Jason Clem v. Leslie Fleming
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:13-cv-00319-SGW-RSB. Copies to all parties and the district court. [999950362]. [14-6682]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6682
JASON CLEM,
Petitioner – Appellant,
v.
LESLIE FLEMING, Warden, Keen Mountain Correctional Center,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Samuel G. Wilson, District
Judge. (7:13-cv-00319-SGW-RSB)
Argued:
September 20, 2016
Decided:
October 19, 2016
Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Judge Davis wrote a separate concurring opinion.
Senior
ARGUED: Amy Lynn DeLine, SIDLEY AUSTIN LLP, Washington, D.C.,
for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
ON
BRIEF: Guy S. Neal, Matthew J. Warren, SIDLEY AUSTIN LLP,
Washington, D.C., for Appellant.
Mark R. Herring, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Petitioner
dismissal
of
Jason
his
Clem
authorized
appeals
the
successive
district
habeas
court’s
petition
under
28 U.S.C. § 2254, challenging his sentence of life imprisonment
without parole.
He argues that the Virginia statute under which
he was sentenced is unconstitutional because it mandates life
imprisonment without parole for a juvenile convicted of capital
murder in violation of Miller v. Alabama, 132 S. Ct. 2455, 2469
(2012).
with
We vacate the order of the district court and remand
instructions
to
hold
in
abeyance
for
the
reasons
that
follow and as provided herein.
I.
A.
On
March
8,
2004,
16-year-old
Clem
packed
a
knapsack
containing knives and a hammer and set off to the restaurant
where he worked.
Upon arrival, Clem hit his employer Robert
Lacy, Jr., on the head with the hammer and proceeded to stab him
several times.
Clem fled after taking money from the register
and the surveillance tape.
Lacy died as a result of Clem’s
attack.
B.
Following
his
indictment
for
capital
murder,
Clem
stood
trial in the Rockingham County Circuit Court in Virginia.
2
On
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May 12, 2005, a jury found him guilty of capital murder.
At the
time of his conviction, Virginia law provided that the penalty
for capital murder was “death, if the person so convicted was
18 years of age or older at the time of the offense . . . , or
imprisonment
$100,000.”
for
life
and
. . .
a
fine
Va. Code § 18.2-10(a) (2005).
of
not
more
than
The Virginia circuit
judge instructed the jury it could impose a sentence of life, or
life with a fine of up to $100,000.
The jury returned the
maximum sentence for a juvenile convicted of capital murder-life imprisonment and a fine of $100,000.
The circuit judge
granted Clem’s motion for a presentence report and sentencing
hearing,
which
included
evidence
about
Clem’s
tumultuous
upbringing and history of mental illness.
At Clem’s sentencing, the circuit judge noted that he had
“read the presentence report . . . and also considered all of
the evidence in the nature of aggravation or mitigation in the
case” but found “no reason to deviate from the jury verdict.”
J.A.
392.
The
circuit
judge
adopted
the
jury’s
verdict,
sentencing Clem to life imprisonment without parole and a fine
of $100,000.
Clem appealed his conviction through the Virginia
courts, and the Supreme Court of Virginia denied his petition
for direct appeal on September 21, 2006.
Clem then filed an
unsuccessful state habeas petition in 2007 arguing, inter alia,
that sentencing a juvenile to life imprisonment without parole
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was cruel and unusual punishment.
Both the Rockingham County
Circuit Court and the Supreme Court of Virginia dismissed Clem’s
petitions with regard to this claim, finding he was procedurally
barred
because
appeal.
In
Western
habeas
he
had
2009,
District
petition
failed
to
the
United
States
of
Virginia
pursuant
raise
28
claim
District
rejected
to
the
U.S.C.
on
Court
Clem’s
§ 2254,
direct
for
first
the
federal
which
raised
essentially the same claims as his state habeas petition.
II.
Roughly
Supreme
seven
Court
held
years
that
after
the
Clem’s
Eighth
conviction,
Amendment
the
U.S.
prohibits
a
mandatory life sentence without parole when the convicted person
was a juvenile at the time of the offense.
at 2469.
Miller, 132 S. Ct.
Miller requires that “a judge or jury . . . have the
opportunity to consider mitigating circumstances,” including “an
offender’s
youth
and
attendant
characteristics”
before
sentencing a juvenile to life imprisonment without parole.
Id.
at 2475, 2471. Clem filed this authorized successive federal
habeas petition to seek relief under Miller.
Respondent moved the district court to dismiss on three
alternate
failed
to
grounds:
(1)
Miller
exhaust
his
state
was
not
remedies;
retroactive;
and
(3)
the
(2)
Clem
Virginia
circuit court judge had comported with Miller’s requirements at
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Clem’s
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sentencing.
deciding,
collateral
that
The
Miller
review
and
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district
court
retroactively
found
that
assumed,
applied
Clem
was
to
without
cases
excused
on
from
exhausting state remedies because there was no state corrective
process available to him.
that
the
Virginia
However, the district court concluded
circuit
judge
had
in
fact
considered
mitigating circumstances consistent with Miller’s requirements
and dismissed Clem’s petition.
This appeal followed.
III.
During the pendency of Clem’s instant appeal from federal
district
court,
the
U.S.
Supreme
Court
held
that
Miller
announced a substantive rule and, therefore, was retroactive.
Montgomery
v.
Louisiana,
136
S.
Ct.
718,
736
parties renew the remaining claims on appeal.
(2016).
The
We review the
district court’s dismissal of a habeas petition de novo.
Gordon
v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015).
A.
Clem argues that Virginia’s capital murder statute violates
Miller because the only sentencing option available to the judge
was life imprisonment without parole.
Respondent argues that
Virginia’s capital murder sentencing statute is not mandatory
but part of a larger statutory scheme that affords a trial judge
discretion to “suspend imposition of [a] sentence or suspend the
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sentence
in
whole
However,
before
or
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part.”
reviewing
Va.
the
Code
merits,
§ 19.2-303
we
first
(2005).
consider
Respondent’s threshold argument that Clem must exhaust his state
remedies.
B.
It
is
undisputed
that
Clem
has
not
exhausted
his
state
remedies, as he has not raised his Miller claim in state court.
Although generally a state prisoner must exhaust available state
court remedies before filing a federal habeas petition, there is
an exception when exhaustion would be futile because the state
provides no remedy.
Ham v. North Carolina, 471 F.2d 406, 407
(4th
Virginia
Cir.
1973).
imposes
limitations for habeas petitions.
a
criminal
sentence
must
be
a
strict
statute
of
A habeas petition challenging
filed
“within
one
year
from
. . . final disposition of the direct appeal in state court.”
Va. Code § 8.01-654(A)(2).
file
a
petition
seeking
before September 21, 2007.
Accordingly, Clem would have had to
any
state
post-conviction
remedies
The Supreme Court of Virginia has
noted that the statute of limitations “contains no exception
allowing a petition to be filed after the expiration of these
limitations periods.”
(Va. 2004).
Hines v. Kuplinski, 591 S.E.2d 692, 693
The district court assumed without deciding that
Clem would be excused from exhausting his state remedies because
there
was
no
state
corrective
6
process
available
to
him.
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However, after the district court dismissed Clem’s petition, the
Supreme
Court
of
Virginia
sentencing
statute
petitioner
would
petition.
at
reviewed
issue
have
been
here
a
challenge
several
time-barred
to
from
same
after
years
the
the
filing
a
habeas
See Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014),
vacated, 136 S. Ct. 1358 (2016).
In Jones, the petitioner, relying on Miller, filed a motion
to vacate his life without parole sentence twelve years after
pleading
guilty
to
capital
murder
and
other
charges.
Id.
at 824.
Though the Supreme Court of Virginia assumed without
deciding that Miller was retroactive, the U.S. Supreme Court
vacated
Jones,
consideration
in
remanding
light
to
of
136 S. Ct. 1358 (2016).
that
court
Montgomery.”
“for
Jones
v.
further
Virginia,
The Supreme Court of Virginia reheard
Jones one week before oral argument in this case.
Although
failure
to
exhaust
automatically
“deprive
an
appellate
consider
the
dictates
a
merits
“strong
of
a
habeas
presumption
in
state
court
remedies
of
corpus”
favor
jurisdiction
petition,
of
not
to
comity
requiring
prisoner to pursue his available state remedies.”
Greer, 481 U.S. 129, 131 (1987).
does
the
Granberry v.
Moreover, we generally resolve
doubts as to whether an issue has been presented to a state
court against exhaustion.
42
(4th
Cir.
1976).
Durkin v. Davis, 538 F.2d 1037, 1041–
Particularly
7
here,
where
the
state’s
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highest court may soon issue a decision that could affect, if
not
resolve,
action
is
to
Accordingly,
remand
the
the
issue
stay
of
this
we
vacate
case
with
exhaustion,
case
the
the
pending
order
of
instructions
prudent
resolution
the
to
district
hold
this
course
of
of
Jones. ∗
court
and
action
in
abeyance pending the Supreme Court of Virginia’s disposition of
Jones.
Depending on the outcome in Jones, we leave it to the
district court to decide, in the first instance, whether Clem
has an available state remedy that he must first exhaust.
∗
Respondent maintains that there is another reason why Clem
has not exhausted his state remedies. In Mueller v. Murray the
Supreme Court of Virginia considered a death row prisoner’s
argument that a new U.S. Supreme Court decision, Simmons v.
South Carolina, 512 U.S. 154 (1994), should apply retroactively
to his case. The Supreme Court of Virginia ultimately rejected
this claim because it found that Simmons did “not fall within
either Teague [v. Lane] exception.”
478 S.E.2d 542, 549 (Va.
1996).
Here, however, the U.S. Supreme Court has held that
“Miller announced a substantive rule of constitutional law,”
Montgomery, 136 S. Ct. at 735, and therefore this case fits
within an exception to non-retroactivity under Teague v. Lane,
489 U.S. 288, 311 (1989).
By implication, Respondent argues
that because the Supreme Court of Virginia suggested it would
consider Teague exceptions to be retroactively applicable for
state habeas petitions, Clem could file his petition in state
court.
However, because Mueller was decided before Virginia
enacted its habeas statute of limitations and has never been
cited in a published decision by a Virginia court for the
proposition that a new constitutional rule could overcome the
procedural bar of Va. Code § 8.01-654(A), we decline to rely on
this line of reasoning today.
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IV.
For the foregoing reasons, the judgment of the district
court is
VACATED AND REMANDED.
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DAVIS, Senior Circuit Judge, concurring:
I join the per curiam opinion of the Court.
This appeal,
and the exhaustion issue it presents, comes to us in a rather
convoluted posture: namely, after an opaque remand, a classic
“GVR” (petition “granted, vacated and remanded”) by the Supreme
Court of the United States, of Jones v. Commonwealth, 763 S.E.2d
823 (Va. 2014), vacated, 136 S. Ct. 1358 (2016).
the
Supreme
Court
of
Virginia
held,
In that case,
unanimously
and
unambiguously, that “a Class 1 felony [including, as in Jones, a
life
sentence
imposed
upon
one
who
was
a
juvenile
when
he
committed capital murder] does not impose a mandatory minimum
sentence under Virginia law.”
Id. at 826.
As the per curiam
opinion observes, the Supreme Court of Virginia reached that
holding even as it assumed the retroactivity of Miller.
One is
left puzzling, therefore, over exactly what the Supreme Court of
the United States imagined might change in the reasoning of the
Supreme Court of Virginia simply by virtue of the fact that the
former’s
holding
in
Montgomery
merely
elevated
the
Commonwealth’s “assumption” regarding retroactivity to a binding
rule of federal constitutional law.
It seems to me, in any event, that the issue of whether or
not,
under
Miller
and
Montgomery,
a
state
statutory
scheme
mandates (within the contemplation of the Eighth Amendment) a
life sentence upon conviction is an issue of federal law, and
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not, as might appear on first glance, solely an issue of state
law. *
Time will tell.
*
We intimated as much in Johnson v. Ponton, 780 F.3d 219,
222 n.2 (4th Cir. 2015), abrogated by Montgomery v. Louisiana,
136 S. Ct. 718 (2016), and vacated, Johnson v. Manis, 136 S. Ct.
2443 (2016) (mem.).
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