In re: Jarius Phillips , 879 F.3d 542 ( 2018 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-9566
In re: JARIUS DAMAR PHILLIPS,
Movant.
Argued: December 5, 2017 Decided: January 16, 2018
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Motion for authorization under 28 U.S.C. § 2244 to file a successive habeas petition
under 28 U.S.C. § 2254 denied by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Shedd and Judge Duncan joined.
ARGUED: Damon Clarke Andrews, KIRKLAND & ELLIS LLP, Washington, D.C., for
Movant. Joseph Christian Obenshain, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Respondent. ON BRIEF: Robert L. Littlehale,
Matthew S. Brooker, James Bowden, Jr., KIRKLAND & ELLIS LLP, Washington, D.C.,
for Movant. Victoria N. Pearson, Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent.
NIEMEYER, Circuit Judge:
On June 24, 2016, Jarius Phillips filed a motion in this court under 28 U.S.C.
§ 2244(b)(3)(A), seeking authorization to file a second or successive application in the
U.S. District Court for the Eastern District of Virginia for a writ of habeas corpus to
challenge his 2001 sentence of four life terms plus 45 years imposed by a Virginia state
court for nonhomicide crimes he committed as a juvenile. His motion contends that his
sentence violates the Eighth Amendment’s Cruel and Unusual Punishments Clause, as
construed in: Graham v. Florida, 560 U.S. 48, 75 (2010) (holding that, under the Eighth
Amendment, juvenile offenders convicted of nonhomicide crimes may not be sentenced
to life in prison without parole and that such offenders must be given “some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation”); Miller
v. Alabama, 567 U.S. 460, 476, 483 (2012) (holding that, under the Eighth Amendment,
juvenile homicide offenders may not receive “mandatory life-without-parole sentences”
and that, before sentencing such offenders to life without parole, the sentencing court
must consider their “youth and attendant characteristics” (emphasis added)); and LeBlanc
v. Mathena, No. 2:12-cv-340, 2015 WL 4042175 (E.D. Va. July 1, 2015) (granting
habeas relief to a Virginia juvenile nonhomicide offender serving two life terms with the
possibility of “geriatric release” at the age of 60 after concluding that Virginia courts had
unreasonably applied Graham).
After we affirmed the decision in LeBlanc, see 841 F.3d 256 (4th Cir. 2016), we
appointed counsel to represent Phillips on his motion in this case. After doing so,
however, the Supreme Court reversed our decision in LeBlanc. See Virginia v. LeBlanc,
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137 S. Ct. 1726, 1729 (2017) (per curiam) (holding that “it was not objectively
unreasonable for the state court to conclude that, because [Virginia’s] geriatric release
program employed normal parole factors, it satisfied Graham’s requirement that
juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive
parole”).
We now deny Phillips’s motion because the claim that he seeks to present to the
district court was raised in his first federal application for a writ of habeas corpus, and
therefore Phillips has not made a “prima facie showing” that his successive habeas
application would allege a claim that was not “presented in a prior application,” as the
statute requires. 28 U.S.C. § 2244(b)(3)(C); id. § 2244(b)(1).
I
In January 2001, a jury impaneled in the Circuit Court for the City of Newport
News, Virginia, convicted Phillips of two counts of abduction with intent to defile, in
violation of Va. Code Ann. § 18.2-48; one count of rape, in violation of § 18.2-61(A)(i);
one count of object sexual penetration, in violation of § 18.2-67.2(A)(1); one count of
malicious wounding, in violation of § 18.2-51; and one count of robbery, in violation of
§ 18.2-58. Phillips committed these crimes on March 4, 2000, when he was 17 years old.
After considering a presentence report and Virginia’s discretionary sentencing
guidelines, the trial court sentenced Phillips to four terms of life imprisonment on the
convictions for abduction with intent to defile, rape, and object sexual penetration, plus
20 years’ imprisonment for the malicious wounding conviction and 25 years’
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imprisonment for the robbery conviction. While Virginia had abolished traditional parole
for felony offenders, see Va. Code Ann. § 53.1-165.1, Phillips was nonetheless subject to
Virginia’s “geriatric release” program, which “allows older inmates to receive
conditional release under some circumstances,” LeBlanc, 137 S. Ct. at 1727 (citing Va.
Code Ann. § 53.1-40.01).
Phillips appealed the judgments to the Court of Appeals of Virginia, which denied
his appeal by orders dated November 21, 2001, and February 5, 2002. The Supreme
Court of Virginia refused his further appeal on May 31, 2002, and denied his petition for
rehearing on July 30, 2002. Phillips filed a state habeas petition in the trial court on
September 12, 2003, which the court dismissed on November 10, 2003, as time-barred,
and the same court denied his motion for reconsideration on December 17, 2003. The
Virginia Supreme Court dismissed his petition for appeal on July 1, 2004, as untimely.
Nearly 10 years later, on June 7, 2013, Phillips, acting pro se, filed an application
for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia,
pursuant to 28 U.S.C. § 2254, claiming that he had been sentenced to life without parole
for crimes he had committed as a juvenile, in violation of the Eighth Amendment, and
seeking an order requiring the Newport News Circuit Court to resentence him. He
divided his Eighth Amendment claim, advancing two separate grounds for review. In
“Ground One,” he alleged that his sentence was unconstitutional because he “was a
juvenile convicted of a non-homicidal offense and given multiple life sentences without
the possibility of parole,” and for support, he cited and quoted at length from the
Supreme Court’s 2010 decision in Graham v. Florida. In “Ground Two,” he alleged,
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“Life in prison without possibility of parole sentence for juveniles violates [the] Eighth
Amendment,” and for support, he cited and quoted at length from the Supreme Court’s
2012 decision in Miller v. Alabama. In concluding, Phillips argued that his application
was timely under 28 U.S.C. § 2244(d) due to the Supreme Court’s decisions “in 2010 and
again [in] 2012,” “prohibiting life without possibility of parole to juvenile offenders.”
Several months after filing his application, Phillips filed a motion for summary
judgment in which he succinctly repeated his argument that, because he “was a juvenile
when convicted of non-homicidal offenses and given (4) life terms plus 45 years,” his
sentence was “in clear violation of the United States Constitutional ban on cruel and
unusual punishment as set forth in Graham and Miller.” (Citations omitted).
The Director of the Virginia Department of Corrections filed a motion to dismiss
Phillips’s habeas application, contending that his Eighth Amendment claim was untimely
under 28 U.S.C. § 2244(d)(1)(C), since, inter alia, Phillips had filed his habeas
application more than one year after the Supreme Court decided Graham. The Director
also filed an opposition to Phillips’s motion for summary judgment, arguing on the merits
that Phillips’s life sentences did not violate the rule in Graham because Phillips would be
eligible for parole under Virginia’s geriatric release program. In support, the Director
cited the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386,
402 (Va. 2010) (holding that Virginia’s geriatric release program provided juvenile
nonhomicide offenders serving life sentences with a meaningful opportunity for release
based on demonstrated maturity and rehabilitation, as required by Graham).
5
A magistrate judge recommended that the district court grant the Director’s
motion to dismiss Phillips’s habeas application on the ground that the application was
time-barred under § 2244(d)(1) and Phillips did not qualify for equitable tolling of the
time limitation. By order dated May 21, 2014, the district court adopted the magistrate
judge’s report and recommendation, dismissed Phillips’s habeas application with
prejudice, and declined to issue a certificate of appealability. On Phillips’s appeal, we
too denied a certificate of appealability and dismissed his appeal in an unpublished per
curiam order dated October 24, 2014.
Nearly a year later, on October 15, 2015, Phillips filed a second application in the
Eastern District of Virginia for a writ of habeas corpus under § 2254, again challenging
the constitutionality of his life sentences for nonhomicide crimes he committed as a
juvenile and this time relying on the July 1, 2015 decision of the district court in LeBlanc,
which granted habeas relief to another Virginia juvenile nonhomicide offender sentenced
to life imprisonment. In LeBlanc, the district court concluded that Virginia courts had
unreasonably applied Graham in holding that the Commonwealth’s geriatric release
program provided juvenile nonhomicide offenders serving life sentences with the
necessary meaningful opportunity for release. By order dated May 20, 2016, the district
court in this case dismissed Phillip’s application without prejudice because Phillips had
failed to obtain a prefiling authorization from this court, as required by 28 U.S.C.
§ 2244(b)(3) for a second or successive habeas application.
Phillips accordingly filed the current motion in this court on June 24, 2016, for an
order authorizing the district court to consider his second or successive habeas
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application. The motion alleges that Phillips’s life sentences for juvenile nonhomicide
offenses were unconstitutional as cruel and unusual punishments under Graham, Miller,
and the district court’s decision in LeBlanc.
We placed Phillips’s motion in abeyance by order dated July 18, 2016, pending
our review of the district court’s decision in LeBlanc. After we affirmed the grant of
habeas relief in LeBlanc, we appointed counsel to represent Phillips in this proceeding.
After counsel’s appointment, but before any briefs were filed, the Supreme Court
reversed our decision in LeBlanc, holding that, under 28 U.S.C. § 2254(d)(1), “it was not
objectively unreasonable for the state court to conclude that, because the geriatric release
program employed normal parole factors, it satisfied Graham’s requirement that
juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive
parole.” LeBlanc, 137 S. Ct. at 1729. We now address Phillips’s motion.
II
Before a person in state custody may file a second or successive habeas
application in a federal district court, he must obtain authorization from “the appropriate
court of appeals” by filing a motion “for an order authorizing the district court to consider
the application.” 28 U.S.C. § 2244(b)(3)(A). The court of appeals may grant such a
motion “only if it determines that the application makes a prima facie showing that [it]
satisfies the requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). As relevant here, the
application must thus make a prima facie showing: (1) that the second or successive
application presents a claim that was not “presented in a prior application,” id.
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§ 2244(b)(1); and (2) that such “claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable,” id. § 2244(b)(2)(A).
The term “prima facie showing” means that it must at least “appear[] reasonably
likely” that the second or successive application satisfies the § 2244(b) requirements so as
to “warrant a fuller exploration by the district court” as to whether they are actually
satisfied. In re Williams, 330 F.3d 277, 281 (4th Cir. 2003) (emphasis added) (quoting
Bennett v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)); see also 28 U.S.C.
§ 2244(b)(4) (providing that “[a] district court shall dismiss any claim presented in a
second or successive application that the court of appeals has authorized to be filed unless
the applicant shows that the claim satisfies the requirements of [§ 2244]”). Moreover,
because § 2244 provides that a “court of appeals may authorize the filing of a second or
successive application only if it determines” that the applicant has made a prima face
showing as to § 2244(b)’s requirements, 28 U.S.C. § 2244(b)(3)(C) (emphasis added), we
have concluded that while the prima facie showing is a necessary condition to receiving
prefiling authorization, the statute does not limit this court to considering only this
necessary condition. See In re Vassell, 751 F.3d 267, 271 (4th Cir. 2014) (“[W]hile our
primary consideration in reviewing a request for authorization in this kind of case is
whether the applicant made the requisite prima facie showing,” nothing in “§ 2244
requires us to ignore other considerations and authorize the filing of a successive [habeas
application] that, for instance, would clearly be time-barred”).
8
Turning to the motion now before us, Phillips originally sought authorization to
file a second or successive habeas application challenging the constitutionality of his
sentences under Graham and Miller, as well as under the district court’s now reversed
decision in LeBlanc. With the benefit of counsel, however, Phillips has clarified his
position to assert that he “is relying on only Miller for purposes of this proceeding.” In
doing so, he contends that he is eligible for prefiling authorization under § 2244(b)(3)(C)
because he has made at least a prima facie showing (1) that his second or successive
habeas application would present a claim that “relies on” Miller; (2) that Miller
established “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court”; and (3) that Miller was “previously unavailable” to him in
2013 when he filed his first federal habeas application because Miller was only “made
retroactive to cases on collateral review by the Supreme Court” in its 2016 decision in
Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016). He argues further, for essentially
the same reason, that when he filed his previous habeas application, he was legally
incapable of “presenting” a Miller claim, as the term “present” is used in § 2244(b)(1),
because Miller had not then become retroactive. According to him, his second
application thereby now satisfies the requirements of both § 2244(b)(1) and (b)(2)(A).
As already noted, to obtain authorization to file a second or successive application,
Phillips must first make a prima facie showing that his proposed application would
present a claim that was not presented in a prior application. 28 U.S.C. § 2244(b)(3)(C);
id. § 2244(b)(1) (providing in full, “A claim presented in a second or successive habeas
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corpus application under section 2254 that was presented in a prior application shall be
dismissed”). Phillips, however, has failed to make such a showing.
In his 2013 application, Phillips relied extensively on Miller to attempt to obtain
habeas relief. In the second of the two grounds that he advanced for relief in that
application, he stated:
GROUND TWO: Life in prison without possibility of parole sentence for
juveniles violates Eighth Amendment[.] Miller v. Alabama[,] Nos[.] 10-
9646, 10-9647[,] Argued March 20, 2012[,] Decided June 25, 2012[.]
Decision of the United States Supreme Court, held that mandatory life
imprisonment 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 punishment (See Atth[.] B[)].
* * *
Atth[.] B[.] Miller v Alabama
Ground Two cont’d. [Miller] [s]tates “Mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth
Amendment prohibition on cruel and unusual punishment[.]”
Also sentencing and punishment under Constitutional Amendment VIII
states that “the Eighth Amendment prohibits a sentence of life without the
possibility of parole for a child who committed a nonhomicide offense[.]”
Again, [i]mposition of a State’s most severe penalties on juvenile offenders
cannot proceed as though they were not children.
Again [t]he characteristics of youth, and the way they weaken rationales for
punishment[,] can render a life-without-parole sentence disproportionate
punishment for a juvenile.
The U.S. Supreme Court held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile offenders.[”]
10
In his current motion, Phillips seeks leave to file a successive habeas application to
present again a claim based on Miller, and therefore we must deny his motion for
authorization. See Williams, 330 F.3d at 282 (noting that “claims recycled from [the
applicant’s] previous § 2254 application . . . may not form the basis for the granting of
pre-filing authorization because review is barred under § 2244(b)(1)”).
Phillips concedes that he “raised in his initial postconviction proceeding the Miller
claim he now seeks to advance in his second proceeding.” But he argues nonetheless that
he should be deemed as having not previously “presented” his Miller claim within the
meaning of § 2244(b)(1) because, at the time of his 2013 application, Miller had not been
made retroactively applicable to cases on collateral review. To make this argument, he
relies on language in In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc), which stated
that “a new rule of constitutional law is not available to individuals seeking to file second
or successive motions for postconviction relief until the Supreme Court declares the
applicability of that particular rule to collateral proceedings,” id. at 1196. According to
Phillips, it follows from Vial that because it was unclear whether Miller would apply
retroactively to cases on collateral review when he filed his first federal habeas
application in June 2013, a Miller claim was not then “available” to him, and therefore he
was legally incapable of “presenting” such a claim at that time. He contends that, by
including a Miller claim in his 2013 application, he was merely “putting down a marker”
within one year of the date Miller was decided to ensure that, should the Supreme Court
later make Miller retroactive (as it has now done), his later filed Miller claim would be
timely under § 2244(d)(1)(C) and thereby could be resurrected in a second or successive
11
habeas application — even though his first habeas application was dismissed with
prejudice. “Otherwise,” he argues, “applicants like [him] would confront Scylla and
Charybdis” when filing a habeas application based on the Supreme Court’s recognition of
a new rule of constitutional law, suggesting that he was unacceptably given lose-lose
alternatives. *
There are several problems with Phillips’s argument. First, the language of our
opinion in Vial, on which he relies, was addressing the limited issue — later conclusively
settled by the Supreme Court in Tyler v. Cain, 533 U.S. 656 (2001) — of how to
determine when a new rule of constitutional law has been “made retroactive to cases on
collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2) (emphasis added); see
also id. § 2244(b)(2)(A) (same). At issue, specifically, was whether the Supreme Court
must “declare[] the collateral availability of the rule in question” or whether “Supreme
Court precedent [can] establish[] that the new rule is of the type available to those
proceeding on collateral review.” Vial, 115 F.3d at 1196–97. We concluded that “the
plain language” of the statute established that, “in order to be available to an individual
pursuing a second or successive § 2255 motion, a new rule of constitutional law must
itself be declared applicable to cases on collateral review by the Supreme Court.” Id. at
*
As described in Homer’s Odyssey, Book XII, Odysseus, on returning from Troy
by ship, was confronted with a narrow strait, which was impossible to navigate without
harm. On one side Scylla, a six-headed sea monster, would snatch six sailors from the
ship, one for each head, and on the other side, Charybdis, a whirlpool, would suck the
ship into its water funnel and destroy it. There was no safe lane between the two.
Odysseus engaged Scylla and thus lost six sailors.
12
1196. Thus, our opinion in Vial did not purport to answer any question as to when a
claim based on a new rule of constitutional law is “presented” in a habeas application
within the meaning of § 2244(b)(1). And any statement in Vial suggesting that a claim
based on a new rule of constitutional law does not become legally available until the new
rule has been made retroactive to cases on collateral review was dictum at best. More
importantly, even such dictum has been undermined by the Supreme Court’s subsequent
decision in Dodd v. United States, 545 U.S. 353 (2005).
In Dodd, the Court addressed the question of when the 1-year limitation period
that applies to a prisoner’s federal postconviction proceeding begins to run, particularly
when the prisoner’s claim is based on the Supreme Court’s new recognition of a federal
right. Specifically, with respect to a federal prisoner’s collateral challenge to the final
judgment in his criminal case, 28 U.S.C. § 2255(f) provides that “[t]he limitation period
shall run from the latest of” several events, including “the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on collateral
review.” 28 U.S.C. § 2255(f)(3); cf. id. § 2244(d)(1)(C) (using nearly identical language
to provide that the 1-year limitation period that applies to a state prisoner’s habeas
application begins to “run from the latest of” various possible dates, one of which is “the
date on which the constitutional 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”).
13
The Dodd Court rejected the federal prisoner’s argument that, under § 2255(f)(3),
“the limitation period runs from the date on which the right asserted was made
retroactively applicable.” 546 U.S. at 357 (emphasis added). Instead, it held that the
statute’s text “unequivocally identifies one, and only one, date from which the 1-year
limitation period is measured: ‘the date on which the right asserted was initially
recognized by the Supreme Court.’” Id. (quoting § 2255(f)(3)). Thus, giving the statue’s
text its “only natural reading,” the Court concluded that when it “decides a case
recognizing a new right, a federal prisoner seeking to assert that right will have one year
from [its] decision within which to file his § 2255 motion,” although he “may take
advantage of [that] date . . . only if” “the right ‘has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review.’” Id. at
358–59 (quoting § 2255(f)(3)).
Critically, the Dodd Court expressly recognized and rejected the Scylla-and-
Charybdis problem identified by Phillips, acknowledging that by giving the statutory text
its plain meaning, there was a “potential for harsh results in some cases,” particularly
with respect to federal prisoners who have previously filed a § 2255 motion. 545 U.S. at
359. Indeed, the Court explicitly noted that, “because of the interplay between”
§ 2255(f)(3) and (h)(2), “an applicant who files a second or successive motion seeking to
take advantage of a new rule of constitutional law will be time barred except in the rare
case in which this Court announces a new rule of constitutional law and makes it
retroactive within one year.” Id. (emphasis added). But this “potential for harsh results,”
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the Court concluded, did not give it license “to rewrite the statute that Congress has
enacted.” Id.
We conclude that Dodd’s reasoning is controlling here. Distilled to its essence,
Phillips’s argument is that, based on the operation of the statute of limitations in
§ 2244(d)(1)(C), we should ignore the plain text of § 2244(b)(1) and hold that although
he raised a claim based on Miller in his 2013 habeas application, the claim was
nonetheless not “presented” then because Miller’s new rule had not yet been made
retroactively applicable to cases on collateral review. But, as Dodd so clearly instructs,
“we are not free to rewrite the statute that Congress has enacted” to avoid what would
admittedly be “harsh results in some cases.” 545 U.S. at 359. Phillips fully presented his
Miller claim in 2013 and now proposes to file a second or successive application to
present the same claim. Subsections 2244(b)(1) and 2244(b)(3)(C) forbid this.
Because Phillips has failed to make the necessary prima facie showing that his
successive habeas application would present a claim that was not “presented” in his first,
his motion for leave to file a successive application must be denied. We therefore need
not address the separate issues of whether he made a prima facie showing that his
proposed claim “relies on a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C.
§ 2244(b)(2)(A), or whether his motion should otherwise be denied because his
successive application would be untimely under § 2244(d), see Vassell, 751 F.3d at 268–
72.
MOTION DENIED
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