Bowling v. Director, Virginia Dept. of Corrections , 920 F.3d 192 ( 2019 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-6170
THOMAS FRANKLIN BOWLING,
Petitioner - Appellant,
v.
DIRECTOR, Virginia Department of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Jackson L. Kiser, Senior District Judge. (7:17-cv-00142-JLK-RSB)
Argued: January 29, 2019 Decided: April 2, 2019
Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge
Richardson and Judge Traxler joined.
ARGUED: Claire Cahill, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Brittany Marie Jones, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Erica
Hashimoto, Director, Aaron M. Steeg, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.
Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General,
Laura Haeberle Cahill, Assistant Attorney General, Toby J. Heytens, Solicitor General,
Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
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THACKER, Circuit Judge:
This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated
denial of parole to Thomas Franklin Bowling (“Appellant”). Appellant was sentenced to
life with parole when he was 17 years old. He first became eligible for parole on April
26, 2005. The Parole Board has considered his eligibility and denied him parole annually
ever since. Appellant alleges that, because the Parole Board was not specifically required
to consider age-related characteristics unique to juvenile offenders when it has processed
his parole applications, the Parole Board’s repeated denial of his applications violated his
Eighth and Fourteenth Amendment rights.
On that ground, Appellant initiated this action against the Director of the Virginia
Department of Corrections (“Appellee”). Appellee moved to dismiss Appellant’s
complaint, and the district court granted Appellee’s motion to dismiss. Regarding
Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth
Amendment protections do not apply to Appellant because he was sentenced to life with
parole. Regarding Appellant’s Fourteenth Amendment claims, the district court held that
the Parole Board procedures satisfy procedural due process requirements. For the
reasons stated below, we affirm the decision of the district court.
I.
In 1988, Appellant was convicted of capital murder, robbery, marijuana
possession, and two counts of use of a firearm in connection with his role in a botched
robbery that resulted in a homicide. He was sentenced to two life sentences, plus six
years and thirty days, with the possibility of parole. He was 17 years old at the time.
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In 2005, Appellant became eligible for parole. Every year since 2005, the Parole
Board has considered Appellant’s eligibility for parole. Each of those years, the Parole
Board “review[ed] and evaluat[ed] . . . all available information pertaining to
[Appellant’s] case” and decided “not to grant [Appellant] parole.” J.A. 83–103. 1 Over
the years, the Parole Board noted its reasons for denying Appellant parole as follows:
• 2005–2007: “Serious nature and circumstances of the
crime.” J.A. 37–39.
• 2008–2009: “Serious nature and circumstances of the
crime,” and “Prior offense history indicates disregard for
the law.” J.A. 40–41.
• 2010: “Crimes committed,” and “Serious nature and
circumstances of the offense.” J.A. 42.
• 2011: “Serious nature and circumstances of the offense,”
“Crimes committed,” and “Release at this time would
diminish seriousness of crime.” J.A. 43.
• 2012: “History of violence -- indicates serious risk to the
community,” “Release at this time would diminish
seriousness of crime,” “Serious nature and circumstances
of offense,” and “Crimes committed.” J.A. 44–45.
• May 2013: “Release at this time would diminish
seriousness of the crime,” “History of violence --
indicates serious risk to the community,” “Poor
institutional adjustment and/or record of institutional
infractions indicate that offender is not ready to conform
to society,” “Extensive criminal record,” and “Serious
nature and circumstances of offense.” J.A. 47.
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.
4
• July 2013: “Serious nature and circumstances of your
offense(s),” and “The Board concludes that you should
serve more of your sentence prior to release.” J.A. 48.
• 2014: “Release at this time would diminish seriousness of
the crime,” “Serious nature and circumstances of your
offense(s),” and “The Board concludes that you should
serve more of your sentence prior to release on parole.”
J.A. 50.
• 2015: “Release at this time would diminish seriousness of
crime,” “Serious nature and circumstances of your
offense(s),” and “Crime committed.” J.A. 52.
• 2016: “Release at this time would diminish seriousness of
crime,” “Crimes committed,” “Serious nature and
circumstance of your offense(s),” and “The Board
concludes that you should serve more of your sentence
prior to release on parole.” J.A. 55.
Beginning in 2010, the Parole Board also noted that, in evaluating Appellant’s
eligibility for parole, it considered factors in addition to those it listed in its statement of
reasons. Among other things, the Parole Board considered “whether [Appellant’s]
release would be compatible with public safety and the mutual interests of society and
[Appellant]”; “whether [Appellant’s] character, conduct, vocational training and other
developmental activities during incarceration reflect the probability that [he] will lead a
law-abiding life in the community and live up to all the conditions of parole”;
“[Appellant’s] personal history”; “[Appellant’s] institutional adjustment”; “[Appellant’s]
change in attitude toward [himself] and others”; “[Appellant’s] release plans”;
“[Appellant’s] evaluations”; “impressions gained . . . by the parole examiner”; and “any
other information provided by [Appellant’s] attorney, family, victims or other persons.”
J.A. 88–103.
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On November 16, 2016, pursuant to Va. Code Ann. § 8.01-654, Appellant filed a
petition for a writ of habeas corpus in the Supreme Court of Virginia. He alleged that the
Parole Board violated his Eighth and Fourteenth Amendment rights. On March 10, 2017,
the Supreme Court of Virginia denied his claim. The court reasoned that a petition for a
writ of habeas corpus is not the proper vehicle for challenging denials of discretionary
parole.
On April 4, 2017, pursuant to 28 U.S.C. § 2254, Appellant filed a petition for a
writ of habeas corpus in the Western District of Virginia. Three months later, the
Commonwealth of Virginia (“the Commonwealth”) moved to dismiss the petition,
arguing that Appellant’s claims were not cognizable as a habeas petition and, in any
event, the Parole Board properly denied his requests for parole. On January 23, 2018, the
district court granted the Commonwealth’s motion. The district court first concluded
that, because Appellant is serving a life sentence with the opportunity for parole, his
sentence does not violate the Eighth Amendment. The district court then concluded that,
because the Commonwealth’s parole process satisfies the requirements of Franklin v.
Shields, 569 F.2d 784, 790 (4th Cir. 1977) (defining the minimum due process
requirements that parole proceedings must satisfy), Appellant failed to demonstrate that
his parole proceedings violated the Fourteenth Amendment’s Due Process Clause.
On August 23, 2018, this court issued Appellant a certificate of appealability on
both Appellant’s Eighth and Fourteenth Amendment claims.
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II.
We review a district court’s dismissal for failure to state a claim de novo. See
Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 776 (4th Cir. 2013). In doing so, we
assume the truth of the plaintiff’s well-pled facts. See Trulock v. Freeh, 275 F.3d 391,
399 (4th Cir. 2001). We also draw all reasonable inferences in favor of the plaintiff. See
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).
III.
A.
As a threshold matter, the Commonwealth asserts that Appellant’s claims are not
cognizable under 28 U.S.C. § 2254. The Commonwealth argues that Appellant’s habeas
petition is an inappropriate vehicle for Appellant’s claims because Appellant is not
seeking immediate release from custody. In response, Appellant invites the court to read
his complaint as asserting a claim under 42 U.S.C. § 1983. The Supreme Court has held
that prisoners may challenge the constitutionality of state parole procedures pursuant to
§ 1983. See Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). Moreover, we read pro se
pleadings liberally. See Carter v. Fleming, 879 F.3d 132, 137 (4th Cir. 2018). In line
with that principle, this court has previously read § 2254 petitions as § 1983 complaints.
See, e.g., Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978). We accept Appellant’s
invitation and choose to do so here. 2
2
The State argued in its brief that we should not read the § 2254 petition as a
§ 1983 claim because a § 1983 claim would be dismissed immediately for failure to
exhaust. The State claimed that Appellant had not filed a complaint under the Prison
(Continued)
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B.
1.
Appellant’s Eighth Amendment Claim
The Eighth Amendment to the United States Constitution provides, “Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. Const. amend VIII. Over the past decade, the Supreme
Court has found that the application of certain punitive measures to juvenile offenders
violates that clause. In Roper v. Simmons, the Supreme Court held that the Eighth
Amendment prohibits capital punishment for juveniles. See 543 U.S. 551 (2005). In
Graham v. Florida, the Court found that the Eighth Amendment prohibits sentencing
juveniles who commit non-homicide offenses to life without parole. See 560 U.S. 48(2010). Most recently, in Miller v. Alabama, the Supreme Court held that the mandatory
imposition of life without parole sentences on juvenile offenders is cruel and unusual.
See 567 U.S. 460 (2012). Although the punishment at issue in each of these cases has
varied by degrees of severity and permanence, the “foundation stone” has not wavered:
“children are constitutionally different from adults for the purposes of sentencing.” Id. at
470 n.4, 471; see also Montgomery v. Alabama, 136 S. Ct. 718, 732 (2016). For that
Litigation Reform Act of 1995 (“PLRA”). But after the parties filed their briefs,
Appellant moved to supplement the record with an administrative appeal from a parole
decision, which demonstrated that Appellant did in fact file a complaint in line with the
PLRA. See Mot. To Supp., Bowling v. Dir. Va. Dep’t Corr., No. 18-6170 (4th Cir. filed
Dec. 10, 2018), ECF No. 33.
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reason, certain punishments are cruel and unusual when applied to juveniles without
consideration of age-related mitigating characteristics of juveniles. See Montgomery, 136
S. Ct. at 732.
Appellant asks this court to extend the Supreme Court’s Eighth Amendment
jurisprudence to juvenile parole proceedings and find that it is cruel and unusual
punishment for a parole board to deny juvenile offenders parole without specifically
considering age-related mitigating characteristics as a separate factor in the decision-
making process. Granting that request would require us to extend the legacy of Roper,
Graham, and Miller in two ways. First, we would have to find that juvenile-specific
Eighth Amendment protections extend to juvenile homicide offenders sentenced to life
with parole. And second, we would have to find that those protections extend beyond
sentencing proceedings. We decline to go so far.
Significantly, the Supreme Court has placed no explicit constraints on a sentencing
court’s ability to sentence a juvenile offender to life with parole. The Court has not yet
gone so far as to require that juvenile offenders be released from prison during their
lifetime. See Graham, 560 U.S. at 75. (“A State is not required to guarantee eventual
freedom to a juvenile offender . . . .”). That is to say, the Court “[did] not foreclose” the
possibility that “the rare juvenile offender whose crime reflects irreparable corruption”
could be sentenced to life without parole. Miller, 567 U.S. at 479–80. Rather, the
Supreme Court required that, before sentencing a juvenile to life without parole,
sentencing courts “take into account how children are different.” Id. at 480.
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Indeed, our sister circuits, deciding cases in the wake of Miller, have not yet
agreed on whether, before sentencing a juvenile to a de facto life without parole sentence,
sentencing courts must “take into account how children are different.” Id. Some circuit
courts have applied juvenile-specific Eighth Amendment protections to sentences that
amount to the practical equivalent of life without parole. See, e.g., United States v.
Grant, 887 F.3d 131, 144 (3d Cir. 2018) (vacating a sentence under which a juvenile
would become parole eligible at 72 years old, the same age as his life expectancy), reh’g
en banc granted, opinion vacated, 905 F.3d 285 (3d Cir. 2018); McKinley v. Butler, 809
F.3d 908, 913–14 (7th Cir. 2016) (vacating a 100-year sentence imposed on a non-
incorrigible juvenile offender); Moore v. Biter, 725 F.3d 1184, 1191–92 (9th Cir. 2013)
(finding aggregate sentence of 254 years for a juvenile non-homicide offender is
“materially indistinguishable” from the life sentence without parole and thus entitled to
protection under Graham). But other circuits have held that juvenile-specific Eighth
Amendment protections do not extend to such sentences. See, e.g., United States v.
Jefferson, 816 F.3d 1016, 1019 (8th Cir. 2016) (finding a 600-month sentence “does not
fall within Miller’s categorical ban on mandatory life-without-parole sentences”
(emphasis in original)); Bunch v. Smith, 685 F.3d 546, 550 (6th Cir. 2012) (“The Court in
Miller did not hold that the Eighth Amendment categorically prohibits imposing a
sentence of life without parole on a juvenile offender.”) And even where circuit courts
have found that the constraints of Graham and Miller apply to de facto life without parole
sentences, those courts have only gone as far as to require parole boards to consider a
juvenile’s eligibility for parole within the juvenile’s lifetime. See, e.g., Grant, 887 F.3d
10at 147 (“[W]e agree with the Government that the Supreme Court has not gone as far as
to say that juvenile offenders must be afforded a right to a ‘meaningful life’ after prison --
in fact, neither Miller nor Graham even guarantees that a juvenile offender will ever be
released from prison during his or her lifetime.”). Given this disagreement about the
application of the protections announced in Miller and its lineage to sentences that are
practically equivalent to life without parole, we are satisfied that those protections have
not yet reached a juvenile offender who has and will continue to receive parole
consideration.
Further, to the extent that Graham and Miller require parole proceedings to
provide juveniles a meaningful opportunity for release after sentencing, we are not
persuaded that Appellant’s parole proceedings fell below that standard. Here, the Parole
Board has considered Appellant’s eligibility for parole annually since 2005. In doing so,
the Parole Board has considered “whether [Appellant’s] release would be compatible
with public safety and the mutual interests of society and [Appellant],” “whether
[Appellant’s] character, conduct, vocational training and other developmental activities
during incarceration reflect the probability that [he] will lead a law-abiding life in the
community and live up to all the conditions of parole,” “[Appellant’s] personal history,”
“[Appellant’s] institutional adjustment,” “[Appellant’s] change in attitude toward
[himself] and others,” “[Appellant’s] release plans,” “[Appellant’s] evaluations,”
“impressions gained . . . by the parole examiner,” and “any other information provided by
[Appellant’s] attorney, family, victims or other persons.” J.A. 88–103. The existing
factors, therefore, allowed the Parole Board to fully consider the inmate’s age at the time
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of the offense, as well as any evidence submitted to demonstrate his maturation since
then, and account for the concern at the heart of Graham and Miller: “that children who
commit even heinous crimes are capable of change.” Montgomery, 136 S. Ct. at 736.
Although the bases of the Parole Board’s denials have, so far, been linked to the severity
of his crime, the record suggests that “there is a possibility that in time, [Appellant’s]
conduct and positive adjustment while in prison, when considered with all other factors,
will outweigh the concerns that the Board has for the offense.” J.A. 76.
Finally, the Supreme Court’s reflection on the relief provided by Miller and its
lineage persuades us that the Eighth Amendment promises juvenile offenders no further
protections than those that Appellant has already received. In Montgomery, the Supreme
Court suggested that, to remedy Miller violations retroactively, states need not resentence
every juvenile offender entitled to Miller relief. See Montgomery, 136 S. Ct. at 736.
Rather, states may remedy Miller violations by providing juvenile offenders the same
protection that Appellant has already received: parole consideration. See id.
2.
Appellant’s Procedural Due Process Claims
The Due Process Clause provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. That
provision applies even to prisoners in state institutions. See Wolff v. McDonnell, 418
U.S. 539, 556–57 (1974) (“There is no iron curtain drawn between the Constitution and
the prisons of this country.”). But because “there must be a mutual accommodation
between institutional needs and objectives and the provisions of the Constitution,” id. at
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556, a prisoner must identify a cognizable liberty interest before he can demonstrate a
denial of due process. Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (“We need reach
the question of what process is due only if the inmates establish a constitutionally
protected liberty interest . . . .”). A prisoner can identify a cognizable liberty interest in
one of two ways. The prisoner might have a liberty interest arising from the Constitution
itself. See, e.g., Vitek v. Jones, 445 U.S. 480, 493–94 (1980) (finding the Constitution
gives rise to a liberty interest in avoiding involuntary psychiatric treatment). Or the
prisoner might have a state-created liberty interest. See, e.g., Wolff, 418 U.S. at 556–58
(finding a state-created system of time-served credit for good behavior gives rise to a
liberty interest in avoiding withdrawal from that system).
Appellant asserts that he has a liberty interest arising from the Constitution and a
state-created liberty interest. First, Appellant claims that, as a juvenile offender, he is
“constitutionally entitled to the opportunity to reenter society as a mature adult.”
Appellant’s Br. 33. Second, Appellant claims that “Virginia’s parole scheme creates a
statutory liberty interest in parole.” Id. at 36. We disagree on both accounts.
There exists “no constitutional or inherent right” to parole proceedings.
Greenholtz v. Neb. Penal Inmates, 442 U.S. 1, 7 (1979); see also Gaston v. Taylor, 946
F.2d 340, 344 (4th Cir. 1991). Yet, Appellant would have this court find that the
constitutional right announced by Miller and its lineage gives rise to a constitutionally
protected liberty interest in juvenile-specific Eighth Amendment protections. However,
because we find that juvenile-specific Eighth Amendment protections do not apply to
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Appellant’s life with parole sentence, we need not decide whether the rights articulated
by Miller and its lineage trigger liberty interests.
Even where no liberty interest in parole arises from the Constitution, “[i]f a
prisoner’s term of imprisonment can be shortened or modified by rights conveyed to him
under state law, those rights cannot be denied without due process.” Gaston, 946 F.2d at
343. To establish a state-created liberty interest, Appellant must point to statutes or
regulations that give rise to an expectation of that interest. In determining whether a state
has created a liberty interest, the “threshold question” is whether such an interest “arise[s]
from state policies or regulations.” Wilkinson, 545 U.S. at 221–22; see also Prieto v.
Clarke, 780 F.3d 245, 249 (4th Cir. 2015). For instance, in Wolff, the Supreme Court
recognized that the state of Nebraska, through its prison regulations that systematically
reduced minimum prison sentences as a result of good prisoner behavior, created a liberty
interest in that reduction. See 418 U.S. at 556–58.
Because Virginia law gives rise to an expectation of parole proceedings, the
Commonwealth has created a liberty interest in parole consideration. 3 Nevertheless, to
satisfy the due process requirements triggered by this liberty interest, a parole board need
only provide an offender an opportunity to be heard and a “statement of reasons
3
Appellant points to no Virginia law or regulation that gives him a legitimate
expectation of release on parole. Under Virginia law, eligibility for parole is a
discretionary decision. See Va. Code Ann. § 53.1. And where parole eligibility hinges
on the “discretionary decisions of parole authorities,” parole applicants “possess no
entitlement, but only a desire, that a parole board will decide in their favor.” Vann v.
Angelone, 73 F.3d 519, 522 (4th Cir. 1996).
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indicating . . . why parole has been denied.” Bloodgood v. Garraghty, 783 F.2d 470, 473
(4th Cir. 1986). Appellant’s parole proceedings satisfied those requirements. The Parole
Board provided Appellant with annual opportunities to be heard. It also annually
provided Appellant with a list of reasons why he was found ineligible for parole.
Accordingly, Appellant’s Fourteenth Amendment claim was properly dismissed.
IV.
For these reasons, the judgment of the district court is
AFFIRMED.
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