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Its not enough that the rule be fundamental in some abstract sense, right, but it has to itself represent a change in bedrock procedural understandings, and we dont think miller does that. We also dont think its necessary to an accurate determination of a sentence. It would enhance the accuracy of the sentence, but its not necessary. And the other point there is this court has never held that a pure sentencing rule can qualify under watershed because after all, this court has on many occasions said that a watershed rule is necessary to the accurate determination of guilt or innocence. And here...

To the state court. And yet people say you should decide the scope question even though the underlying issue may be one of state law. And then finally to the solicitor generals new argument that theres going to be review in this court and de novo review on habeas, the statutory lang wage in 2254d is pretty broad. Quote, any claim that was adjudicated on the merits in state court proceeding, the only claim in this case is remedy. This case was filed after miller was decided. The only issue in this case is redress. And it would be very wonderful turn if you could say on the one hand that 2254d d...

Procedural side. Have any states treated miller as retroactive on state habeas . Yes. The majority of states its a close call. I think its maybe 10 to 7 or 10 to 8, but the majority of states that have reviewed this have concluded that miller is retroactive. Most have done it as a matter of substantive law. There are a couple of opinions that talk about the watershed exception which is not the way we think this case should be analyzed. Not only the states have done that, but the United States has taken that position with respect to the juveniles that were sentenced before miller to life withou...

The word between your formulation and petitioners formulation that says this is substantive because it did away with mandatory life imprisonment . Youre articulating it slightly different. Tell me what you see as the difference and why your articulation. Justice sotomayor. I dont think there is substantive day light between. Petitioners use and ours. It meant in treating it as a category. I think sums up the reality of what is happening. We broke it out into its Component Parts because i think it facilitates the analysis of it to understand that miller does have a procedural component. Sentenc...

Guidelines range was not truly mandatory. So even under the mandatory guidelines which for sixth amendment purposes were treated as if they established elements of the offense, for the purposes that were looking at here, they are not mandatory in the same way. So booker brought about a procedural change. What is the substantive difference to pardon the use of the word between your formulation and petitioners formulation that says this is substantive because it did away with mandatory life imprisonment . Youre articulating it slightly different. Tell me what you see as the difference and why yo...