Criminal Practice – SCOTUS precedents mandate “harsh” habeas result

In re Phillips (Lawyers Weekly No. 001-011-18, 15 pp.) (Niemeyer, J.) No. 16-9566; Jan. 16, 2018; on petition under 28 U.S.C. § 2254. 4th Cir.

Holding: The Court of Appeals denied Jarius Phillips’ motion for authorization to file a successive application for a writ of habeas corpus, relying on retroactive application of Miller v. Alabama, 567 U.S. 460 (2012).

In 2001, Phillips was sentenced to four terms plus 45 years’ imprisonment for crimes he committed at age 17, including abduction with intent to defile, rape, object sexual penetration, malicious wounding, and robbery. In 2013, Phillips filed an application for a writ of habeas corpus, claiming that he had been sentenced to life without parole for crimes committed as a juvenile, in violation of the Eighth Amendment. For support, he quoted at length from Miller. The district court ultimately dismissed Phillips’ application with prejudice as time-barred.

In 2015, Phillips filed a second application for a writ of habeas corpus, citing LeBlanc v. Mathena, No. 2:12cv340, 2015 WL 4042175 (E.D. Va. July 1, 2015). In that case, the district court concluded that Virginia courts had unreasonably applied Graham v. Florida, 560 U.S. 48 (2010), by holding that the Commonwealth’s geriatric release program provided juvenile non-homicide offenders serving life sentences with the necessary meaningful opportunity for release. Phillips did not obtain the necessary prefiling authorization from the 4th Circuit; thus, this second application was dismissed without prejudice.

Phillips accordingly filed the current motion, requesting authorization for the district court to consider his second/successive application. The motion cited Graham, Miller, and LeBlanc. After affirming LeBlanc, this court appointed Phillips counsel to represent him on this motion. Before briefs were filed, however, the U.S. Supreme Court reversed the LeBlanc decision, holding that Virginia’s geriatric release program did satisfy Graham.

• 2244(b) prima facie showing

In his 2013 application, Phillips relied extensively on Miller to attempt to obtain habeas relief. He now seeks leave to file a successive habeas application to present again a claim based on Miller, and therefore we must deny his motion for authorization.

To make a prima facie showing that his motion satisfies the requirements of § 2244(b), Phillips must demonstrate that his application presents a claim that was not presented in a prior application and that relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Post-LeBlanc, Phillips has now clarified his position to assert that he relies only on Miller for purposes of this proceeding. He claims that Miller established a new rule of constitutional law that was previously unavailable to him when he filed his first federal habeas application in 2013, because Miller was made retroactive to cases on collateral review by the Supreme Court only in its decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Phillips relies for support on the court’s decision in In re Vial, 115 F.3d 1192 (4th Cir. 1997), which stated that a new rule of constitutional law is not available to individuals seeking to file successive motions for post-conviction relief until the Supreme Court declares the applicability of that particular rule to collateral proceedings. According to Phillips, it follows from Vial that, because it was unclear in 2013 whether Miller would apply retroactively, a Miller claim was not then available to him; therefore, he was legally incapable of presenting such a claim at that time. Phillips argues that, if this rule is not applied, applicants like him “confront Scylla and Charybdis” in that they are bound by the statutory one-year limitations period, but timely motions may be denied with prejudice before retroactivity is decided.

But the court’s opinion in Vial addressed a limited issue, and does not purport to answer any question of when a claim based on a new rule of constitutional law is “presented” in a habeas application. Any dictum in that opinion suggesting an answer would, in any event, have been undermined by the Supreme Court’s opinion in Dodd v. United States, 545 U.S. 353 (2005). In Dodd, the Court rejected a federal prisoner’s argument that a statutory limitations period ran from the date on which the asserted right was made retroactive. Rather, the statute at issue unequivocally identifies only one date from which the limitation period is measured: the date on which the asserted right was initially recognized by the Supreme Court.

Critically, Dodd explicitly noted that, under the statutory framework, an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time-barred except in the rare case in which the Court announces a new rule of constitutional law and makes it retroactive within one year. But this potential for harsh results, the Supreme Court said, does not give courts license to rewrite the statute that Congress has enacted.

Dodd’s reasoning controls here. In this case, Phillips fully presented his Miller claim in 2013 and now proposes to file a second or successive application to present the same claim. This is forbidden by § 2244(b)(1) and (b)(3)(C). Because Phillips has failed to make the necessary prima facie showing that his successive habeas application would present a claim that was not “presented” in his first, his motion for leave to file a successive application must be denied.