Jackson v. Vannoy

United States Court of Appeals
for the Fifth Circuit

No. 19-30772

Antonio M. Jackson,

Petitioner—Appellant,

versus

Darrel Vannoy, Warden, Louisiana State Penitentiary,

Respondent—Appellee.

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:19-CV-665

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 (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. For those
juvenile offenders who received such an unconstitutional sentence before the
Supreme Court announced this rule, the state must provide consideration for
United States Court of Appeals
Fifth Circuit
FILED
November 23, 2020

Lyle W. Cayce
Clerk

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parole eligibility or resentencing. Montgomery v. Louisiana, 136 S. Ct. 718, 736
(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. 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.

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2013). The state trial court denied Jackson’s motion in December 2013.
Jackson, 243 So. 3d at 10.
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 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

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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 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 (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;

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(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
(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. 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 (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 consideration of the factual or legal bases adduced
in support of the claims.’” Buck v. Davis, 137 S. Ct. 759, 773 (2017) (quoting
Miller-El, 537 U.S. at 336).
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 (2010) (quoting
Woodford v. Viscotti, 537 U.S. 19, 24 (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

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unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or “resulted in a decision that
was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–
(2). Clearly established federal law comprises “the holdings, as opposed to
the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state-
court decision is contrary to clearly established federal law when it “arrives
at a conclusion opposite to that reached by [the Supreme Court] on a question
of law or if the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts.” Id. at 413. A state-
court decision fails the “unreasonable application” prong if it “identifies the
correct governing legal rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of the particular state prisoner’s case,” or
if it “extends a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.” Id. at 407.
Thus, to obtain a COA, Jackson must show that “jurists of reason
could disagree with the district court’s conclusion that the state court’s
decision was not [contrary to or] an unreasonable application of clearly
established federal law and was not based upon an unreasonable
determination of the facts in light of the evidence presented.” Halprin v.
Davis, 911 F.3d 247, 255 (5th Cir. 2018).
A.
The first two issues that Jackson seeks to certify for appeal share the
same premise: that his new sentence is without legislative authorization.
Louisiana’s second-degree murder statute prescribes only one possible
penalty irrespective of the offender’s age: mandatory “life imprisonment at

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hard labor without benefit of parole, probation, or suspension of sentence.”
La. R.S. 14:30.1(B). Under Miller and Montgomery, that sentence cannot
constitutionally be applied to those who were juveniles when they committed
their underlying offenses, including Jackson.
For that reason, in 2013, the Louisiana Legislature passed two
statutes—La. Code Crim. Proc. art. 878.1 and La. R.S. 15:574.4—that aimed
to cure unconstitutional life-without-parole sentences through hearings on
consideration for parole eligibility. But Jackson argues that these provisions
do not cure the constitutional defect in his situation. First, he notes that
neither statute “embed[s] . . . a specific range of punishment” in the statute
governing the substantive offense of second-degree murder, which to this day
mandates life without parole. Second, Jackson stresses that, at the time of his
October 2016 resentencing, the two statutes applied only prospectively to
new prosecutions postdating the statutes’ 2013 effective dates. Jackson takes
this to mean that the Louisiana Supreme Court lacked the power to order that
the statutes be applied retroactively to cases like his. As a result, Jackson
argues, the “statutory text” neither gives “fair notice of the substantive
penalty with a specific range for the offense” nor authorizes the particular
“substantive penalty” that has been imposed on Jackson. This argument is
not without some logical appeal.
It also finds some support in Supreme Court precedent. The Court
has instructed more than once, after all, that “statutes fixing sentences must
specify the range of available sentences with sufficient clarity” if they are to
pass constitutional muster. Beckles v. United States, 137 S. Ct. 886, 892 (2017)
(internal quotation marks and citations omitted). And “[i]n our system, so
far at least as concerns the federal powers, defining crimes and fixing
penalties are legislative, not judicial, functions.” United States v. Evans, 333

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U.S. 483, 486 (1948).
1
Louisiana’s system operates much the same way. See
La. R.S. 15:321(a) (“The enactment of statutes defining criminal offenses and
the establishment of ranges of penalties for those offenses is a matter of
substantive law solely within the prerogative of the legislature. The
determination and imposition of sentence in particular cases is generally the
function of the sentencing court, subject to appellate review and to
mandatory sentences provided by law.”). The upshot of this separation of
powers is that, “[a]bsent a statutory exception,” a court typically “lacks
authority to impose a sentence below th[e] [mandatory] minimum.” United
States v. Sealed Appellee, 887 F.3d 707, 709 (5th Cir. 2018); see also Williams
v. New York, 337 U.S. 241, 247 (1949) (noting that a sentencing judge’s broad
discretion to impose a sentence is limited by the “fixed statutory or
constitutional limits [regarding] the type and extent of punishment after the
issue of guilt” has been resolved); State v. Guidry, 221 So. 3d 815, 824 (La.
2017) (observing that “legislatively-determined mandatory minimum
sentences . . . remove[] the discretion historically afforded to judges during
sentencing”).
The thrust of Jackson’s argument has met with success elsewhere. In
United States v. Under Seal, the federal government attempted to prosecute a
juvenile offender as an adult under a federal statute that prohibits murder in
aid of racketeering. 819 F.3d 715, 717 (4th Cir. 2016). That statute provides
for only two punishments: death or life without parole. Id. at 718, 719 & n.4
(citing U.S.C. § 1959(a)(1)). Like Louisiana’s second-degree murder statute,

1
See also Harris v. United States, 536 U.S. 545, 557 (2002) (explaining that defining criminal
conduct, including its appropriate punishment, is “a task generally left to the legislative branch”);
Mistretta v. United States, 488 U.S. 361, 364 (1989) (“Congress, of course, has the power to fix the
sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject
to congressional control.” (citations omitted)).

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therefore, the federal statute does not authorize any punishment that may be
constitutionally imposed on juvenile offenders. The government conceded as
much before the Fourth Circuit but argued that the court could sever the
unconstitutional mandatory minimum of life imprisonment and employ the
sentencing range of any term of years up to a discretionary maximum
sentence of life applicable to a separate kidnapping offense in the same
subsection. Id. at 721. But the court rejected that invitation as “nothing less
than judicial legislation pure and simple.” Id. at 725–26 (citation omitted).
Because the statute did not authorize any penalty that could constitutionally
be imposed on the juvenile defendant and did not provide fair warning of any
judicially crafted lesser penalty,
2
the court held that the prosecutions could
not constitutionally proceed. Id. at 726–28.
This court has not squarely addressed the subject, but it has observed
that the general point pressed by Jackson presents “an important
constitutional question that may deserve a thorough review when the
appropriate time comes.” Sealed Appellee 1 v. Sealed Juvenile 1, No. 15-20262,
slip op. at 6 (5th Cir. Mar. 9, 2018) (unpublished) (declining, on ripeness
grounds, to reach constitutionality of prosecution of juvenile under federal
statute containing mandatory minimum of life imprisonment). On first blush,
that time might appear to be at hand: it seems at least debatable whether a
juvenile offender may constitutionally be resentenced to a punishment that,

2
See Under Seal, 819 F.3d at 726 (“Our concerns about lack of notice arise from the
Government urging us to look outside the express language of the stated offense for an acceptable
alternative penalty. When the crime at issue in this case occurred, Congress unambiguously
informed individuals that murder in aid of racketeering was punishable by death or mandatory life
imprisonment. Congress provided for no other penalty. However, a juvenile like the Defendant
could not be sentenced to either of those punishments after Miller. Nor would that juvenile have
notice at the time of the alleged crime that he could be subject to any other punishment, such as
imprisonment to a term of years.”).

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while consistent with Miller, is not authorized by the statute governing the
substantive criminal offense. Compare Under Seal, 819 F.3d at 726
(supporting the negative side of the debate),
3
with United States v. Conyers,
227 F. Supp. 3d 280, 290–91 (S.D.N.Y. 2016) (supporting the affirmative
side by rejecting juvenile offender’s due process claim and allowing the
government to proceed with prosecuting defendant as an adult under the
federal murder-in-aid-of-racketeering statute).
Nonetheless, the Louisiana Legislature has made other arrangements.
Article 878.1 of the Code of Criminal Procedure, as it existed when Jackson
was resentenced, required a state trial court to conduct a hearing before
imposing a life-without-parole sentence on a juvenile murder defendant.
State v. Evans, 245 So. 3d 1112, 1117–18 (La. Ct. App. 2018). Section
15:574.4(E), in turn, “provided the conditions, including serving 35 years
(now 25 years) of the sentence imposed, before the defendant could apply to
the parole board for parole consideration.” Id. at 1118.
But the same year these statutes were enacted, the Louisiana Supreme
Court held that they applied only prospectively to new offenders not yet
sentenced. See Tate, 130 So. 3d at 844. Subsequent efforts to amend the
statutes to make them retroactive stalled during the 2016 legislative session.
Montgomery, 194 So. 3d at 608. So, at the time of Jackson’s resentencing,
these statutes were employed solely by virtue of the Louisiana Supreme

3
The Fourth Circuit did point out that the rule for juveniles prosecuted post-Miller may
differ from that for those prosecuted pre-Miller. Under Seal, 819 F.3d at 728 (“Whatever the
appropriate remedies may be for those juvenile offenders who were convicted and sentenced prior
to Miller, they stand on entirely different ground than the Defendant. This case only requires
considering whether initiating prosecution of a juvenile for murder in aid of racketeering alleged to
have occurred after Miller would be unconstitutional because the sentencing court could not
constitutionally impose the only two authorized penalties for that offense.”). Nevertheless, the
Fourth Circuit’s rationale can reasonably be read to broadly support Jackson’s position.

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Court’s “guidance” in lieu of legislative action. Id. It was not until August
2017—the year after Jackson’s resentencing—that the Legislature amended
Article 878.1 and Section 15:574.4 to make them retroactive. State v. Brooks,
247 So. 3d 1071, 1074 (La. Ct. App. 2018). So, Jackson was indeed
resentenced under a substantive criminal statute to a penalty not authorized
by that statute, at a time when no other supplemental statute authorized
courts to modify the sentences of defendants in Jackson’s position to bring
them into compliance with Miller (that only came later).
The problem for Jackson is that, irrespective of any defects in his
October 2016 resentencing and any putative relief in the form of another
resentencing under a now-constitutional statutory scheme, the current,
retroactive versions of Article 878.1 and Section 15:574.4 require that he
receive the exact same sentence and consideration for parole eligibility. Under
the 2017 amendments, Section 15:574.4(G) governs Jackson’s parole
eligibility.
4
See id. That section provides that, so long as certain conditions
are met, a person serving a life sentence for second-degree murder is entitled
to parole eligibility “[n]otwithstanding any provision of law to the contrary.” La.
R.S. 15:574.4(G) (2017) (emphasis added). In other words, even though the
second-degree murder statute does not itself authorize Jackson’s modified
sentence, a separate, overriding, retroactive provision now does. And these
provisions combine to mandate the same sentence—life imprisonment with
the possibility of parole, with parole eligibility to be determined under
Section 15:574.4—as Jackson’s operative sentence. That result obtains

4
La. Code Crim. Proc. art. 878.1(b)(2)(a) (“If an offender was indicted prior to August 1,
2017, for the crime of . . . 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 and a hearing was held pursuant to
this Article prior to August 1, 2017, the following shall apply: (a) If the court determined at the
hearing that was held prior to August 1, 2017, that the offender’s sentence shall be imposed with
parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G).”).

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automatically and without any rehearing. See La. Code Crim. Proc. art.
878.1(b)(2)(a) (“If the court determined at the hearing that was held prior to
August 1, 2017, that the offender’s sentence shall be imposed with parole
eligibility, the offender shall be eligible for parole pursuant to R.S.
15:574.4(G).” (emphasis added)). Accordingly, Jackson’s “argument that, in
granting him parole eligibility, the trial court exceeded its authority, and
violated due process and the separation of powers[,] is moot.” Brooks, 247
So. 3d at 1074; see also Cty. of L.A. v. Davis, 440 U.S. 625, 631 (1979) (“[A]
case is moot when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.”) (citation omitted).
“Mootness, of course, is a fundamental bar to judicial review that
must be accounted for at all stages of a proceeding, and applies in habeas as
in any other type of litigation”—including at the COA stage. Miller v. Glanz,
331 F. App’x 608, 610 (10th Cir. 2009) (unpublished opinion) (denying COA
on mootness grounds). See also Norman v. Stephens, 817 F.3d 226, 234 (5th
Cir. 2016) (same). Even if Jackson were correct about the first two alleged
constitutional flaws in his October 2016 resentencing, his claims are moot.
See, e.g., Perkins v. Cain, 2018 U.S. Dist. LEXIS 48427, at *6 (M.D. La. Feb.
28, 2018) (“Petitioner’s claim has since been rendered moot because
Petitioner has effectively been statutorily re-sentenced by operation of recent
amendments to Louisiana law [Article 878.1 and Section 15:574.4] such that
he is now eligible for parole consideration in accordance with certain
statutory requirements.”). Jackson therefore is not entitled to a COA on
these issues.
B.
Jackson next invokes the Ex Post Facto Clause. Article I, § 10 of the
United States Constitution prohibits the ex post facto application of a
criminal law by the state. Jackson argues that his sentence of life

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imprisonment with parole eligibility under La. R.S. 15:574.4 violates this
prohibition. This one is not up for debate: Jackson is wrong.
Retroactive application of a law violates the Ex Post Facto Clause only
if it: (1) “punish[es] as a crime an act previously committed, which was
innocent when done;” (2) “make[s] more burdensome the punishment for a
crime, after its commission;” or (3) “deprive[s] one charged with crime of
any defense available according to law at the time when the act was
committed.” Collins v. Youngblood, 497 U.S. 37, 52 (1990). Only the second
could possibly apply here; and it does not. See Peugh v. United States, 569 U.S.
530, 539 (2013) (retrospective application of law only satisfies this category if
it “changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed” (quoting Calder v. Bull, 3 U.S. 386,
390 (1798))). The Supreme Court’s pronouncements in Miller and
Montgomery necessitated a change in Louisiana’s sentencing scheme for
second-degree murder. While the state court did indeed retroactively apply
Louisiana’s new sentencing scheme to Jackson, it did not impose an increase
in penalty or any other disadvantage. Quite the opposite: Jackson benefitted
by receiving a less burdensome life sentence that affords him eligibility for
parole consideration after 25 years’ imprisonment. La. R.S.
15:574.4(E)(1)(a). Jackson therefore is not entitled to a COA on this issue
either.
C.
The final issue that Jackson seeks to certify for appeal is whether his
sentence is unconstitutionally disproportionate under the Eighth
Amendment. Jackson argues that Article 878.1 and Section 15:574.4
contravene Miller and Montgomery by refusing district courts any discretion
to consider mitigating factors and impose individualized sentences less than

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life with the opportunity for parole. He demands a resentencing that takes his
“life and characteristics” into account.
Jackson misapprehends the constitutional right recognized in Miller.
The Supreme Court held only that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders.” Miller, 567 U.S. at 479 (emphasis added). It does not
disallow sentences of life imprisonment with the opportunity for parole for a
juvenile homicide offender. Nor is it clearly established that courts must
consider mitigating factors of youth before imposing such a sentence.
Presently, all that is clearly established is that a sentencing court must
consider youth-related mitigating factors in those cases in which it does
impose a juvenile life-without-parole sentence. Id.; see also Montgomery, 136
S. Ct. at 733. Jackson’s case is not among them.
* * *
For the foregoing reasons, IT IS ORDERED that Jackson’s motion
for a certificate of appealability is DENIED.

___________________________
Stephen A. Higginson
United States Circuit Judge