seventeen years old at the time of the murders. The trial court sentenced Brooks to life without parole. His conviction was affirmed on direct appeal. State v. Brooks, 205 S.W.3d 281 (Mo.App. 2006). His Rule 29.15 motion for post-conviction relief was denied on June 25, 2009, and that decision was affirmed. Brooks v. State, 333 S.W.3d 533 (Mo.App. 2011).
A jury found Robinson guilty of first-degree murder, see section 565.020, occurring on December 16, 2006. Robinson was involved in a fist fight with Karado Peebles. The fighting escalated, Robinson shot Peebles five times, and Peebles died. Robinson was also seventeen at the time this murder was committed and sentenced to life without parole. His conviction was affirmed on direct appeal. State v. Robinson, 330 S.W.3d 867 (Mo.App. 2011). Robinson filed a Rule 29.15 motion for post-conviction relief that remains pending, but the time for filing an amended motion has expired.
Both petitioners were found guilty of first-degree murder under section 565.020, which provides:
1.A person commits the crime of murder in the first degree if he knowingly causes the death of another person after deliberation upon the matter.
2. Murder in the first degree is a class A felony, and the punishment shall be either death or imprisonment for life without eligibility for probation or parole, or release except by act of the governor; except that, if a person has not reached his sixteenth birthday at the time of the commission of the crime, the punishment shall be imprisonment for life without eligibility for probation or parole, or release except by act of the governor.
Section 565.020 (emphasis added). This statute makes it clear that a seventeen-year-old offender must be sentenced to "either death or imprisonment for life without eligibility for probation or parole[.]" Section 565.020.2. In 2005, after Brooks' conviction but before Robinson's conviction, the United States Supreme Court held that a seventeen-year-old cannot be sentenced to death because the Eighth Amendment prohibits the death penalty for defendants who commit first-degree murder at age seventeen years or younger. See Roper v. Simmons, 543 U.S. 551 (2005). Accordingly, life without parole became the only statutorily authorized punishment under section 565.020 when a juvenile commits first-degree murder. Both petitioners were sentenced to life without parole; Brooks because the sentencing judge chose that rather than death and Robinson because it was the only sentence available.
In 2012, the Supreme Court of the United States held that the Eighth Amendment to the United States Constitution prevented a juvenile from being sentenced to life without parole without consideration of the mitigating facts and circumstances that might make that sentence unjust. Miller v. Alabama, ___U.S. __, 132 S.Ct. 2455, 2469 (2012). Therefore, a sentencing scheme that provides only death or life without parole violates the Eighth Amendment because it does not permit consideration of the mitigating factors of youth or the nature of their crimes. Both petitioners argue that Miller applies retroactively such that their cases must be remanded for resentencing that considers these mitigating factors in the same manner as done in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013). The Supreme Court of Missouri applied Miller in Hart, a case on direct appeal, because the State conceded that Miller was applicable. Hart, 404 S.W.3d at 235 n.3. In ...