Dennis LeBlanc v. Randall Mathena

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7151
DENNIS LEBLANC,
Petitioner - Appellee,
v.
RANDALL MATHENA, Chief Warden, Red Onion State Prison,
Pound, Virginia; COMMONWEALTH OF VIRGINIA,
Respondents - Appellants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Arenda L. Wright Allen,
District Judge. (2:12-cv-00340-AWA-LRL)
Argued: May 10, 2016 Decided: November 7, 2016
Amended: November 10, 2016
Before NIEMEYER and WYNN, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District
of West Virginia, sitting by designation.
Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Johnston joined. Judge Niemeyer wrote a dissenting
opinion.
ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants. Bryan A.
Stevenson, EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for
Appellee. ON BRIEF: Mark R. Herring, Attorney General of
Virginia, Linda L. Bryant, Deputy Attorney General, Criminal
Justice & Public Safety Division, Donald E. Jeffrey, III, Senior
Assistant Attorney General, Eugene P. Murphy, Senior Assistant
Attorney General, Katherine Quinlan Adelfio, Assistant Attorney
General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellants. Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk,
Virginia; Randall S. Susskind, Jennae R. Swiergula, Stephen Chu,
EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for Appellee.
2
WYNN, Circuit Judge:
Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the
Eighth Amendment forbids the sentence of life without parole”
for juvenile offenders convicted of nonhomicide offenses.
Accordingly, the Supreme Court held that States must provide
juvenile nonhomicide offenders sentenced to life imprisonment
with “some meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.” Id. at 75.
Nearly a decade before the Supreme Court decided Graham,
Respondent, the Commonwealth of Virginia, sentenced Petitioner
Dennis LeBlanc to life imprisonment without parole for a
nonhomicide offense he committed at the age of sixteen. In
light of Graham, Petitioner sought postconviction relief from
his sentence in Virginia state courts. The state courts denied
Petitioner relief, holding that Virginia’s geriatric release
program--which was adopted more than fifteen years before the
Supreme Court decided Graham and will allow Petitioner to seek
release beginning at the age of sixty--provides the “meaningful
opportunity” for release that Graham requires.
Mindful of the deference we must accord to state court
decisions denying state prisoners postconviction relief, we
nonetheless conclude that Petitioner’s state court adjudication
constituted an unreasonable application of Graham. Most
significantly, Virginia courts unreasonably ignored the plain
3
language of the procedures governing review of petitions for
geriatric release, which authorize the State Parole Board to
deny geriatric release for any reason, without considering a
juvenile offender’s maturity and rehabilitation. In light of
the lack of governing standards, it was objectively unreasonable
for the state courts to conclude that geriatric release affords
Petitioner with the “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation” Graham
demands. Id. Accordingly, Petitioner is entitled to relief from
his unconstitutional sentence.
I.
On July 15, 2002, a Virginia state trial court found
Petitioner guilty of rape and abduction. Petitioner committed
the offenses on July 6, 1999, when he was sixteen years old.
The court sentenced Petitioner to two terms of life
imprisonment. Petitioner was ineligible for parole pursuant to
Va. Code Ann. § 53.1-165.1, which abolished parole for
individuals convicted of a felony committed after January 1,
1995. Petitioner did not appeal his conviction or sentence.
In 2011, Petitioner filed a motion to vacate his sentence
in state trial court. The motion argued that Graham rendered
Petitioner’s life sentence invalid. In opposition, Respondents
asserted that, notwithstanding Virginia’s abolition of parole,
Petitioner’s life sentence did not violate Graham because
4
Virginia allows for conditional release of “geriatric
prisoners,” Va. Code Ann. § 53.1-40.01 (“Geriatric Release”).
At a hearing on August 9, 2011, the state trial court
orally denied Petitioner’s motion to vacate. In rendering its
decision, the trial court relied on the Supreme Court of
Virginia’s decision in Angel v. Commonwealth, 704 S.E.2d 386(Va. 2011), which held that Geriatric Release provides juveniles
sentenced to life in prison a “meaningful opportunity for
release” and therefore complies with Graham’s parole
requirement. J.A. 157. Petitioner appealed the trial court’s
decision to the Supreme Court of Virginia, which summarily
denied his petition for appeal.
On June 19, 2012, Petitioner filed a petition for habeas
corpus pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Eastern District of Virginia. A federal
magistrate judge reviewed the petition and recommended that the
district court deny it. LeBlanc v. Mathena, No. 2:12-cv-340,
2013 WL 10799406, at *1 (E.D. Va. July 24, 2013). Petitioner
filed objections to the magistrate judge’s report. Finding the
objections well-taken, the district court granted Petitioner’s
habeas petition, holding that his state court adjudication was
contrary to, and an unreasonable application of, Graham.
LeBlanc v. Mathena, No. 2:12cv340, 2015 WL 4042175, at *9 (E.D.
Va. July 1, 2015). In particular, the district court concluded
5
that Geriatric Release does not offer juvenile offenders
sentenced to life imprisonment, like Petitioner, the “meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation” required by Graham. Id. at *9, *11–18. The
district court further concluded that Geriatric Release did not
comply with Graham’s dictate that state penal systems reflect
the lesser culpability of juvenile offenders, explaining that
Geriatric Release “treats children worse” than adult offenders.
Id. at *14 (emphasis in original). Accordingly, the district
court remanded Petitioner’s case to the state court for
resentencing in accordance with Graham. Id. at *19.
Respondents filed a timely appeal, and the district court
stayed its judgment pending resolution of that appeal.
II.
A.
The Virginia General Assembly established Geriatric Release
in 1994--more than 15 years before the Supreme Court decided
Graham--as part of its “truth-in-sentencing” reform package.
J.A. 169. The primary goal of truth-in-sentencing reform was to
close the gap between prisoners’ original sentences and the
amount of time they actually served. Brian J. Ostrom et al.,
Truth-in-Sentencing in Virginia 17-20 (April 5, 2001), available
at https://www.ncjrs.gov/pdffiles1/nij/grants/187677.pdf. The
centerpiece of the reform package was the elimination of parole
6
for all offenders who committed felonies on or after January 1,
1995. Id.
The statutory provision governing Geriatric Release, as
amended, 1 provides, in its entirety:
Any person serving a sentence imposed upon a
conviction for a felony offense, other than a Class 1
felony, (i) who has reached the age of sixty-five or
older and who has served at least five years of the
sentence imposed or (ii) who has reached the age of
sixty or older and who has served at least ten years
of the sentence imposed may petition the Parole Board
for conditional release. The Parole Board shall
promulgate regulations to implement the provisions of
this section.
Va. Code Ann. § 53.1-40.01. Unlike with other components of the
truth-in-sentencing reform package, 2 we have identified no
evidence in the contemporaneous legislative record speaking to
the General Assembly’s goal in enacting Geriatric Release or
providing guidance regarding the implementation of Geriatric
Release.
1 The original provision applied only to offenders who were
ineligible for parole. A 2001 amendment expanded the provision
to apply to all inmates.
2 The legislative history of the truth-in-sentencing reform
package focuses on the abolition of parole, establishment of
uniform sentencing guidelines and a sentencing commission,
elimination of “good time” credits, and imposition of longer
sentences for violent offenders. Commonwealth of Va. Comm’n on
Sentencing & Parole Reform, Report of the Commission on
Sentencing & Parole Reform to the Governor and General Assembly
of Virginia, H. Doc. No. 18 (Dec. 23, 1994).
7
The Virginia Parole Board is responsible for deciding
whether to grant petitions for Geriatric Release. Section 53.1-
40.01 directs the Parole Board to promulgate regulations
necessary to implement the statute. Pursuant to that authority,
the Parole Board established administrative procedures governing
implementation of the Geriatric Release provision (the
“Geriatric Release Administrative Procedures”).
The Geriatric Release Administrative Procedures set forth a
two-stage review process for Geriatric Release petitions. At
the “Initial Review” stage, the Parole Board reviews a
prisoner’s petition--which must provide “compelling reasons for
conditional release”--and the prisoner’s “central file and any
other pertinent information.” J.A. 287. The Parole Board may
deny the petition at the Initial Review stage based on a
majority vote. Neither the statute nor the Geriatric Release
Administrative Procedures states what constitute “compelling
reasons for conditional release,” nor does either document
require the Parole Board to consider any particular factors in
conducting the Initial Review, nor does either document set
forth any criteria for granting or denying a prisoner’s petition
at the Initial Review stage.
If the Parole Board does not deny a petition at the Initial
Review stage, the petition moves forward to the “Assessment
Review” stage. As part of the Assessment Review, a Parole Board
8
member or designated staff member interviews the prisoner.
During that interview, the prisoner may present written and oral
statements as well as any written material bearing on his case
for parole. The interviewer then drafts a written assessment of
the prisoner’s “suitability for conditional release” and, based
on that assessment, recommends whether the Parole Board should
grant the petition. J.A. 288. In order to grant Geriatric
Release to a prisoner sentenced to life imprisonment, at least
four members of the five-member Parole Board must vote in favor
of release.
In engaging in the Assessment Review, Parole Board members
should consider “[a]ll factors in the parole consideration
process including Board appointments and Victim Input.” Id.The Virginia Parole Board Policy Manual includes a long list of
“decision factors” to be considered in the parole review
process. J.A. 297. These factors include: public safety, the
facts and circumstances of the offense, the length and type of
sentence, and the proposed release plan. The Parole Board also
should consider certain characteristics of the offender,
including “the individual’s history, physical and mental
condition and character, . . . conduct, employment, education,
vocational training, and other developmental activities during
incarceration,” prior criminal record, behavior while
incarcerated, and “changes in motivation and behavior.” J.A.
9
297–99. Finally, the Parole Board should consider impressions
gained from interviewing the prisoner as well as information
from family members, victims, and other individuals.
B.
There are several key ways in which Geriatric Release
differs from Virginia’s parole system, which remains in place
for prisoners who committed their offenses before January 1,
1995. The first--and most obvious--is the age limitation. In
order to seek Geriatric Release, an inmate must be at least
sixty years of age. By contrast, most parole-eligible inmates
serving a life sentence will be considered for parole for the
first time after serving fifteen years of their sentence. Va.
Code Ann. § 53.1-151(C). Other prisoners will be considered for
parole when they serve a certain percentage of their sentence.
Id. § 53.1-151(A). Accordingly, whereas Petitioner would have
been considered for parole after serving twenty years of his
sentence, Petitioner cannot apply for Geriatric Release until
roughly twenty years later.
The second difference is that an inmate must actively
petition for Geriatric Release once he or she becomes eligible,
whereas the Parole Board automatically considers, on an annual
basis, whether to release each parole-eligible inmate.
A third difference is that, unlike with parole, the Parole
Board may deny a petition for Geriatric Release at the Initial
10
Review stage without considering any of the “decision factors”
enumerated in the Parole Board Policy Manual. Indeed, unlike
the parole system, which has established criteria that the
Parole Board must consider in granting or denying parole,
Geriatric Release affords the Parole Board unconstrained
discretion to deny a petition for Geriatric Release at the
Initial Review stage. Relatedly, in their petition, prisoners
must “identify compelling reasons” why they should receive
Geriatric Release, notwithstanding that the “compelling reasons”
requirement has no statutory basis and that the Geriatric
Release Administrative Procedures do not provide any guidance
regarding what constitutes a “compelling reason.” J.A. 287. By
contrast, there is no requirement that a parole-eligible inmate
demonstrate “compelling reasons” in order to obtain parole.
Fourth, the Parole Board or its designee interviews
prisoners undergoing parole review as a matter of course. By
contrast, the Parole Board can deny a petition for Geriatric
Release at the Initial Review stage “on a review of the record,”
without interviewing the inmate. J.A. 287.
A final notable difference is that four members of the
five-member Parole Board must approve Geriatric Release of
inmates sentenced to life imprisonment. By contrast, only three
members of the Parole Board must approve parole of parole-
eligible prisoners.
11
III.
We review the district court’s decision to grant
Petitioner’s habeas petition de novo. Richardson v. Branker,
668 F.3d 128, 138 (4th Cir. 2012). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), which accords
deference to final judgments of state courts, circumscribes our
review. Nicolas v. Att’y Gen. of Md., 820 F.3d 124, 129 (4th
Cir. 2016). Under AEDPA, a federal court may grant habeas
relief to a state prisoner, like Petitioner, if the prisoner’s
state court adjudication “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or “was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding,” id. § 2254(d)(2).
Respondents contend that the Virginia courts’ conclusion
that Geriatric Release complies with Graham’s parole requirement
amounted to a finding of fact, and therefore that the standard
set forth in 28 U.S.C. § 2254(d)(2) applies. Federal courts
review habeas petitions raising questions of law or mixed
questions of law and fact under Section 2254(d)(1). Horn v.
Quarterman, 508 F.3d 306, 312 (5th Cir. 2007); see also, e.g.,
Barnes v. Joyner, 751 F.3d 229, 246-52 (4th Cir. 2014)
(analyzing habeas petition raising mixed question of law and
12
fact under Section 2254(d)(1)). By contrast, Section 2254(d)(2)
applies to questions of historical fact. Weaver v. Palmateer,
455 F.3d 958, 963 n.6 (9th Cir. 2006); Ouber v. Guarino, 293
F.3d 19, 27 (1st Cir. 2002) (“[T]he special prophylaxis of
section 2254(d)(2) applies only to determinations of basic,
primary, or historical facts.” (internal quotation omitted)).
Here, the Virginia courts’ evaluation of whether Geriatric
Release complies with Graham’s parole requirement implicates
questions of law, and therefore is subject to review under
Section 2254(d)(1). See, e.g., Moore v. Biter, 725 F.3d 1184,
1191 (9th Cir. 2013) (holding that a state court decision was
contrary to clearly established law when it held that Graham did
not bar a juvenile nonhomicide offender’s sentence under which
he would be eligible for parole in 127 years); Bunch v. Smith,
685 F.3d 546, 549-50 (6th Cir. 2012) (analyzing whether 89-year
sentence was functional equivalent of life sentence for purposes
of Graham under Section 2254(d)(1)). Therefore, we must
determine whether the state court’s decision was “contrary to,
or involved an unreasonable application of clearly established”
Supreme Court law. 28 U.S.C. § 2254(d)(1).
In assessing a state prisoner’s habeas claims, we review
the “last reasoned” state court decision. Ylst v. Nunnemaker,
501 U.S. 797, 803 (1991); Grueninger v. Dir., Va. Dep’t of
Corrs., 813 F.3d 517, 525 (4th Cir. 2016). “Unless a state-
13
court opinion adopts or incorporates the reasoning of a prior
opinion, AEDPA generally requires federal courts to review one
state decision.” Wooley v. Rednour, 702 F.3d 411, 421 (7th Cir.
2012) (internal quotation omitted). However, “[i]f the last
reasoned decision adopts or substantially incorporates the
reasoning from a previous state court decision, we may consider
both decisions to fully ascertain the reasoning of the last
decision.” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.
2007) (internal quotation omitted); Brian R. Means, Federal
Habeas Manual § 3:7 (2016) (“[W]here the last reasoned state
court decision adopts or substantially incorporates the
reasoning from a previous decision, it is acceptable for the
federal court to look at both state court decisions to fully
ascertain the reasoning of the last decision.”).
The Supreme Court of Virginia summarily affirmed the trial
court’s oral denial of Petitioner’s motion to vacate.
Accordingly, the trial court decision constitutes the last
reasoned decision for purposes of our analysis. Nicolas, 820
F.3d at 129. The trial court relied on Angel’s reasoning
regarding the Geriatric Release provision’s compliance with
Graham’s parole requirement. Accordingly, we must consider both
the trial court’s decision and Angel in determining whether
Petitioner’s state court adjudication was “contrary to, or an
14
unreasonable application of” Graham--the question to which we
now turn.
IV.
A.
The Eighth Amendment, made applicable to the States through
the Fourteenth Amendment, prohibits the infliction of “cruel and
unusual punishments.” U.S. Const. amend. VIII; Roper v.
Simmons, 543 U.S. 551, 560 (2005). “To determine whether a
punishment is cruel and unusual, courts must look beyond
historical conceptions to ‘the evolving standards of decency
that mark the progress of a maturing society.’” Graham, 560
U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).
The Eighth Amendment “prohibits not only barbaric punishments,
but also sentences that are disproportionate to the crime
committed.” Solem v. Helm, 463 U.S. 277, 284 (1983).
Graham rests on a long line of Supreme Court decisions
addressing the constraints imposed by the Eighth Amendment on
the punishment of juvenile offenders. In Thompson v. Oklahoma,
487 U.S. 815, 838 (1988), the Supreme Court held that the Eighth
Amendment prohibits the death penalty for offenders who
committed their crimes before the age of sixteen. The Court
grounded its decision on the principle “that punishment should
be directly related to the personal culpability of the criminal
defendant.” Id. at 834 (quoting California v. Brown, 479 U.S.
15538, 545 (1987)). “[A]dolescents as a class are less mature and
responsible than adults,” the Court explained. Id.“Inexperience, less education, and less intelligence make the
teenager less able to evaluate the consequences of his or her
conduct while at the same time he or she is much more apt to be
motivated by mere emotion or peer pressure than is an adult.”
Id. at 835. Accordingly, a juvenile’s transgression is “not as
morally reprehensible as that of an adult.” Id. Because
juvenile offenders are not as personally culpable as adult
offenders, juvenile offenders should not receive punishments as
severe as those inflicted on adult offenders, the Court held.
Id. at 834.
In Roper v. Simmons, the Supreme Court again emphasized the
unique characteristics of youth when it extended Thompson’s bar
on the death penalty to all individuals who committed their
offenses before the age of eighteen. 543 U.S. at 578. Like
Thompson, the Roper Court highlighted juveniles’ “lack of
maturity and underdeveloped sense of responsibility” and
propensity for “reckless behavior.” Id. at 569 (citations
omitted). Roper further noted that “the character of a juvenile
is not as well formed as that of an adult” and juveniles’
“personality traits are more transitory, less fixed.” Id. at
570. As a result, “it is less supportable to conclude that even
a heinous crime committed by a juvenile is evidence of
16
irretrievably depraved character.” Id. “Indeed, ‘[t]he
relevance of youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient; as
individuals mature, the impetuousness and recklessness that may
dominate in younger years can subside.’” Id. (quoting Johnson v.
Texas, 509 U.S. 350, 368 (1993)).
Against this backdrop, Graham held that “for a juvenile
offender who did not commit homicide the Eighth Amendment
forbids the sentence of life without parole.” 560 U.S. at 74.
The Court explained that “[t]his clear line is necessary to
prevent the possibility that life without parole sentences will
be imposed on juvenile nonhomicide offenders who are not
sufficiently culpable to merit that punishment.” Id. (emphasis
added). In reaching this conclusion, the Court again
highlighted the “lessened culpability” of juveniles, noting that
“developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds. For
example, parts of the brain involved in behavior control
continue to mature through late adolescence.” Id. at 68.
Moreover, “[j]uveniles are more capable of change than are
adults, and their actions are less likely to be evidence of an
‘irretrievably depraved character’ than are the actions of
adults.” Id. (quoting Roper, 543 U.S. at 570).
Graham explained that life without parole is “the second
17
most severe penalty permitted by law,” behind only the death
penalty, because it “deprives the convict of the most basic
liberties without giving hope of restoration, except perhaps by
executive clemency—-the remote possibility of which does not
mitigate the harshness of the sentence.” Id. at 69–70 (citations
omitted). If a juvenile is sentenced to life in prison without
the possibility of parole, he or she has “no chance for
fulfillment outside prison walls, no chance for reconciliation
with society, no hope.” Id. at 79.
Additionally, “[b]y denying the defendant the right to
reenter the community, the State makes an irrevocable judgment
about that person’s value and place in society. This judgment
is not appropriate in light of a juvenile nonhomicide offender’s
capacity for change and limited moral culpability.” Id. at 74.
Accordingly, the sentence of life without parole for a juvenile
nonhomicide offender will always be “disproportionate” under the
Eighth Amendment because it always relies on a judgment “made at
the outset” that the defendant is incorrigible. Id. at 73. And
while some juvenile offenders may ultimately prove to pose a
risk to society for the rest of their lives, “[a] life without
parole sentence improperly denies the juvenile offender a chance
to demonstrate growth and maturity” later in life. Id. at 73
(emphasis added).
Although Graham left it to “the State[s], in the first
18
instance, to explore the means and mechanisms” to comply with
its dictates, id. at 75, the decision established at least three
minimum requirements for parole or early release programs for
juvenile nonhomicide offenders sentenced to life imprisonment,
like Petitioner. 3
First, Graham held that such offenders must have the
opportunity “to obtain release based on demonstrated maturity
and rehabilitation.” Id. at 75 (emphasis added). Put
differently, the juvenile offender must have a “chance to later
demonstrate that he is fit to rejoin society” and that “the bad
acts he committed as a teenager are not representative of his
true character.” Id. at 79. To that end, a parole or early
release system does not comply with Graham if the system allows
for the lifetime incarceration of a juvenile nonhomicide
offender based solely on the heinousness or depravity of the
offender’s crime. Id. at 75 (“[The Eighth Amendment] prohibit[s]
States from making the judgment at the outset that [juvenile
nonhomicide offenders] never will be fit to reenter society.”);
id. at 76 (stating that the Eighth Amendment prohibits courts
3We address these three requirements because they are
particularly relevant to the Geriatric Release program and
Petitioner’s state court adjudication. We take no position on
whether Graham established--clearly or otherwise--other minimum
requirements for parole or early release programs for juvenile
nonhomicide offenders sentenced to life imprisonment.
19
“from sentencing a juvenile nonhomicide offender to life without
parole based on a subjective judgment that the defendant’s
crimes demonstrate an ‘irretrievably depraved character’”
(quoting Roper, 543 U.S. at 572)).
Second, Graham held that the opportunity to obtain release
must be “meaningful,” which means that the opportunity must be
“realistic” and more than a “remote possibility.” Id. at 70, 75,
82. Graham’s “meaningful[ness]” requirement reflects the
Supreme Court’s long-standing characterization of “[p]arole [a]s
a regular part of the rehabilitative process. Assuming good
behavior, it is the normal expectation in the vast majority of
cases.” Solem, 463 U.S. at 300-03. Because parole is the
“normal expectation,” it should be “possible to predict, at
least to some extent, when parole might be granted.” Id.(holding that, for purposes of the Eighth Amendment, executive
clemency is not a substitute for parole because clemency is an
“ad hoc” process that provides inmates with nothing more than a
“bare possibility” of release). To that end, Graham held that
the availability of executive clemency did not satisfy the
“meaningful opportunity to obtain release” requirement. 560 U.S.
at 69-70.
Third, Graham held that a state parole or early release
program must account for the lesser culpability of juvenile
offenders: “An offender’s age is relevant to the Eighth
20
Amendment, and criminal procedure laws that fail to take
defendants’ youthfulness into account at all would be flawed.”
Id. at 76; see also Miller v. Alabama, 132 S. Ct. 2455, 2465-66
(2012) (explaining that Graham’s “foundational principle” is
“that imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children”). 4
Accordingly, a state parole or early release system that
subjects juvenile offenders to more severe punishments than
their adult counterparts necessarily violates Graham.
B.
With these three principles in mind--(1) that juvenile
nonhomicide offenders sentenced to life imprisonment must have
the “opportunity to obtain release based on demonstrated
maturity and rehabilitation,” (2) that this opportunity must be
“meaningful,” and (3) that the early release or parole system
4The Supreme Court decided Miller after Petitioner’s state-
court adjudication. Although Petitioner may obtain relief only
based on law clearly established by the Supreme Court as of the
date of his adjudication, we may look to decisions post-dating
his adjudication for guidance regarding the interpretation and
application of clearly established Supreme Court precedent
predating the state court adjudication. See, e.g., Wiggins v.
Smith, 539 U.S. 510, 522-23 (2003) (relying on post-adjudication
opinion to “illustrat[e] . . . proper application” of clearly
established precedent); Frazer v. South Carolina, 430 F.3d 696,
716 (4th Cir. 2005) (Motz, J., concurring) (“Where . . . a
Supreme Court decision post-dating state collateral review . . .
simply illustrates the appropriate application of Supreme Court
precedent that pre-dates the state-court determination . . . , a
federal court on habeas may consider the postdated opinion.”).
21
must take into account the lesser culpability of juvenile
offenders--we must determine whether the conclusion of the trial
court and Angel that Geriatric Release complies with Graham’s
parole requirement was “contrary to, or an unreasonable
application of” Graham. 5
1.
A state court adjudication is contrary to clearly
established law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of
law” or “if the state court confronts facts that are materially
5
It is important to note that this case does not present
the question of whether a lengthy term-of-years sentence for a
juvenile is the functional equivalent of life without parole
under Graham. That question has thus far divided courts.
Compare Bunch, 685 F.3d at 550 (holding that Graham did not
clearly establish that an lengthy term-of-years sentence for a
juvenile offender would violate the Eighth Amendment), Vasquez
v. Commonwealth, 781 S.E.2d 920, 925 (Va. 2016) (holding that
Graham did not address term-of-years sentences, even if they
exceed the prisoner’s life expectancy), and State v. Brown, 118
So. 3d 332, 342 (La. 2013) (concluding that Graham did not reach
term-of-years sentences), with Moore, 725 F.3d at 1186 (holding
that Graham clearly prohibited a sentence under which a juvenile
offender who would not be eligible for parole until age 144),
Casiano v. Comm’r of Corr., 115 A.3d 1031, (Conn. 2015) (holding
that “a fifty year term and its grim prospects for any future
outside of prison effectively provide a juvenile offender with
‘no chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope’” (quoting Graham, 560 U.S.
at 79)), Bear Cloud v. State, 334 P.3d 132, 136, 141–42 (Wyo.
2014) (holding that a sentence that would keep the defendant in
prison until age sixty-one was the functional equivalent of a
life sentence), and State v. Null, 836 N.W.2d 41, 72 (Iowa 2013)
(holding that “Miller's principles are fully applicable to a
lengthy term-of-years sentence”).
22
indistinguishable from a relevant Supreme Court precedent and
arrives at [the opposite] result.” Williams v. Taylor, 529 U.S.
362, 405 (2000); Barbe v. McBride, 521 F.3d 443, 453-54 (4th
Cir. 2006).
Here, Angel, upon which the state trial court entirely
relied, correctly identified Graham as controlling and
recognized each of the three minimum requirements set forth
above for a parole or early release program for juvenile
nonhomicide offenders sentenced to life imprisonment. In
particular, Angel repeatedly stated that Graham requires that
juvenile offenders be afforded an opportunity for “release based
on maturity and rehabilitation.” 704 S.E.2d at 402. Likewise,
the Angel court acknowledged that the opportunity for release
must be “meaningful.” Id. 6 And Angel recognized that Graham
demands that state penal systems account for the “limited moral
culpability of juvenile offenders.” Id. at 401. Accordingly,
Petitioner’s state court adjudication was not “contrary to”
Graham. Bell v. Cone, 535 U.S. 685, 698 (2002) (holding that
6
Notwithstanding their contention that Graham “does not
address what type of parole is necessary to meet its standard,”
Respondents concede that Graham held that juvenile nonhomicide
offenders sentenced to life imprisonment must have the
opportunity to “obtain release based on maturity and
rehabilitation” and that this opportunity must be “meaningful.”
Appellants’ Br. at 37, 49. Accordingly, even Respondents
concede that Graham establishes minimum requirements for parole
or early release programs.
23
state court adjudication that “correctly identified the
principles announced [by the Supreme Court] as those governing
the analysis . . . was [not] contrary to . . . clearly
established law”).
2.
Petitioner, therefore, may obtain relief only if his state
court adjudication amounted to an “unreasonable application” of
Graham. A state court decision amounts to an “unreasonable
application” of clearly established Supreme Court precedent if
it “‘identifies the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies that
principle to the facts’ of the prisoner’s case.” Grueninger, 813
F.3d at 524 (quoting Wiggins, 539 U.S. at 520). To satisfy this
standard, the state court adjudication must be “more than
incorrect or erroneous;” it must be “objectively unreasonable.”
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). That being said, to
reach a decision that constitutes an “unreasonable application”
of Supreme Court precedent, a state court need not address an
identical factual or legal scenario to that previously addressed
by the Supreme Court: “even a general standard may be applied in
an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930,
953 (2007).
24
For several reasons, we agree with Petitioner that his
state court adjudication constituted an “unreasonable
application” of Graham.
First, Geriatric Release does not necessarily provide
Petitioner--or any other inmate, juvenile or otherwise--the
opportunity to obtain release “based on demonstrated maturity
and rehabilitation,” as Graham requires. In concluding that
Geriatric Release satisfied this requirement, Angel emphasized
that “if the prisoner meets the qualifications for consideration
contained in the statute, the factors used in the normal parole
consideration process apply to conditional release decisions
under this statute.” 704 S.E.2d at 402. Assuming arguendo the
“decision factors” used in the normal parole consideration
process adequately account for a juvenile offender’s “maturity
and rehabilitation,” 7 this conclusion ignores the Parole Board’s
authority to deny Geriatric Release for any reason--and without
consideration of the “decision factors”--and therefore is
objectively unreasonable.
7 The dissent incorrectly asserts that we conclude that the
parole “decision factors” do not account for a juvenile
offender’s “maturity and rehabilitation.” Post at 19. To the
contrary, because the Parole Board may deny a juvenile offender
Geriatric Release at the Initial Review stage without
considering the “decision factors,” we need not--and thus do
not--decide whether the “decision factors” adequately account
for a juvenile offender’s “maturity and rehabilitation,” as
Graham requires.
25
Under the Geriatric Release Administrative Procedures, the
Parole Board must consider the “decision factors”--the “factors
used in the normal parole consideration process”--during the
Assessment Review stage. But the Parole Board may deny a
petition for Geriatric Release for any reason--without
consideration of the “decision factors”--at the Initial Review
stage. It was objectively unreasonable to conclude that
Geriatric Release satisfied Graham’s requirement that juvenile
offenders be able to obtain release “based on maturity and
rehabilitation,” when, under the plain and unambiguous language
of the governing procedures, the Parole Board can deny every
juvenile offender Geriatric Release for any reason whatsoever. 8
Like Respondents, the dissent seeks to insulate Angel from
collateral review by claiming that “the Virginia Supreme Court’s
conclusion that Virginia law requires consideration of ‘normal
parole factors’ such as rehabilitation and maturity is one of
state law and thus is binding on this court.” Post at 19-20.
But, contrary to Respondents’ and the dissent’s
8
Because the Geriatric Release Administrative Procedures do
not require consideration of maturity and rehabilitation--or any
other factors--we need not, and thus do not, decide whether a
statute or regulation requiring only that a state decision-maker
consider “maturity and rehabilitation” satisfies Graham’s
requirement that juvenile offenders have the opportunity to
obtain release “based on demonstrated maturity and
rehabilitation.” 560 U.S. at 75 (emphasis added).
26
characterization, Angel does not hold that the Geriatric Release
Administrative Procedures “require” consideration of the
“decision factors.” Rather, Angel states that the “decision
factors” “apply to conditional release decisions,” but never
addresses whether--much less holds that--the Parole Board must
consider the “decision factors” in reviewing every petition for
Geriatric Release. 704 S.E.2d at 402 (emphasis added).
Indeed, by reading Angel as “requir[ing]” consideration of
the “decision factors,” the dissent puts Angel into direct
conflict with the plain language of the Geriatric Release
Administrative Procedures, which permit the Parole Board to deny
a petition for Geriatric Release at the Initial Review stage for
any reason, and without consideration of the “decision factors.”
See supra Part II. But in predicting how state courts would
resolve an unsettled issue of state law, we must reject, if at
all possible, predictions that would ascribe absurd or
irrational conclusions to state courts. See, e.g., Pena v.
Greffet, 110 F. Supp. 3d 1103, 1134 (D.N.M. 2015) (refusing to
predict that state court would resolve unsettled issue of state
law in a way that “would produce absurd results”); Union Cnty.
Ill. v. MERSCORP, Inc., 920 F. Supp. 2d 923, 931 (S.D. Ill.
2013) (adopting prediction of state law that was “[t]he only
non-absurd, non-inconvenient way to read the language of the law
itself and the language of Illinois appellate courts”); Jakomas
27
v. McFalls, 229 F. Supp. 2d 412, 424 (W.D. Pa. 2002) (rejecting
plaintiff’s contention that state court would interpret state
law in a way that would lead to an “absurd result”).
Accordingly, we refuse to read Angel’s description of the
Geriatric Release Administrative Procedues as “apply[ing]” the
“decision factors” as requiring that the Parole Board consider
those factors at the Initial Review stage, as the dissent
proposes.
Contrary to the dissent’s position, Angel’s error is not
that it irrationally interpreted the Geriatric Release
Administrative Procedures as requiring consideration of the
“decision factors.” Rather, Angel unreasonably concluded that
the potential for consideration of maturity and rehabilitation
at the Assessment Review stage is adequate to comply with
Graham’s requirement that States afford juvenile nonhomicide
offenders a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation,” 569 U.S. at 75, when
the Procedures allow the Parole Board to deny Geriatric Release
for any reason at the Initial Review stage and therefore provide
no guarantee that the Parole Board will consider a juvenile
offender’s maturation and rehabilitation--a question of federal
constitutional law. Indeed, under the Geriatric Release
Administrative Procedures, the Parole Board could allow
Petitioner to die in prison without ever having considered
28
whether Petitioner had matured or was rehabilitated. Graham
does not countenance such a possibility. 560 U.S. at 74, 79
(rejecting sentences of life without parole for juvenile
nonhomicide offender because such a penalty “guarantee[s] [the
offender] will die in prison without any meaningful opportunity
to obtain release” and “foreswears altogether the rehabilitative
ideal”).
Geriatric Release also fails to comply with Graham’s
requirement that juvenile offenders have the opportunity to
obtain release “based on demonstrated maturity and
rehabilitation” because it allows for the lifetime incarceration
of a juvenile nonhomicide offender based solely on the
heinousness or depravity of the offender’s crime. Data provided
by the Virginia Criminal Sentencing Commission shows that, to
date, 95.4 percent of the denials of Geriatric Release have been
based on the “serious nature of the crime.” J.A. 178. 9
9 The Sentencing Commission’s 95.4 percent figure reflects
adjudications of Geriatric Release petitions filed by adult
offenders only. There is no data available regarding
adjudications of Geriatric Release petitions by juvenile
offenders because no juvenile offender sentenced to life
imprisonment without parole in Virginia has reached the age of
sixty. Respondents maintain the absence of data on the
adjudication of Geriatric Release petitions by juvenile
offenders precludes reliance on this data. We agree with the
district court, however, that “[c]ompelling juveniles who are
currently serving sentences of life without the possibility of
parole to wait until enough similarly situated juveniles reach
age sixty so that courts can reassess the probabilities and
(Continued)
29
Accordingly, the Parole Board denies Geriatric Release petitions
in nearly every case on grounds that the petitioners’ “crimes
demonstrate an ‘irretrievably depraved character’”--directly
contrary to Graham’s instruction that state penal regimes take
into account a juvenile nonhomicide offender’s greater “capacity
for change” relative to his adult counterparts by giving such
offender the opportunity “to demonstrate that the bad acts he
committed as a teenager are not representative of his true
character.” 560 U.S. at 73, 79.
For this reason, the dissent misconstrues Graham when it
appeals to the conduct giving rise to Petitioner’s conviction
and Petitioner’s conduct at sentencing to justify its position.
Post at 5-6. Rather, Graham forbids States from making a
“judgment . . . at the outset” that a juvenile offender is
“incorrigible” because juvenile offenders have a “capacity for
change.” 560 U.S. at 73, 79.
A second reason Petitioner’s adjudication was objectively
unreasonable is that the Geriatric Release program does not
offer juvenile nonhomicide offenders the “meaningful”
opportunity for release traditionally afforded by parole.
statistics related to geriatric release perpetuates the
injustice that Graham sought to correct.” LeBlanc, 2015 WL
4042175, at *17.
30
Tellingly, when analyzing whether Geriatric Release complied
with Graham, the Angel court said that “the effect of [the
juvenile defendant’s life] sentences is that [he] will spend the
rest of his life confined in the penitentiary.” 704 S.E.2d at
401 (emphasis added). The Supreme Court of Virginia, therefore,
expected the defendant in Angel--who was 17 when he committed
his offenses and less than 4 years older when the Supreme Court
of Virginia decided his appeal--would spend his life jail,
notwithstanding the availability of Geriatric Release and that
the defendant had had only four years to “grow[] and matur[e].”
Graham, 560 U.S. at 73. But under clearly established Supreme
Court precedent--precedent repeatedly relied on by Graham, id.
at 70--“parole” should be the “normal expectation in the vast
majority of cases,” Solem, 463 U.S. at 300-03. It was
objectively unreasonable, therefore, for the Supreme Court of
Virginia to take the position that a penal regime under which it
concedes early release is the exception, rather than the
expectation, complies with Graham’s meaningfulness requirement.
Relatedly, Geriatric Release also fails to satisfy the
“meaningful” opportunity requirement because there are no
standards governing the denial of Geriatric Release petitions.
In the context of determining whether a life sentence without
parole complied with the Eighth Amendment, the Supreme Court
explained that “[t]he law generally specifies when a prisoner
31
will be eligible to be considered for parole, and details the
standards and procedures applicable at that time,” allowing
prisoners “to predict, at least to some extent, when parole
might be granted.” Id. at 300-01. By contrast, mechanisms that
allow a decision-maker to grant or deny early release “for any
reason without reference to any standards,” offer inmates
nothing more than a “bare possibility” of release and therefore
do not constitute “parole” for purposes of the Eighth
Amendment. 10 Id. at 301.
As explained above, the Geriatric Release statute does not
provide the Parole Board with any guidance regarding what
factors it must consider in deciding whether to release a
geriatric prisoner. See supra Part II.A. And, as Petitioner
correctly notes, the Geriatric Release Administrative Procedures
10 The dissent claims that Graham only “requir[es] that the
parole board have an ability to consider . . . evidence [of
maturity and rehabilitation] in deciding whether the offender
should be released.” Post at 22 (emphasis added). Graham’s
holding that executive clemency does not comply with the
“meaningful opportunity for release” requirement belies the
dissent’s assertion. In particular, notwithstanding that an
executive has unfettered discretion to grant clemency--and
therefore is “able” to consider an offender’s rehabilitation and
maturity in deciding whether to grant clemency--executive
clemency does not comply with Graham’s parole requirement
because it is an “ad hoc” process without any governing
standards. 560 U.S. at 69-70 (citing Solem, 463 U.S. at 300-01).
For purposes of Graham, the key issue is not whether the Parole
Board is “able” to consider a juvenile offender’s rehabilitation
and maturity--it is whether the Parole Board must consider
rehabilitation and maturation. See supra.
32
authorize the Parole Board to deny a petition for Geriatric
Release at the Initial Review stage for any reason. Without any
statutory or administrative guidance regarding what constitutes
a “compelling reason” warranting release or setting forth the
criteria for denying a juvenile offender’s petition for
Geriatric Release at the Initial Review stage, it is impossible
to predict whether and when--if at all--the Parole Board will
grant Geriatric Release. Accordingly, Geriatric Release does
not afford juvenile nonhomicide offenders the “meaningful”
opportunity to obtain release to which Graham entitles them. See
Graham, 560 U.S. at 69-70 (holding that executive clemency,
which the Supreme Court has recognized lacks governing
standards, did not constitute “meaningful opportunity to obtain
release” for juvenile offenders sentenced to life imprisonment).
Third, the state courts unreasonably concluded that the
Geriatric Release program complies with Graham’s dictate that
state punishment regimes account for the lesser culpability of
juvenile offenders. In particular, even if the Parole Board was
required to consider the “decision factors” in deciding whether
to grant a petition for Geriatric Release--which it is not--a
prisoner’s youth at the time of his offense is not among those
decision factors. Therefore, neither the Geriatric Release
statute nor the Geriatric Release Administrative Procedures
33
require that the Parole Board consider the “special mitigating
force of youth,” Thompson, 487 U.S. at 834, as Graham requires.
More significantly--and as the district court correctly
noted--Geriatric Release treats juvenile offenders sentenced to
life imprisonment “worse” than adult offenders receiving the
same sentence because juvenile offenders “must serve a larger
percentage of their sentence than adults do before eligibility
to apply for geriatric release.” LeBlanc, 2015 WL 4042175, at
*14. For example, under Geriatric Release, a fifty-year-old
sentenced to life in prison will be eligible to apply for
Geriatric Release in ten years, but a sixteen-year-old will have
to serve forty-four years before receiving his first opportunity
to apply for Geriatric Release. Graham emphasized that a life
sentence is “especially harsh” for a juvenile offender relative
to an adult offender because, under such a sentence, the
“juvenile offender will on average serve more years and a
greater percentage of his life in prison than an adult
offender.” 560 U.S. at 70. Given that (1) the Supreme Court
specifically held that sentencing systems that require juvenile
offenders to serve more years and/or a greater percentage of
their lives relative to adult offenders violate the Eighth
Amendment’s proportionality principle and that (2) Geriatric
Release subjects juvenile offenders to longer--and
proportionately longer--sentences, it was objectively
34
unreasonable to conclude that Geriatric Release complied with
Graham.
3.
The dissent does not dispute that the Geriatric Release
Administrative Procedures permit the Parole Board to deny a
petition for Geriatric Release for any reason at the Initial
Review stage, without consideration of the “decision factors,”
post at 21-22, contrary to Graham’s holding that juvenile
nonhomicide offenders sentenced to life imprisonment must have
an opportunity “to obtain release based on demonstrated maturity
and rehabilitation,” 560 U.S. at 75 (emphasis added). And the
dissent does not dispute that Geriatric Release subjects
juvenile offenders, on average, to longer—-and proportionately
longer—-sentences, post at 23, contrary to Graham’s dictate that
state penal regimes account for the lesser culpability of
juvenile offenders, 560 U.S. at 76. Nonetheless, the dissent
maintains that Petitioner is not entitled to relief because we
fail to afford his state court adjudication the level of
deference Section 2254(d)(1) requires, as the Supreme Court
interpreted that provision in Harrington v. Richter, 562 U.S. 86(2011). We disagree.
In Harrington, the petitioner claimed that his state court
adjudication amounted to an unreasonable application of the test
for ineffective assistance of counsel set forth in Strickland v.
35
Washington, 466 U.S. 668 (1984). Harrington, 562 U.S. at 105. In
rejecting the petition, the Supreme Court explained that “[t]he
standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ . . . and when the two apply in tandem, review is
‘doubly’ so . . . .” Id. at 105 (quoting Strickland, 466 U.S. at
689; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Notably, Harrington further explained that “evaluating
whether a rule application was unreasonable [for purposes of
Section 2254(d)(1)] requires considering the rule’s specificity.
The more general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.” Id. at 101
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The
Court held that the Strickland standard “is a general one, so
the range of reasonable applications is substantial.” Id. at 105
(citing Knowles, 556 U.S. at 123). This echoes the Court’s
earlier pronouncement in Yarborough, upon which the dissent also
relies: “If a legal rule is specific . . . [a]pplications of the
rule may be plainly correct or incorrect. Other rules are more
general, and their meaning must emerge in application over the
course of time. Applying a general standard to a specific case
can demand a substantial element of judgment.” 541 U.S. at 664;
see post at 13. Thus, determining whether a state court’s
decision was “unreasonable” for purposes of Section 2254(d)(1)
36
depends on the specificity of the constitutional rule the state
court applied.
A court applying Strickland must determine two things: that
the defendant’s counsel’s representation “fell below an
objective standard of reasonableness,” and that the deficient
performance was “prejudicial to the defense.” 466 U.S. at 687–
91. By contrast, Graham set forth a categorical rule barring
sentences of life without parole for juvenile nonhomicide
offenders. 560 U.S. at 77–79. And Graham clearly established
that parole or early release programs for such offenders must
(1) provide an opportunity to obtain release “based on
demonstrated maturity and rehabilitation” and (2) account for
the lesser culpability of juvenile offenders. See supra Part
III.A. The Court characterized these minimum requirements as
establishing a “boundar[y]” on state courts’ authority to make
“case-by-case” sentencing determinations. 560 U.S. at 77.
Accordingly, Graham’s categorical rule and its minimum
requirements for parole or early release programs do not afford
state courts the same “leeway” that the “reasonableness” and
“prejudice” components of Strickland permit. Indeed, the
dissent misconstrues Harrington when it affords the same
“doubly” deferential review to Petitioner’s state court
adjudication as federal courts apply in reviewing state court
decisions applying Strickland.
37
Contrary to the dissent, we do not engage in de novo
review. Rather, we hold that the Supreme Court of Virginia
unreasonably applied Graham when it acknowledged Graham’s
minimum requirements for parole or early release programs for
juvenile nonhomicide offenders sentenced to life imprisonment
but concluded that Geriatric Release—-which permits the Parole
Board to deny petitions for Geriatric Release without ever
considering a petitioner’s maturity or rehabilitation and which
treats juvenile offenders worse than adult offenders--complied
with those requirements.
V.
Nevertheless, Respondents and the dissent seek refuge in
Supreme Court’s statement that “[i]t is for the State, in the
first instance, to explore the means and mechanisms for
compliance” with Graham’s requirements. Appellants’ Br. at 24,
38, 42-43; post at 2. According to Respondents and the dissent,
this single sentence effectively immunized Petitioner’s
sentence--and those of all other juvenile nonhomicide offenders
sentenced to life imprisonment eligible for any form of early
release other than executive clemency--from collateral review.
But the Supreme Court’s proper regard for States’
independent judgment regarding how best to operate their penal
systems does not, “[e]ven in the context of federal habeas, . .
. imply abandonment or abdication of judicial review.” Miller-
38
El v. Cockrell, 537 U.S. 322, 340 (2003). This is particularly
true when, as here, the Supreme Court clearly sets forth minimum
constitutional requirements to guide state courts’ and
policymakers’ decisions--requirements that the Supreme Court of
Virginia readily determined from the plain language of Graham.
In sum, we hold that notwithstanding its recognition of
Graham’s “governing legal principles,” the Supreme Court of
Virginia unreasonably concluded that Geriatric Release--a
program that predated Graham by more than 15 years, that permits
the Parole Board to deny release for any reason whatsoever, and
that treats juvenile offenders worse than adult offenders--
complies with Graham’s parole requirement. Accordingly, we
affirm the district court’s decision and remand so that the
Petitioner can be resentenced in accordance with Graham and the
Eighth Amendment.
AFFIRMED
39
NIEMEYER, Circuit Judge, dissenting:
In affirming the grant of Dennis LeBlanc’s habeas petition
brought under 28 U.S.C. § 2254, the majority holds that the
Virginia Supreme Court concluded unreasonably that Virginia’s
geriatric release program provided a meaningful opportunity for
release to juveniles and therefore satisfied the requirements of
Graham v. Florida, 560 U.S. 48 (2010). Graham forbids
sentencing juveniles to life in prison without parole for
nonhomicide crimes. In reaching its conclusion, the majority
relies simply on its expressed disagreement with the Virginia
Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d
386 (Va. 2011), and effectively overrules it. The Virginia
court’s opinion, however, is demonstrably every bit as
reasonable as the majority’s opinion in this case and should be
given deference under § 2254(d)(1).
After 16-year-old LeBlanc raped a 62-year-old woman in
Virginia Beach, Virginia, in 1999, he was convicted in the
Virginia Beach Circuit Court of abduction and rape. The court
sentenced him in 2003 to life imprisonment on each count. While
Virginia had, in 1994, abolished traditional parole for felony
offenders, see Va. Code Ann. § 53.1-165.1, it had at the same
time adopted a “geriatric release” program that allows for the
conditional release of inmates who serve at least 10 years of
their sentence and reach the age of 60, see id. § 53.1-40.01.
40
In 2010, the U.S. Supreme Court handed down its decision in
Graham, where it held that “for a juvenile offender who did not
commit homicide the Eighth Amendment forbids the sentence of
life without parole.” 560 U.S. at 74. The Court explained that
a State must provide this class of juvenile offenders “some
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation,” but that “[i]t is for the State,
in the first instance, to explore the means and mechanisms for
compliance.” Id. at 75.
In its first application of Graham, the Virginia Supreme
Court held that the factors Virginia applies in considering
candidates for geriatric release were the same as “the factors
used in the normal parole consideration process” and that, while
Virginia’s geriatric release program had “an age qualifier,” it
nonetheless afforded inmates, including juvenile offenders, “the
‘meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation’ required by the Eighth Amendment.”
Angel, 704 S.E.2d at 402 (quoting Graham, 560 U.S. at 75).
After Angel had been decided, LeBlanc filed a motion in the
Virginia Beach Circuit Court to vacate his sentence as invalid
under Graham. The Circuit Court denied his motion, relying on
Angel to conclude that Virginia had “an appropriate mechanism in
place” to enable LeBlanc “to receive some form of parole.” But
when LeBlanc sought federal habeas relief under 28 U.S.C.
41
§ 2254, the district court granted LeBlanc’s petition,
concluding, contrary to the Virginia court’s decision, that
Virginia’s geriatric release program fell short of Graham’s
requirements.
In now affirming, the majority unfortunately fails to
respect, in any meaningful way, the deference Congress requires
federal courts to give to state court decisions on post-
conviction review under § 2254. Under even a loose application
of the governing standard in § 2254(d), a reviewing federal
court would be constrained to conclude that the Virginia Beach
Circuit Court’s ruling was not contrary to or an unreasonable
application of Graham. See 28 U.S.C. § 2254(d)(1). To hold
otherwise would require finding that the Virginia Supreme
Court’s decision in Angel, as well as the Virginia Beach Circuit
Court’s decision relying on it, amounted to an “extreme
malfunction in the state criminal justice system.” Harrington
v. Richter, 562 U.S. 86, 102 (2011).
To reach its conclusion that Virginia’s geriatric release
program does not provide juveniles with a meaningful opportunity
to obtain release, the majority conducts its own de novo review
of the program, concluding that the program lacks “governing
standards” for release. The majority, however, fails to
recognize that our task on a § 2254 habeas petition is not to
evaluate state parole systems de novo but rather to determine
42
whether the Virginia Supreme Court’s evaluation of its own
program was an unreasonable application of Graham, see 28 U.S.C.
§ 2254(d)(1), which it clearly was not. Graham held that the
Eighth Amendment forbids States from determining, at the time of
sentencing, that a juvenile offender who did not commit a
homicide “never will be fit to reenter society,” 560 U.S. at 75
(emphasis added), and that such offenders must have “a chance to
demonstrate growth and maturity,” id. at 73. Analyzing the
sufficiency of Virginia’s geriatric release program under
Graham, the Virginia Supreme Court reasonably concluded that the
program, which employs the same “factors used in the normal
parole consideration process,” provides nonhomicide juvenile
offenders with “the ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation’ required by
the Eighth Amendment.” Angel, 704 S.E.2d at 402 (quoting
Graham, 560 U.S. at 75). While the majority may disagree with
the Virginia Supreme Court’s conclusion, the fact that it was
reasonable precludes LeBlanc from obtaining relief under § 2254.
Moreover, beyond this case, the majority’s approach will
encourage federal courts to scrutinize state policies and parole
determinations under similar systems, a result that Congress
clearly intended to forestall when it imposed the restrictions
stated in § 2254. Indeed, the Supreme Court also sought to
avoid this result by explicitly leaving the application of
43
Graham to the States. See Graham, 560 U.S. at 75 (noting that
it is for the State “to explore the means and mechanisms for
compliance”).
At bottom, when applying the prescribed standards to
evaluate the Virginia court’s application of Graham, it is clear
that LeBlanc’s petition for a federal writ of habeas corpus must
be denied. I now address his petition under those standards.
I
During the morning of July 6, 1999, Dennis LeBlanc, who was
at the time 16 years old, asked a 62-year-old woman, who was
walking home from a grocery store, for a cigarette. After the
woman told him that she did not smoke, LeBlanc pushed her down,
dragged her to nearby bushes, raped her, and stole her purse.
When police were later able to match LeBlanc’s DNA with that of
the sperm sample taken from the woman, LeBlanc was charged and
convicted in the Virginia Beach Circuit Court of rape, in
violation of Virginia Code § 18.2-61, and abduction with intent
to defile, in violation of Virginia Code § 18.2-48. He was
sentenced to life imprisonment on each count in March 2003. The
court noted that “the two offenses have to be some of the most
serious charges I’ve ever heard about.” When imposing life
imprisonment, the court did not mention parole, as traditional
parole had been abolished in 1994 when the geriatric release
44
program was adopted. ∗ In response to the sentence given, LeBlanc
told the court twice, “F--k you.”
More than seven years after LeBlanc’s sentencing, the
Supreme Court decided Graham, holding for the first time that
“for a juvenile offender who did not commit homicide the Eighth
Amendment forbids the sentence of life without parole.” 560
U.S. at 74 (emphasis added). The Court explained that while
“[a] State [was] not required to guarantee eventual freedom to a
juvenile offender convicted of a nonhomicide crime,” it was
required to provide the juvenile offender with “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Id. at 75. The Court, however, directed that
“[i]t is for the State, in the first instance, to explore the
means and mechanisms for compliance” with that command. Id.
After the Graham decision had been handed down, the
Virginia Supreme Court considered whether Virginia’s geriatric
release program satisfied Graham’s requirements, and it held
that the program did so. See Angel, 704 S.E.2d at 402. More
specifically, the court explained that Virginia’s geriatric
∗ The majority claims that LeBlanc was sentenced to “life
imprisonment without parole,” ante at 3 (emphasis added), but
its statement begs the question. LeBlanc was sentenced simply
to life imprisonment, and, at the time, his sentence allowed for
the possibility of release under Virginia’s geriatric release
program, leaving the question whether the program functions as a
form of parole.
45
release program, as set forth in Virginia Code § 53.1-40.01,
allows for the conditional release of inmates when they reach
age 60 and have served 10 years and that “the factors used in
the normal parole consideration process” apply to such
determinations. Id. The court concluded that, “[w]hile [the
geriatric release program] has an age qualifier, it provides
. . . the ‘meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation’ required by the Eighth
Amendment.” Id. (quoting Graham, 560 U.S. at 75).
In May 2011, several months after Angel was decided,
LeBlanc filed a motion in the Virginia Beach Circuit Court to
vacate his life sentence as invalid under Graham. He contended
that Angel was wrongly decided and that he did not indeed have a
meaningful opportunity for release. The Circuit Court, however,
denied LeBlanc’s motion, explaining:
[The] Supreme Court of Virginia has already looked at
this issue in the Angel case and determined that there
was an appropriate mechanism in place . . . for a
defendant to receive some form of parole as enunciated
in [Graham], and they denied Mr. Angel’s appeal. . . .
The court feels and finds and is so ordering that
there is an appropriate mechanism in place, that the
sentence rendered back in 2003 for Mr. LeBlanc . . .
in which the defendant received two life sentences
. . . was the appropriate sentence . . . .
(Emphasis added). The Virginia Supreme Court summarily denied
LeBlanc’s petitions for appeal and for rehearing.
46
LeBlanc filed this federal habeas petition pursuant to
§ 2254, contending again that the Virginia Supreme Court had
wrongly decided Angel and that, based on statistics that he had
presented to the state court, he had only a “remote possibility
of release,” which did not amount to the “meaningful
opportunity” for release required by Graham. A magistrate judge
recommended dismissing LeBlanc’s petition, but the district
court disagreed and granted the petition, ordering that the
Virginia Beach Circuit Court resentence LeBlanc. The district
court concluded that “the state court’s decision was both
contrary to, and an unreasonable application of, clearly
established federal law set forth in Graham,” explaining that
“[t]here is no possibility that fairminded jurists could
disagree that the state court’s decision conflicts with[] the
dictates of Graham.” The court noted further that the geriatric
release program “falls far short of the hallmarks of compassion,
mercy and fairness rooted in this nation’s commitment to
justice.”
From the district court’s judgment, the respondents -- the
Commonwealth of Virginia and Randall Mathena, the Warden of Red
Onion State Prison (collectively herein, the “Commonwealth” or
“Virginia”) -- filed this appeal.
47
II
The operative state court decision for our review is the
decision of the Virginia Beach Circuit Court. See Grueninger v.
Dir., Va. Dep’t of Corr., 813 F.3d 517, 525 (4th Cir. 2016)
(“‘look[ing] through’” the Virginia Supreme Court’s summary
refusal to review the defendant’s appeal and “evaluat[ing] the
Circuit Court’s reasoned decision”). That decision concluded
that Virginia’s geriatric release program provides an
“appropriate mechanism” for implementing Graham. The Circuit
Court relied on the Virginia Supreme Court’s opinion in Angel,
which applied Graham and concluded that Virginia’s geriatric
release program, which uses the “normal” parole factors for
determining release, provided “the ‘meaningful opportunity to
obtain released based on demonstrated maturity and
rehabilitation’ required by the Eighth Amendment.” Angel, 704
S.E.2d at 402 (quoting Graham, 560 U.S. at 75).
Faced with the district court’s contrary conclusion, we
must decide whether the Circuit Court’s decision “was contrary
to, or involved an unreasonable application of,” Graham, 28
U.S.C. § 2254(d)(1).
A
First, to satisfy the requirement of § 2254(d)(1) that the
state court decision be shown to be “contrary to” Graham,
LeBlanc would have to show (1) that the state court “applie[d] a
48
rule different from the governing law set forth in [Supreme
Court] cases,” or (2) that it decided this case “differently
than [the Supreme Court] [has] done on a set of materially
indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Therefore, “a run-of-the-mill state-court decision
applying the correct legal rule from [Supreme Court] cases to
the facts of a prisoner’s case would not fit comfortably within
[the] ‘contrary to’ clause.” Williams v. Taylor, 529 U.S. 362,
406 (2000).
In this case, no one can seriously argue that the Virginia
Beach Circuit Court failed to correctly identify Graham as
stating the applicable legal rule. In denying LeBlanc’s motion
to vacate his sentence, the Circuit Court specifically discussed
Graham, noting how “the U.S. Supreme Court in rendering its
decision gave the court[s] guidelines to deal with defendants
who were juveniles at the time of their offenses.” Because the
Circuit Court operated under the correct U.S. Supreme Court
rules and did not reach an opposite conclusion from the Supreme
Court on a question of law, the argument that the Virginia Beach
Circuit Court produced a decision “contrary to” Graham can
survive only if the facts of Graham were “materially
indistinguishable” from LeBlanc’s case. Bell, 535 U.S. at 694.
But LeBlanc cannot make this showing either.
49
Graham involved a juvenile offender convicted in Florida
for a nonhomicide crime, who was sentenced to life in prison
without any possibility of parole. As such, his sentence:
guarantee[d] he will die in prison without any
meaningful opportunity to obtain release, no matter
what he might do to demonstrate that the bad acts he
committed as a teenager [were] not representative of
his true character, even if he [were to] spend[] the
next half century attempting to atone for his crimes
and learn from his mistakes.
560 U.S. at 79. Because Florida had abolished its parole
system, the life sentence gave Graham “no possibility of release
unless he [was] granted executive clemency.” Id. at 57
(emphasis added). The Court noted, however, that executive
clemency provided Graham only a “remote possibility” of release,
id. at 70, and that Florida had effectively “denied him any
chance to later demonstrate that he [was] fit to rejoin
society,” id. at 79. In these circumstances, the Court held
that the Eighth Amendment prohibits the imposition of a sentence
of life without the possibility of parole for juvenile offenders
who commit nonhomicide crimes. Id. at 74.
LeBlanc’s case differs materially. Unlike Florida law
before Graham, Virginia’s geriatric law affords a juvenile
sentenced to life imprisonment some opportunity for release.
The geriatric law provides in relevant part:
Any person serving a sentence imposed upon a
conviction for a felony offense . . . who has reached
the age of sixty or older and who has served at least
50
ten years of the sentence imposed may petition the
Parole Board for conditional release. The Parole
Board shall promulgate regulations to implement the
provisions of this section.
Va. Code Ann. § 53.1-40.01. And the Virginia Supreme Court --
the ultimate authority on Virginia law -- has construed “[t]he
regulations for conditional release under [§ 53.1-40.01] [to]
provide that if the prisoner meets the qualifications for
consideration contained in the statute, the factors used in the
normal parole consideration process apply to conditional release
decisions under this statute.” Angel, 704 S.E.2d at 402
(emphasis added). Thus, LeBlanc cannot show that the facts in
Graham, where the prisoner enjoyed no opportunity for release
outside of clemency, are materially indistinguishable from the
facts of this case, where LeBlanc has an opportunity to be
released by the Parole Board.
B
Second, LeBlanc is also unable to demonstrate that the
decision by the Virginia Beach Circuit Court, applying Angel,
was an “unreasonable application of” Graham. See 28 U.S.C.
§ 2254(d)(1). To satisfy this requirement, LeBlanc would have
to show that, even “if the state court identifie[d] the correct
governing legal principle from [Supreme Court] decisions,” it
“unreasonably applie[d] that principle to the facts of the . . .
case.” Williams, 529 U.S. at 365. And to show that the state
51
court unreasonably applied governing legal principles, he would
have to show that the state court’s decision was “‘objectively
unreasonable,’” rather than “merely wrong” or involving “clear
error.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting
Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
To emphasize the difficulty of meeting this standard, the
Supreme Court has said that a prisoner would have to show “that
the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S.
at 103; see also id. at 101 (“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree’ on the correctness of the
state court’s decision” (quoting Yarborough v. Alvarado, 541
U.S. 652, 664 (2004))). Not surprisingly, the rare decision
finding § 2254(d)(1) satisfied typically arises from the
misapplication of a long-established Supreme Court standard.
See, e.g., Rompilla v. Beard, 545 U.S. 374, 389 (2005) (finding
it was objectively unreasonable for the state court to conclude
that, under Strickland v. Washington, 466 U.S. 668 (1984),
capital defense lawyer’s failure to consult prior conviction
file that was certain to contain aggravating evidence was not
52
ineffective assistance); Wiggins v. Smith, 539 U.S. 510, 527-28
(2003) (similar for file containing mitigating evidence).
In this case, after the Virginia Beach Circuit Court
correctly identified Graham as the governing law, it applied
that decision to the facts of LeBlanc’s case. In doing so, the
Circuit Court considered the Graham requirement that States must
provide a mechanism that affords a juvenile sentenced to life
imprisonment “a meaningful opportunity for release.” Since the
Graham Court stated that its holding applied only to juvenile
offenders convicted of a nonhomicide crime and sentenced to life
imprisonment without parole, Graham, 560 U.S. at 75, and since
the Virginia Supreme Court had held that the geriatric release
program employed normal parole factors, the Circuit Court
reasonably concluded that LeBlanc’s sentence did not violate
Graham.
Indeed, it strains credulity to conclude that the Circuit
Court’s application of Graham was “so lacking in justification”
that it fell “beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103. For one, Graham’s
focus on the parallel between life without parole and the death
penalty, see 560 U.S. at 69-70, along with the Court’s
indictment of life without parole as impermissibly deeming a
“juvenile offender forever . . . a danger to society,” id. at 72
(emphasis added), suggests that the Court saw no constitutional
53
problem with state parole systems that allow for release only
later in life. Indeed, the Court emphasized that “[t]he Eighth
Amendment does not foreclose the possibility that persons
convicted of nonhomicide crimes committed before adulthood will
remain behind bars for life. It does prohibit States from
making the judgment at the outset that those offenders never
will be fit to reenter society.” Id. at 75 (emphasis added).
Thus, the state court was justified in reading Graham’s Eighth
Amendment concerns as limited to traditional sentences of life
without any possibility of parole.
Further, Graham did not define the bounds of its singular
requirement that a juvenile must have “some meaningful
opportunity to obtain release based on demonstrated maturity and
rehabilitation.” 575 U.S. at 75. Rather, in adopting “[a]
categorical rule against life without parole for juvenile
nonhomicide offenders,” id. at 79, Graham declined to address
what characteristics render a parole or release program
“meaningful.” The Court did not dictate, for example, how
frequently a parole board must meet regarding a juvenile
nonhomicide offender or when, after a sentence is imposed on the
offender, it must first begin meeting. Graham required only
that, under a procedure that the Court did not specify, the
offender be given a meaningful opportunity for release based on
demonstrated maturity and rehabilitation. Given Graham’s leeway
54
with respect to procedures and decisionmaking, the range of
permissible state court interpretation is commensurately broad.
See Yarborough, 541 U.S. at 664 (“[E]valuating whether a rule
application was unreasonable requires considering the rule’s
specificity. The more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations”).
This is for good reason. Federal courts simply cannot be
inserting themselves so deeply into state parole procedures that
they effectively usurp the role of a state parole board. See
Vann v. Angelone, 73 F.3d 519, 521 (4th Cir. 1996) (“It is
difficult to imagine a context more deserving of federal
deference than state parole decisions”).
Affording the proper deference to its interpretation of
Graham’s broad rule, it is readily apparent that the Virginia
Beach Circuit Court operated well within its margin of error in
concluding that Virginia’s geriatric release program provides a
“meaningful opportunity to obtain release.” The program
includes the Parole Board’s review of the inmate’s circumstances
by considering a range of factors, such as:
• Whether the individual’s history, physical and
mental condition and character, and the individual’s
conduct, employment, education, vocational training,
and other developmental activities during
incarceration, reflect the probability that the
individual will lead a law abiding life in the
community and live up to all conditions of
[geriatric release] if released;
55
• Length of sentence;
• Facts and circumstances of the offense;
• Mitigating and aggravating factors;
• Inter-personal relationships with staff and inmates;
and
• Changes in attitude toward self and others.
Virginia Parole Board Policy Manual 2-4 (Oct. 2006). These
factors on their face allow for consideration of an offender’s
maturity, rehabilitation, and youth at the time of the offense.
Further, inmates such as LeBlanc know in advance that the
Virginia Parole Board will be considering these factors when it
determines geriatric release so that “it is possible to predict,
at least to some extent, when [geriatric release] might be
granted.” Solem v. Helm, 463 U.S. 277, 301 (1983). Thus, the
Virginia Beach Circuit Court’s conclusion, after applying Angel,
that Virginia’s geriatric release law provided the meaningful
opportunity to obtain release, certainly was not “an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington, 562 U.S.
at 103; see also id. at 102 (“It bears repeating that even a
strong case for relief does not mean the state court’s contrary
conclusion was unreasonable”). To hold otherwise would require
a finding in effect that the Virginia Beach Circuit Court judge
56
and the Virginia Supreme Court justices failed to meet the
definition of “fairminded jurists.” See id. at 101.
LeBlanc concedes, as he must, that the geriatric release
program provides some opportunity for release. He argues,
rather, that the opportunity is not meaningful because of the
low level of success shown by statistics. The statistics to
which he refers, however, provide him with minimal support as
they relate to older inmates and do not reflect the outcomes of
offenders similarly situated to him. Given that Virginia’s
parole reforms apply only to felony offenders who committed
their crimes after 1994, juvenile offenders sentenced after 1994
will not gain eligibility for geriatric release for years to
come, as they must first reach the age of 60. A 17-year-old
juvenile offender who committed a nonhomicide offense in 1995,
for example, would not become eligible for geriatric release
until 2038. Because of this timing, relevant statistics for
juvenile offenders simply do not exist.
I conclude that, just as the Virginia Beach Circuit Court
did not rule “contrary to” Graham, it also was not an
“unreasonable application of” Graham to LeBlanc’s circumstances
within the meaning of § 2254(d)(1).
III
Nonetheless, the majority, for purposes I do not fully
understand, engages in an aggressive effort to prop up LeBlanc’s
57
claim. To do so, it rests on its unsupported conclusions that
Virginia’s geriatric release program does not adequately allow
for release “based on maturity and rehabilitation”; that it does
not account for youth as a mitigating factor; and that it lacks
governing standards. Even if the majority’s rigorous, de novo
scrutiny of the Virginia court’s reasoning did not defy
§ 2254(d)’s deferential standard of review, its conclusions are
demonstrably mistaken on their own terms.
The majority first claims that Virginia’s program fails to
provide any consideration for the “special mitigating force of
youth,” ante at 34; see also ante at 30-31, and for an inmate’s
progress with respect to “maturity and rehabilitation,” ante at
28-29. Yet, in the very same opinion, it contradictorily quotes
the factors that the Parole Board is required to consider in
granting release under the program, noting that the Parole Board
is to consider “certain” characteristics of the offender,
including “‘the individual’s history, physical and mental
condition and character, . . . conduct, employment, education,
vocational training, and other developmental activities during
incarceration,’ prior criminal record, behavior while
incarcerated, and ‘changes in motivation and behavior.’” Ante
at 9-10 (emphasis added). Saying that these factors do not
account for maturity and rehabilitation flaunts reason. But
more importantly, the Virginia Supreme Court’s conclusion that
58
Virginia law requires considerations of “normal parole factors”
such as rehabilitation and maturity is one of state law and thus
is binding on this court. And once it is understood that
Virginia law requires consideration of maturity and
rehabilitation, it follows that, under the § 2254(d) standard,
Virginia’s geriatric release program satisfied Graham.
Second, the majority’s conclusion that the Virginia program
lacks “governing standards” for release is puzzling in light of
the majority’s own description of the Virginia program, which
includes a detailed description of the relevant standards:
The Geriatric Release Administrative Procedures
set forth a two-stage review process for Geriatric
Release petitions. [Id.] At the “Initial Review”
stage, the Parole Board reviews a prisoner’s petition
-- which must provide “compelling reasons for
conditional release” -- and the prisoner’s “central
file and any other pertinent information.” J.A. 287.
The Parole Board may deny the petition at the Initial
Review stage based on a majority vote. [Id.] Neither
the statute nor the Geriatric Release Administrative
Procedures states what constitute “compelling reasons
for conditional release” nor does either document set
forth any criteria for granting or denying a
prisoner’s petition at the Initial Review stage. [Id.]
If the Parole Board does not deny a petition at
the Initial Review stage, the petition moves forward
to the “Assessment Review” stage. [Id. at 288] As
part of the Assessment Review, a Parole Board member
or designated staff member interviews the prisoner.
[Id.] During that interview, the prisoner may present
written and oral statements as well as any written
material bearing on his case for parole. The
interviewer then drafts a written assessment of the
prisoner’s “suitability for conditional release” and,
based on that assessment, recommends whether the
Parole Board should grant the petition. J.A. 288. In
59
order to grant geriatric release to a prisoner
sentenced to life imprisonment, at least four members
of the five-member Parole Board must vote in favor of
release. [Id.]
In engaging in the Assessment Review, Parole
Board members should consider “[a]ll factors in the
parole consideration process including Board
appointments and Victim Input.” Id. The Virginia
Parole Board Policy Manual includes a long list of
“decision factors” to be considered in the parole
review process. J.A. 297. These factors include:
public safety, the facts and circumstances of the
offense, the length and type of sentence, and the
proposed release plan. [J.A. 297–99.] The Parole
Board also should consider certain characteristics of
the offender, including “the individual’s history,
physical and mental condition and character, . . .
conduct, employment, education, vocational training,
and other developmental activities during
incarceration,” prior criminal record, behavior while
incarcerated, and “changes in motivation and
behavior.” J.A. 297–99. Finally, the Parole Board
should consider impressions gained from interviewing
the prisoner as well as information from family
members, victims, and other individuals. [J.A. 300.]
Ante at 8-10 (emphasis added; brackets in original).
The majority’s effort to bypass the “governing standards”
that it quotes is, in essence, an argument that the Parole Board
may not deny release without considering the juvenile offender’s
maturity and rehabilitation and that the Parole Board must, on
each application for release, explicitly consider maturity and
rehabilitation, regardless of what is presented in the
application. This argument, however, reads into Graham far more
than the case actually holds. Graham does not dictate parole
board procedures and decisionmaking. And, more particularly, it
60
does not limit the permissible factors for denying release.
Rather, it requires that the juvenile offender be given an
opportunity for release based on “demonstrated maturity and
rehabilitation,” imposing the burden on the juvenile offender to
present evidence of maturity and rehabilitation and in turn
requiring that the parole board have an ability to consider that
evidence in deciding whether the offender should be released.
Within this structure, therefore, when the Virginia Parole Board
is presented with a juvenile offender’s application that makes a
showing of maturity and rehabilitation, the Board is authorized,
on the stated factors under which it operates, to grant release.
This is just the meaningful opportunity that the Supreme Court
describes in Graham. And Angel thus properly held that the
Virginia Geriatric Release factors provide that ability to grant
release on demonstrated maturity and rehabilitation,
particularly in stating that the Parole Board should consider
the juvenile offender’s developmental activities during
incarceration, his behavior while incarcerated, and the changes
in his motivation and behavior.
Stated otherwise, under the majority’s view, to satisfy
Graham a State would have to consider only the Graham factors in
considering release, denying the Parole Board the opportunity to
consider any of the non-Graham factors that might be relevant to
the juvenile offender’s application for release and the Board’s
61
decision on that application. That aggressive reading of Graham
would, I think, surprise the Supreme Court that decided it. But
more importantly, it certainly was not unreasonable for the
Virginia Circuit Court to understand Graham as not mandating the
precise factors that every parole board must consider when
reviewing juvenile offenders’ applications for release.
The majority also faults the geriatric release program
because it allows for longer sentences to juveniles than adults,
relying simply on the fact that juveniles commit their crimes
earlier in life. See ante at 21, 34-35. It is a reality that a
person who commits a serious crime at age 35 or, indeed, as a
juvenile, will have the possibility of serving more years in
prison than a person who commits the same crime at age 62. But
if that reality violates Graham, it is hard to see how any term-
of-years sentence for a juvenile could withstand Eighth
Amendment scrutiny; a young person’s chances of serving a full
sentence are inherently higher than an older person’s.
Finally, the majority surmises that the Virginia Supreme
Court in Angel expected that Angel would spend the rest of his
life in jail and that therefore the court’s application of
Graham was unreasonable because this observation implied that
early release would be “the exception, rather than the
expectation.” Ante at 31. This ground for attacking the
Virginia Supreme Court can rest only on wild speculation, as no
62
juvenile offender has yet been processed under the State’s
geriatric release program, and the majority has pointed to no
data to predict how the Parole Board will decide applications of
juveniles for early release when they first qualify. Graham did
not require that juveniles be released at any given time; it
required that the juveniles be given a meaningful opportunity to
prove themselves and to persuade the Parole Board to grant them
release. If the Parole Board is given that authority by law, as
the Virginia court found it is, then Graham is satisfied.
In short, the majority has reviewed de novo Virginia’s
parole criteria based on its own expectations of how the system
might work and has failed to appreciate that our sole task on a
§ 2254 petition is to determine whether the Virginia Supreme
Court’s decision in applying Graham was unreasonable. And in
fulfilling the task given by § 2254, it is not sufficient to
show simply that the Virginia Supreme Court was wrong or even
committed clear error; rather, it must be shown that the court
erred in a manner “well understood and comprehended in existing
law,” such that its error was “beyond any possibility for
fairminded disagreement.” See White, 134 S. Ct. at 1702(quoting Harrington, 562 U.S. at 103).
63
* * *
Because of the limitations of the Supreme Court’s holding
in Graham, the directly relevant holding by the Supreme Court of
Virginia in Angel, and the restrictions imposed by § 2254(d), we
are simply not free to grant LeBlanc’s habeas petition.
Unfortunately, the majority, in its adventuresome opinion, pays
only lip service to the required standards of review. Were it
to have applied them meaningfully, I submit, the judgment of the
district court granting LeBlanc his habeas petition would have
to be reversed and the case remanded with instructions to
dismiss the petition.
64