Dennis LeBlanc v. Randall Mathena

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:12-cv-00340-AWA-LRL. [999963413]. [15-7151]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7151

DENNIS LEBLANC,
Petitioner - Appellee,
v.
RANDALL MATHENA, Chief Warden, Red Onion
Pound, Virginia; COMMONWEALTH OF VIRGINIA,

State

Prison,

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

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

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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.

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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

nonhomicide offense he committed at the age of sixteen.

a
In

light of Graham, Petitioner sought postconviction relief from
his sentence in Virginia state courts.
Petitioner

relief,

holding

that

The state courts denied

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
decisions

of

the

denying

deference

state

we

prisoners

must

accord

to

state

postconviction

court

relief,

we

nonetheless conclude that Petitioner’s state court adjudication
constituted

an

significantly,

unreasonable
Virginia

courts

application
unreasonably
3

of

Graham.

ignored

the

Most
plain

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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

Petitioner guilty of rape and abduction.

trial

court

found

Petitioner committed

the offenses on July 6, 1999, when he was sixteen years old.
The

court

sentenced

imprisonment.
Va.

Code

Petitioner

to

two

terms

of

life

Petitioner was ineligible for parole pursuant to

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

Petitioner’s life sentence invalid.

Graham rendered

In opposition, Respondents

asserted that, notwithstanding Virginia’s abolition of parole,
Petitioner’s

life

sentence

did
4

not

violate

Graham

because

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Virginia

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allows

for

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conditional

release

of

“geriatric

prisoners,” Va. Code Ann. § 53.1-40.01 (“Geriatric Release”).
At

a

hearing

on

August

9,

2011,

the

state

orally denied Petitioner’s motion to vacate.
decision,

the

trial

court

relied

on

trial

court

In rendering its

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

release”

and

in

prison

therefore

requirement. J.A. 157.
decision

to

the

a

“meaningful

complies

with

opportunity
Graham’s

for

parole

Petitioner appealed the trial court’s

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

District Court for the Eastern District of Virginia.

States

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).
filed objections to the magistrate judge’s report.

Petitioner
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
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that

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Geriatric

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Release

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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

resentencing in accordance with Graham.

the

state

court

for

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

gap

the

between

prisoners’

original

amount of time they actually served.

sentences

and

the

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
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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

package, 2

reform

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).

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The

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Virginia

Parole

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Board

is

responsible

whether to grant petitions for Geriatric Release.
40.01

directs

the

Parole

Board

to

necessary to implement the statute.

for

deciding

Section 53.1-

promulgate

regulations

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.
the

“Initial

Review”

stage,

the

Parole

Board

At

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.
deny

the

petition

majority vote.
Administrative
reasons

for

at

the

Initial

The Parole Board may

Review

stage

based

on

a

Neither the statute nor the Geriatric Release
Procedures

conditional

states

what

release,”

constitute

nor

does

“compelling

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,

Review” stage.

the

petition

moves

forward

to

the

“Assessment

As part of the Assessment Review, a Parole Board
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member

or

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designated

staff

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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
process

consider

“[a]ll

including

factors

Board

in

the

appointments

parole

and

consideration

Victim

Input.”

Id.

The Virginia Parole Board Policy Manual includes a long list of
“decision

factors”

process. J.A. 297.

to

be

considered

in

the

parole

review

These factors include: public safety, the

facts and circumstances of the offense, the length and type of
sentence, and the proposed release plan.
should

consider

including

“the

certain

The Parole Board also

characteristics

individual’s

history,

of

the

physical

offender,
and

mental

condition and character, . . . conduct, employment, education,
vocational training, and other developmental activities during
incarceration,”

prior

criminal

record,

behavior

incarcerated, and “changes in motivation and behavior.”
9

while
J.A.

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297–99.

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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.
Code Ann. § 53.1-151(C).

Va.

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
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Review stage without considering any of the “decision factors”
enumerated in the Parole Board Policy Manual.
the

parole

Parole

system,

Board

must

which

has

consider

in
the

Parole

Release

affords

discretion

to

a

deny

petition

Initial Review stage.
“identify

criteria

granting

Geriatric

must

established

for

Indeed, unlike

or

that

denying

Board

Geriatric

the

parole,

unconstrained

Release

at

the

Relatedly, in their petition, prisoners

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
five-member

notable
Parole

difference

Board

must

is

that

approve

inmates sentenced to life imprisonment.
members

of

the

Parole

Board

must

eligible prisoners.
11

four

members

Geriatric

of

Release

the
of

By contrast, only three

approve

parole

of

parole-

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II.
We

review

the

district

court’s

decision

to

grant

Petitioner’s habeas petition de novo.

Richardson v. Branker,

668

The

F.3d

128,

138

(4th

Cir.

2012).

Antiterrorism

and

Effective Death Penalty Act of 1996 (“AEDPA”), which accords
deference to final judgments of state courts, circumscribes our
review.
Cir.

Nicolas v. Att’y Gen. of Md., 820 F.3d 124, 129 (4th

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

law

habeas

questions

of

petitions
law

and

raising

fact

under

questions
Section

of

2254(d)(1).

or

mixed

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
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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,

section

27

(1st

Cir.

2254(d)(2)

2002)

applies

(“[T]he

only

to

special

prophylaxis

determinations

of

of

basic,

primary, or historical facts.” (internal quotation omitted)).
Here, the Virginia courts’ evaluation of whether Geriatric
Release

complies

questions

of

with

law,

Section 2254(d)(1).

and

Graham’s
therefore

parole
is

requirement

subject

to

implicates

review

under

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

Dir.,

U.S.

797,

803

(1991);

Grueninger

v.

Corrs., 813 F.3d 517, 525 (4th Cir. 2016).
13

Va.

Dep’t

of

“Unless a state-

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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).
reasoned

decision

adopts

or

However, “[i]f the last

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

Accordingly,

denial
the

trial

of

Petitioner’s

court

decision

motion

to

constitutes

vacate.
the

last

reasoned decision for purposes of our analysis. Nicolas, 820
F.3d

at

129.

regarding

the

The

trial

Geriatric

court

Release

relied

on

provision’s

Angel’s

reasoning

compliance

with

Graham’s parole requirement.

Accordingly, we must consider both

the

and

trial

court’s

decision

Angel

in

determining

whether

Petitioner’s state court adjudication was “contrary to, or an

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unreasonable application of” Graham--the question to which we
now turn.
III
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.

Simmons, 543 U.S. 551, 560 (2005).
punishment

is

cruel

and

historical

conceptions

to

Roper

v.

“To determine whether a

unusual,
‘the

VIII;

courts

evolving

must

look

beyond

of

decency

standards

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

committed.”
Graham

sentences

that

are

disproportionate

to

the

crime

Solem v. Helm, 463 U.S. 277, 284 (1983).
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

committed their crimes before the age of sixteen.

who

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.
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538, 545 (1987)).
responsible

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“[A]dolescents as a class are less mature and

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.
morally

Accordingly, a juvenile’s transgression is “not as

reprehensible

juvenile

offenders

as

are

that

not

of

as

an

adult.”

personally

Id.

culpable

Because
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

committed

their

offenses before the age of eighteen. 543 U.S. at 578.

Like

Thompson,
maturity

omitted).
not

the
and

propensity

is

penalty

as

Roper

to

all

Court

highlighted

underdeveloped

for

“reckless

individuals

sense

juveniles’

of

behavior.”

who

“lack

responsibility”

Id.

at

569

of
and

(citations

Roper further noted that “the character of a juvenile
well

formed

as

that

of

an

adult”

and

juveniles’

“personality traits are more transitory, less fixed.” Id. at
570.
a

As a result, “it is less supportable to conclude that even

heinous

crime

committed

by
16

a

juvenile

is

evidence

of

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irretrievably

depraved

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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.
example,

parts

continue

to

Moreover,

of

mature

the

brain

through

“[j]uveniles

are

involved
late

more

in

behavior

adolescence.”

capable

of

Id.

change

For

control
at

68.

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
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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).
the

If a juvenile is sentenced to life in prison without

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
18

“the

State[s],

in

the

first

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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

3

We 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.

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“from sentencing a juvenile nonhomicide offender to life without
parole
crimes

based

on

a

subjective

demonstrate

an

judgment

‘irretrievably

that

the

depraved

defendant’s
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,

“normal

expectation,”

least

to

463

some

U.S.

at

it

extent,

300-03.

should
when

be

parole

Because
“possible
might

parole
to

be

is

predict,

granted.”

the
at
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).
the

availability

of

To that end, Graham held that

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

offenders:

account

“An

for

offender’s

the

lesser

age
20

is

culpability
relevant

to

of
the

juvenile
Eighth

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Amendment,

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and

criminal

Pg: 21 of 64

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,
subjects

a

state

juvenile

parole

offenders

or
to

early

more

release

severe

system

that

punishments

than

their adult counterparts necessarily violates Graham.
C.
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
4

The Supreme Court decided Miller after Petitioner’s statecourt 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.”).

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must

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take

into

Filed: 11/07/2016

account

the

Pg: 22 of 64

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

established

law

court
“if

adjudication
the

state

is

court

contrary

arrives

at

to
a

clearly

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”).

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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,
relied,

Angel,

upon

correctly

recognized

each

above

a

for

nonhomicide

which

the

identified

of

the

parole
offenders

three

or

state

Graham
minimum

early

sentenced

release
to

trial
as

court

controlling

requirements
program

life

entirely

for

set

and
forth

juvenile

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.
Petitioner’s

state

court

adjudication

was

not

Accordingly,
“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.

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state

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court

Filed: 11/07/2016

adjudication

that

Pg: 24 of 64

“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,

be

the

state

court

adjudication

must

“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).

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For
state

Filed: 11/07/2016

several
court

reasons,

we

Pg: 25 of 64

agree

adjudication

with

Petitioner

constituted

an

that

his

“unreasonable

application” of Graham.
First,

Geriatric

Petitioner--or

any

Release

other

does

inmate,

not

necessarily

juvenile

or

provide

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

under this statute.” 704 S.E.2d at 402.
“decision

factors”

used

in

the

normal

release

decisions

Assuming arguendo the
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.

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Under the Geriatric Release Administrative Procedures, the
Parole Board must consider the “decision factors”--the “factors
used

in

the

Assessment
petition

normal

Review
for

parole

stage.

Geriatric

consideration
But

the

Release

process”--during

Parole
for

Board

any

may

the

deny

a

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’

8

and

the

dissent’s

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).

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characterization, Angel does not hold that the Geriatric Release
Administrative

Procedures

“decision factors.”
factors”

“apply

to

“require”

consideration

of

the

Rather, Angel states that the “decision
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

conflict

with

factors,”
the

the

plain

dissent

language

of

puts

Angel

the

into

Geriatric

direct
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,

irrational

predictions

conclusions

to

that
state

would
courts.

ascribe
See,

absurd

e.g.,

Pena

or
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
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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

Accordingly,

that

we

would

refuse

to

lead
read

to

an

Angel’s

“absurd

result”).

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

Administrative

interpreted

Procedures

“decision factors.”

as

the

requiring

Geriatric

Release

consideration

of

the

Rather, Angel unreasonably concluded that

the potential for consideration of maturity and rehabilitation
at

the

Graham’s

Assessment

Review

requirement

that

stage

is

States

adequate

afford

to

comply

juvenile

with

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.

Administrative

Procedures,

Petitioner

to

die

Indeed,

in

under

the

prison

Parole

without
28

the

Geriatric
Board

ever

could

having

Release
allow

considered

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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
requirement
obtain

Release

that

release

also

juvenile

fails

offenders

“based

on

to

comply

have

with

the

Graham’s

opportunity

demonstrated

maturity

to
and

rehabilitation” because it allows for the lifetime incarceration
of

a

juvenile

nonhomicide

offender

based

solely

heinousness or depravity of the offender’s crime.

on

the

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

9

of

the

crime.”

J.A.

178. 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)
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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
offer

is

juvenile

opportunity

for

that

the

Geriatric

nonhomicide
release

Release

offenders

traditionally

the
afforded

statistics
related
to
geriatric
release
injustice that Graham sought to correct.”
4042175, at *17.

30

program

does

not

“meaningful”
by

parole.

perpetuates
the
LeBlanc, 2015 WL

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with

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when

Graham,

analyzing

the

Angel

Pg: 31 of 64

whether

court

Geriatric

said

that

Release

“the

effect

complied
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,
“meaningful”

Geriatric

opportunity

Release

also

requirement

fails
because

to

satisfy

there

are

the
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
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will be eligible to be considered for parole, and details the
standards

and

procedures

prisoners

“to

predict,

at

applicable
least

at

to

might be granted.” Id. at 300-01.

that

some

time,”

extent,

allowing

when

parole

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

factors

it

Parole
must

Board

consider

with
in

any

guidance

deciding

whether

geriatric prisoner. See supra Part II.A.

regarding
to

what

release

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.

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authorize

the

Filed: 11/07/2016

Parole

Board

to

Pg: 33 of 64

deny

a

petition

for

Release at the Initial Review stage for any reason.

Geriatric

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.
not

afford

juvenile

Accordingly, Geriatric Release does

nonhomicide

offenders

the

“meaningful”

opportunity to obtain release to which Graham entitles them. See
Graham,
which

560
the

U.S.

at

69-70

Supreme

(holding

Court

has

that

executive

recognized

lacks

clemency,
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 wa

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
statute

factors.
nor

the

Therefore,
Geriatric

neither

Release

33

the

Geriatric

Administrative

Release

Procedures

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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

“juvenile
greater

offender

offender

because,

will

percentage

of

on
his

offender.” 560 U.S. at 70.

under

average
life

in

such

serve

a

sentence,

more

prison

years

than

an

the

and

a

adult

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

Amendment’s
Release

relative

to

adult

proportionality
subjects

proportionately

offenders

principle

juvenile

and

offenders

longer--sentences,
34

it

violate
that

the

(2)

Eighth

Geriatric

to

longer--and

was

objectively

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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).
dissent

does

not

dispute

that

Geriatric

Release

And the
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

juvenile offenders, 560 U.S. at 76.

lesser

culpability

of

Nonetheless, the dissent

maintains that Petitioner is not entitled to relief because we
fail

to

deference

afford
Section

his

state

2254(d)(1)

court

adjudication

requires,

as

the

the

level

Supreme

of

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.
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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)

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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

offenders. 560 U.S. at 77–79.

for

juvenile

nonhomicide

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”
Accordingly,

sentencing
Graham’s

determinations.

categorical

rule

560

U.S.

and

at

its

77.

minimum

requirements for parole or early release programs do not afford
state courts the same “leeway” that the “reasonableness” and
“prejudice”
dissent
“doubly”

components

misconstrues
deferential

of

Strickland

Harrington
review

to

when

permit.
it

Indeed,

affords

Petitioner’s

the

state

the
same
court

adjudication as federal courts apply in reviewing state court
decisions applying Strickland.
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Contrary
review.

to

the

Pg: 38 of 64

dissent,

we

do

not

engage

in

de

novo

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.
IV.
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.
this

single

According to Respondents and the dissent,

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.”
38

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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
Virginia

“governing

legal

unreasonably

principles,”

concluded

the

that

Supreme

Geriatric

Court

of

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

complies
affirm

juvenile

with

the

offenders

Graham’s

district

parole

court’s

worse

than

requirement.

decision

and

adult

offenders--

Accordingly,

remand

so

that

we
the

Petitioner can be resentenced in accordance with Graham and the
Eighth Amendment.
AFFIRMED

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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.

sentencing

Florida,

560

juveniles

to

nonhomicide crimes.

U.S.

48

life

in

(2010).
prison

Graham

without

forbids

parole

for

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.

court’s

2011),
opinion,

and

effectively

however,

is

overrules

it.

demonstrably

The

Virginia

every

bit

as

reasonable as the majority’s opinion in this case and should be
given deference under § 2254(d)(1).
After
Virginia

16-year-old

Beach,

LeBlanc

Virginia,

in

raped
1999,

a
he

62-year-old
was

woman

convicted

Virginia Beach Circuit Court of abduction and rape.

in

in
the

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.
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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.

a

this

State

must

provide

class

of

The Court explained that
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.”
when

LeBlanc

sought

federal

habeas
41

relief

under

28

But

U.S.C.

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§ 2254,

Filed: 11/07/2016

the

district

concluding,

contrary

Virginia’s

geriatric

Pg: 42 of 64

court

to

the

granted

release

Virginia
program

LeBlanc’s

court’s
fell

petition,

decision,

short

of

that

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

conviction review under § 2254.
of

the

governing

standard

in

court

decisions

on

post-

Under even a loose application
§ 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.
otherwise

would

See 28 U.S.C. § 2254(d)(1).

require

finding

that

the

To hold

Virginia

Supreme

Court’s decision in Angel, as well as the Virginia Beach Circuit
Court’s

decision

relying

on

it,

amounted

to

an

malfunction in the state criminal justice system.”

“extreme
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
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whether

the

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Virginia

Supreme

Pg: 43 of 64

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
sufficiency

growth
of

and

maturity,”

Virginia’s

id.

geriatric

at

73.

Analyzing

release

program

the

under

Graham, the Virginia Supreme Court reasonably concluded that the
program,
parole

which

employs

consideration

the

same

process,”

“factors
provides

used

in

the

nonhomicide

normal

juvenile

offenders with “the ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation’ required by
the

Eighth

Amendment.”

Angel,

Graham, 560 U.S. at 75).

704

S.E.2d

at

402

(quoting

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.
avoid

this

result

Indeed, the Supreme Court also sought to
by

explicitly
43

leaving

the

application

of

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Graham to the States.

Pg: 44 of 64

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

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program was adopted. ∗

Pg: 45 of 64

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.”
U.S. at 74 (emphasis added).

560

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.
After

the

Graham

decision

had

been

handed

Id.

down,

the

Virginia Supreme Court considered whether Virginia’s geriatric
release

program

satisfied

that the program did so.
specifically,

the

court

Graham’s

requirements,

and

it

See Angel, 704 S.E.2d at 402.
explained

∗

that

Virginia’s

held
More

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.

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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

determinations.

Id.

consideration

process”

apply

to

such

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.”
In

May

Id. (quoting Graham, 560 U.S. at 75).
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.

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LeBlanc

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filed

this

Pg: 47 of 64

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

petition,

but

petition,

ordering

court

dismissing

disagreed

and

LeBlanc’s

granted

the

Virginia Beach Circuit Court resentence LeBlanc.
court

concluded

contrary

to,

that

and

“the

an

state

court’s

unreasonable

the

that

the

The district

decision

application

district

was

of,

both

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.

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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

Virginia’s

geriatric

That decision concluded

release

program

provides

“appropriate mechanism” for implementing Graham.

an

The Circuit

Court relied on the Virginia Supreme Court’s opinion in Angel,
which

applied

release

program,

determining
obtain

Graham

and

which

release,

released

concluded

uses

the

provided
based

“normal”

“the

on

that

Virginia’s
parole

‘meaningful

demonstrated

geriatric

factors

opportunity
maturity

rehabilitation’ required by the Eighth Amendment.”

for
to
and

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

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rule

Doc: 46

different

Filed: 11/07/2016

from

the

Pg: 49 of 64

governing

law

set

forth

in

[Supreme

Court] cases,” or (2) that it decided this case “differently
than

[the

Supreme

indistinguishable
(2002).

Court]

[has]

facts.”

Therefore,

done

on

v.

Cone,

Bell

“a

a

run-of-the-mill

set
535

of

materially

U.S.

state-court

685,

694

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

stating the applicable legal rule.

identify

Graham

as

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.”
Circuit

Court

operated

under

the

correct

U.S.

Because the

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

survive

only

produced
if

the

a

decision

facts

of

“contrary
Graham

indistinguishable” from LeBlanc’s case.

were

Graham

can

“materially

Bell, 535 U.S. at 694.

But LeBlanc cannot make this showing either.

49

to”

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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

(emphasis

[was]

granted

added).

The

executive

Court

clemency.”

noted,

however,

Id.
that

at

57

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

society,” id. at 79.

that

he

[was]

fit

to

rejoin

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.
LeBlanc’s
before

case

Graham,

sentenced

to

differs

Virginia’s

life

Id. at 74.
materially.

geriatric

imprisonment

some

law

Unlike
affords

opportunity

Florida
a

juvenile

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

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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

(emphasis added).

statute.”

Angel,

704

S.E.2d

at

402

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

§ 2254(d)(1).

application

of”

Graham.

See

28

U.S.C.

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.

51

And to show that the state

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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

possibility for fairminded disagreement.”

law

beyond

any

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

U.S. 652, 664 (2004))).
finding

§ 2254(d)(1)

misapplication

of

a

Yarborough

v.

Alvarado,

541

Not surprisingly, the rare decision

satisfied

typically

long-established

arises

Supreme

from

Court

the

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

capital

Strickland

defense

lawyer’s

v.

Washington,

failure

to

466

consult

U.S.

668

prior

(1984),

conviction

file that was certain to contain aggravating evidence was not

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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

reasonably

normal

concluded

that

parole

factors,

LeBlanc’s

the

sentence

Circuit

did

not

Court
violate

Graham.
Indeed, it strains credulity to conclude that the Circuit
Court’s application of Graham was “so lacking in justification”
that

it

fell

disagreement.”

“beyond

any

possibility

Harrington, 562 U.S. at 103.

for

fairminded

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
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problem with state parole systems that allow for release only
later in life.
Amendment

Indeed, the Court emphasized that “[t]he Eighth

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.

categorical

against

rule

life

Rather, in adopting “[a]

without

parole

for

juvenile

nonhomicide offenders,” id. at 79, Graham declined to address
what

characteristics

“meaningful.”
frequently

a

The
parole

render

Court

a

did

board

parole

not

must

or

dictate,
meet

release
for

regarding

program

example,
a

how

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.
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Given Graham’s leeway

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to

procedures

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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

specificity.

unreasonable

requires

considering

the

rule’s

The more general the rule, the more leeway courts

have

in

reaching

outcomes

This

is

for

reason.

good

in

case-by-case

Federal

courts

determinations”).
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;

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•

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

granted.”

to

some

extent,

when

[geriatric

release]

Solem v. Helm, 463 U.S. 277, 301 (1983).

might

be

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

possibility for fairminded disagreement.”

law

beyond

any

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

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Supreme

justices

Court

definition of “fairminded jurists.”

failed

to

meet

the

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
parole

similarly

reforms

situated

apply

only

to

to

him.

felony

Given

that

offenders

Virginia’s

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
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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.
scrutiny

of

the

Even if the majority’s rigorous, de novo

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

including

“‘the

“certain”

characteristics

individual’s

history,

of

the

physical

offender,

and

mental

condition and character, . . . conduct, employment, education,
vocational training, and other developmental activities during
incarceration,’

prior

criminal

record,

behavior

incarcerated, and ‘changes in motivation and behavior.’”
at 9-10 (emphasis added).

while
Ante

Saying that these factors do not

account for maturity and rehabilitation flaunts reason.

But

more importantly, the Virginia Supreme Court’s conclusion that
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Virginia law requires considerations of “normal parole factors”
such as rehabilitation and maturity is one of state law and thus
is

binding

Virginia

on
law

this

court.

requires

And

once

it

consideration

is

understood

that

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
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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,
application.

regardless

of

what

is

presented

in

the

This argument, however, reads into Graham far more

than the case actually holds.

Graham does not dictate parole

board procedures and decisionmaking.

60

And, more particularly, it

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limit
it

the

requires

opportunity

for

Pg: 61 of 64

permissible
that

release

the

factors

juvenile

based

on

for

denying

offender

“demonstrated

be

release.
given

maturity

an
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
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decision on that application.

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That aggressive reading of Graham

would, I think, surprise the Supreme Court that decided it.

But

more

the

importantly,

it

certainly

was

not

unreasonable

for

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 termof-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

expectation.”

would
Ante

be
at

“the
31.

exception,
This

ground

rather
for

than

attacking

the
the

Virginia Supreme Court can rest only on wild speculation, as no
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juvenile

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offender

has

yet

been

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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

fairminded

that

its

error

disagreement.”

was

“beyond

See

White,

(quoting Harrington, 562 U.S. at 103).

63

any
134

possibility
S.

Ct.

at

for
1702

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*

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*

*

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

dismiss the petition.

64

with

instructions

to