US v. Philip Friend

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:99-cr-00201-REP-RCY-4,3:14-cv-00640-REP-RCY Copies to all parties and the district court/agency. [999904932]. Mailed to: Philip Friend, Gregory Jacob. [15-7091]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7091

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PHILIP BERNARD FRIEND,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge.
(3:99-cr-00201-REP-RCY-4; 3:14-cv-00640-REPRCY)

Submitted:

July 27, 2016

Decided:

August 5, 2016

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Vacated and remanded by unpublished per curiam opinion.

Gregory F. Jacob, Deanna Marie Rice, O’MELVENY & MYERS, LLP,
Washington, D.C., for Appellant.
Richard Daniel Cooke,
Assistant United States Attorney, Brian R. Hood, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Philip Bernard Friend appeals the district court’s order
denying

relief

on

his

28

U.S.C.

§

2255

(2012)

motion.

We

granted a certificate of appealability on the issue of whether
Friend is entitled to resentencing in light of Montgomery v.
Louisiana, 136 S. Ct. 718 (2016).

Having reviewed the parties’

informal briefs and the record on appeal, we vacate the district
court’s

judgment

and

remand

to

the

district

court

for

resentencing.
Friend was arrested at the age of 17 in connection with
several carjackings.

In 2000, Friend pled guilty to one count

of aiding and abetting carjacking, 18 U.S.C. § 2119(1) (2012),
and to one count of aiding and abetting carjacking resulting in
death, 18 U.S.C. § 2119(3) (2012).
court

imposed

a

180-month

sentence

Ultimately, the district
on

Friend’s

§

2119(1)

conviction and a sentence of life imprisonment without parole on
his § 2119(3) conviction.
After multiple efforts at postconviction relief, ∗ in 2013,
exactly one year after the Supreme Court’s decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012), Friend filed with this court a
∗

Friend argued that the life-without-parole sentence that
he received as a minor violated the rule announced in Graham v.
Florida, 560 U.S. 48 (2010), that “for a juvenile offender who
did not commit homicide the Eighth Amendment forbids the
sentence of life without parole,” id. at 74.

2

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28

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U.S.C.

§

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2244

(2012)

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motion

for

second or successive § 2255 motion.

authorization

to

file

a

Friend claimed that his

life-without-parole sentence is unconstitutional under Miller,
which

held

juveniles

that

mandatory

violate

the

life-without-parole

Eighth

Amendment,

convicted of homicide offenses.

even

sentences
for

for

juveniles

See 132 S. Ct. at 2460, 2469.

We granted authorization, concluding that Miller is retroactive
for purposes of the prima facie showing required by § 2244.
re

Friend,

No.

13-292

(4th

Cir.

July

1,

2014)

In

(unpublished

order).
The
however,

district
relying

court
on

our

denied

relief

subsequent

on

Friend’s

decision

in

motion,

Johnson

v.

Ponton, 780 F.3d 219, 221, 226 (4th Cir. 2015) (holding that
Miller is not retroactively applicable to cases on collateral
review).

On appeal, Friend’s case was placed in abeyance for

the Supreme Court’s decision in Montgomery v. Louisiana, 136 S.
Ct. 718 (2016), in which the Supreme Court held that Miller
announced

a

new

substantive

constitutional

retroactive on collateral review.

rule

that

is

Accordingly, we granted a

certificate of appealability on the issue of whether Friend’s
life-without-parole sentence is unconstitutional under Miller.
In its response, the Government concedes that Friend is
entitled to resentencing in light of Miller, made retroactive to
cases

on

collateral

review

by
3

Montgomery.

We

agree

and,

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accordingly, vacate the district court’s order and remand for
proceedings consistent with this opinion.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED

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