Xavier Pinckney v. Harold Clarke
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:15-cv-00276-AWA-RJK Copies to all parties and the district court/agency. .. [16-7372]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
XAVIER JAMMAL PINCKNEY,
Petitioner - Appellee,
HAROLD W. CLARKE, Director of the Virginia Department of Corrections,
Respondent – Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:15−cv−00276−AWA−RJK)
Argued: May 10, 2017
Decided: June 22, 2017
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Motz and Judge Agee joined.
ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant. Leslie Joy Suson, THOMPSON HINE
LLP, Atlanta, Georgia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellant. Eric N. Heyer, Washington, D.C., J. A. Schneider, THOMPSON
HINE LLP, Atlanta, Georgia; Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk,
Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
The Director of the Virginia Department of Corrections appeals the district court’s
grant of Xavier Pinckney’s petition under 28 U.S.C. § 2254 for a writ of habeas corpus.
The district court granted the writ because it found that the state trial court’s application
of the governing legal principles in Miller v. Alabama, 132 S. Ct. 2455 (2012),
constituted an unreasonable application of clearly established federal law as determined
in Miller and then clarified by Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In
particular, the district court held that the state trial court failed to sufficiently consider
Pinckney’s status as a juvenile and its attendant characteristics before sentencing him to
life imprisonment without parole for murdering two people when he was 17. Because the
district court granted relief on an unexhausted claim but otherwise correctly rejected the
claim properly before it, we vacate the portion of the district court’s judgment granting
relief, affirm the portion denying relief, and remand with instructions to dismiss
On December 19, 2008, Connor Smith came home to find his older brother James
Smith dead on the sofa. Police officers subsequently found Jean Smith, Connor and
James’s mother, dead in the master bedroom. James and Jean each had gunshot wounds
to the head, James’s coming at close range. The investigation led to Pinckney, who
confessed to breaking into the home, shooting the Smiths, and stealing several items.
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Following a bench trial, a judge of the Circuit Court of Prince William County,
Virginia, found Pinckney guilty of two counts of capital murder in violation of Virginia
Code sections 18.2-31(4) and 18.2-31(7), one count of robbery in violation of
section 18.2-58, and three counts of use of a firearm in the commission of those felonies
in violation of section 18.2-53.1. The trial court would later reconsider this ruling and
find Pinckney guilty of two more counts of capital murder in violation of sections 18.231(4) and 18.2-31(8). The court ordered that a presentence report be prepared and set a
date for sentencing.
Pinckney moved to continue his sentencing in order to gather and present
mitigation evidence prepared by Dr. Mills, a mental health expert who had evaluated him.
Pinckney argued under section 16.1-272 that the court had discretion to impose a
sentence less than life imprisonment and that the mitigation evidence would assist in that
determination. The Commonwealth opposed any continuance, contending that the court
was required to impose a sentence of life imprisonment without parole for the capital
murder convictions. The trial court granted the continuance without explicitly deciding
whether it had discretion to deviate from a sentence of life imprisonment without parole.
Characterizing the evaluation as “medical evidence,” the court said that “in fairness to
[Pinckney] and in fairness to the process, [Pinckney] should have the opportunity to
present whatever evidence he thinks is necessary.” J.A. 326–27.
At Pinckney’s sentencing hearing, the trial court noted that it had received and
reviewed the presentence report and Dr. Mills’s psychological report. After hearing
victim impact testimony from Connor Smith and his father Richard Smith and hearing
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from Pinckney, the court explained its sentencing decision with respect to the capital
There’s nothing I can do to make it right. There’s nothing I can do
that is the right thing to do in this case. This is a tragic case. It’s not an
overstatement, I don’t think, to call it a tragic case.
It’s not a mishap, Mr. Pinckney, it’s murder. You killed two people.
And while I read all of the victim impact statements and considered them
and considered the testimony here, I think nothing is really as compelling
as the victim impact statement, reiterated to some extent by the testimony
of Mr. Rick Smith, who talked about the real life effect of the loss of these
people on the immediate family.
The things we don’t think about, things like having to move out of
the neighborhood, a ten year old making new friends, a child graduating
from college without her mother there.
And I looked at the presentence report and I tried to find some
reason for this and you know there isn’t one because I look at your
upbringing, I look at the way you were raised, and I think your mother did
everything she could. You have siblings who have never been in trouble.
You have a father who, while he wasn’t there all the time, certainly was
there part of the time and wasn’t a malignant influence on you.
You had had some experience in the juvenile court system. You had
had, I don’t know if you would call it the benefit of probation, but you had
certainly experienced probation, some mentors.
And you killed these people to avoid a juvenile conviction for
burglary, which might have meant 30 days in detention and maybe a
suspended commitment. It is just almost incomprehensible and, as I
And I considered the presentence report and I considered the
psychological evaluation and one of the reasons that I think this case is so
awful is because anytime a life is taken it’s terrible. These were two
extraordinary people you killed and when you killed them, you took their
lives and you took your own future.
And I think the appropriate sentence in this case on the capital
murder charges is to sentence you to life without parole.
In addition to the sentence of life imprisonment without parole, the trial court
sentenced Pinckney to an additional 18 years of imprisonment for the remaining felonies.
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The Court of Appeals of Virginia affirmed the trial court’s ruling and the Supreme Court
of Virginia refused Pinckney’s petition for appeal. The Supreme Court decided Miller
four days later, and then in September 2012, the Supreme Court of Virginia denied
Pinckney’s petition for rehearing. Pinckney then turned to state habeas corpus remedies.
Pinckney filed a petition for a writ of habeas corpus in the Circuit Court of Prince
William County, Virginia. Contrary to his position at sentencing, Pinckney argued that
the trial court “was required under Virginia state law to sentence him to life in prison
without the possibility of parole.” J.A. 428. As such, the trial court could not “consider
any mitigating factors.” J.A. 428. Pinckney’s sole claim was that Miller rendered his
sentence of mandatory life imprisonment without parole unconstitutional and that he was
“entitled to a new sentencing hearing” which complied with Miller. J.A. 444. Pinckney
did not argue in the alternative that if the trial court did have discretion to impose a
sentence less than life imprisonment without parole, its consideration of the evidence was
still insufficient to satisfy Miller’s requirements. Instead, Pinckney devoted most of his
petition to arguing that Miller, decided over two years after his sentencing hearing, had
In his motion to dismiss, the Warden of the Red Onion State Prison argued that the
trial court had discretion to impose a sentence less than life imprisonment without parole.
Moreover, the Warden concluded that the trial court complied with Miller by “impos[ing]
a sentence which took account of Pinckney’s age, the circumstances of the crime, his
criminal history, and his mitigating evidence.” J.A. 456. In his response, Pinckney
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continued to argue that the trial court was required to impose a sentence of life
imprisonment without parole and again failed to make any specific argument regarding
whether the trial court’s conduct nevertheless complied with Miller.
The state habeas court—with the trial-court judge presiding—dismissed
Pinckney’s petition. The court recognized that Miller “announced a new rule of law
governing sentencing of juveniles convicted of capital murder,” but found that it did not
present any retroactivity issues as defined in Teague v. Lane, 489 U.S. 288 (1989),
because the Supreme Court decided Miller before Pinckney’s conviction became final for
purposes of Teague’s retroactivity analysis. J.A. 480. The court then surveyed Miller,
understanding it to require that a sentencing court “‘follow a certain process—
considering an offender’s youth and attendant characteristics—before imposing a
particular penalty,’ life without parole,” and that a sentencing court “take into account
how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” J.A. 480 (quoting Miller, 132 S. Ct. at 2469,
Turning to Virginia law, the court concluded that “[a] juvenile defendant in
Virginia is not subject to a sentence of ‘mandatory life without parole’ as was the case in
Miller.” J.A. 482. The court based that conclusion on two grounds. First, it found it
“clear that when [the Virginia] legislature intends to bar a court from suspending
execution of a sentence, it fixes a ‘mandatory minimum’ sentence in the statute.” J.A.
481. Because the sentence for capital murder “is ‘death’ or ‘imprisonment for life,’ or, if
the defendant was a juvenile at the time of the offense, ‘imprisonment for life,’” rather
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than a sentence that includes the words “mandatory minimum,” nothing precluded the
court from exercising its discretion to “suspen[d] . . . all or part of the life sentences.”
J.A. 481 (quoting Va. Code Ann. § 18.2-10(a)). Second, it found that Virginia law
provided “a circuit court sentencing a juvenile indicted as an adult” with “wide discretion
to impose a range of sentencing alternatives.” J.A. 481 (citing Va. Code Ann. § 16.1-272
(specifying sentencing options when a juvenile indicted as an adult is found guilty,
including that “the court shall fix the sentence without the intervention of a jury”); Va.
Code Ann. § 19.2-303 (authorizing a sentencing court to “suspend imposition of sentence
or suspend the sentence in whole or part” after conviction)). Accordingly, the habeas
court found that the trial court “had the statutory authority to suspend all or part of
Pinckney’s life sentence in light of mitigating evidence, including the defendant’s age.”
Finally, the habeas judge examined her own conduct as the trial judge, noting that
she had “concluded, consistent with Pinckney’s argument [before the trial court] that
[she] had the authority ‘to fix a sentence short of life in prison.’” J.A. 482. As the trial
judge, she “review[ed] the presentence report and [took] account of all the mitigating
evidence Pinckney had marshaled.”
Then she “did exactly what Miller
requires: [she] imposed a sentence which took account of Pinckney’s age, the
circumstances of the crime, his criminal history, and his mitigating evidence.” J.A. 482.
“Having taken all those mitigating factors into account, [she] simply declined to exercise
[her] discretion to commute or suspend the sentence in light of all the evidence in
Pinckney’s case.” J.A. 482–83.
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Pinckney petitioned the Supreme Court of Virginia for appeal. As before, his
petition focused on the trial court’s purported lack of discretion to impose a sentence
other than life imprisonment without parole and made no alternative argument as to the
trial court’s compliance with Miller or the sufficiency of its consideration of mitigating
evidence. After Pinckney submitted his petition, the Supreme Court of Virginia held that
section 19.2-303 granted trial courts the authority to “suspend part or all of the life
sentence imposed for a Class 1 felony conviction,” meaning that capital murder “does not
impose a mandatory minimum sentence” as described in Miller.
Commonwealth, 763 S.E.2d 823, 824, 826 (Va. 2014) (analyzing Virginia law as it stood
in 2000), vacated on other grounds, 136 S. Ct. 1358 (2016) (remanding for further
consideration in light of Montgomery), and aff’d, 795 S.E.2d 705, 711 (Va. 2017)
(reaffirming previous holding that section 19.2-303 provides discretion to suspend part or
all of a life sentence imposed for a Class 1 felony conviction). In March 2015, the
Supreme Court of Virginia refused Pinckney’s petition for appeal. After exhausting his
state remedies, Pinckney turned to the federal habeas corpus process.
In his memorandum in support of his § 2254 petition, Pinckney made the same
lone argument that he made before all the state courts—that the trial court had no
discretion to impose a sentence less than life imprisonment without parole and thus
necessarily “did not exercise any discretion to consider mitigating factors . . . because,
from the [trial court’s] view, it had no such discretion to exercise.” J.A. 564. The
magistrate judge recommended that Pinckney’s petition be denied. In particular, the
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magistrate judge found that “the decision of the [state] habeas court about the extent of a
Virginia court’s authority under Virginia law when sentencing a juvenile convicted of
capital murder constitutes a state court decision on a question of state law outside the
province of a federal habeas court.” J.A. 623. Furthermore, notwithstanding Pinckney’s
failure to “argu[e] about whether the factual record supports [the state habeas court’s]
conclusion” that the trial court complied with Miller’s requirement to take into account
his youth and attendant characteristics, the magistrate judge reviewed the trial court’s
conduct and concluded that the state habeas court “did not unreasonably apply this aspect
of Miller’s holding or base its decision upon an unreasonable determination of the facts.”
Pinckney objected to three of the magistrate judge’s conclusions: (1) a federal
court must defer to a state habeas court’s conclusions and findings instead of conducting
de novo review; (2) the state habeas court correctly “concluded that the Virginia
sentencing statutes allowed the trial court discretion to impose a sentence less than life
without parole”; and (3) the state habeas court “reasonably determined that the trial court
understood, at the time of sentencing, that it possessed” discretion in sentencing
Pinckney. J.A. 633–34. Pinckney did not object to the magistrate judge’s conclusion
about the trial court’s compliance with Miller’s requirement to take into account his
youth and its attendant characteristics.
The Supreme Court decided Montgomery on the same day that Pinckney filed his
objections. Afterwards, noting that Montgomery “expanded the holding of Miller,” the
district court ordered the parties to submit supplemental briefing on Montgomery’s
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“possible applicability” and “[t]he sufficiency of the trial court’s consideration of Mr.
Pinckney’s youth at sentencing, viewed in light of the Supreme Court’s decisions in”
Miller and Montgomery. J.A. 659. In his supplemental brief, Pinckney argued for the
first time that the trial court’s consideration of mitigation evidence was insufficient.
The district court adopted in part and overruled in part the magistrate judge’s
report and recommendation and granted Pinckney’s petition. In particular, the court
overruled Pinckney’s first and third objections. It sustained, however, Pinckney’s second
objection by holding that “[i]n light of Montgomery’s clarification of the process required
by Miller before a juvenile homicide offender can be sentenced to life imprisonment
without parole, . . . the trial court in this case clearly failed to make the constitutionally
required individualized determination.” J.A. 712. The district court outlined the trial
court’s purported error as follows:
First, the trial court gave no indication that it was guided by the
fundamental principle “require[d] before sentencing a juvenile to life
without parole,” specifically, “‘how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in
prison.’” Montgomery, 136 S. Ct. at 733 (quoting Miller, 132 S. Ct. at
2469). Second, the trial court failed to consider whether Mr. Pinckney’s
crime reflected “‘irreparable corruption’” (thereby permitting application of
a life sentence), as opposed to “‘unfortunate yet transient immaturity.’” Id.
at 734 (quoting Miller, 132 S. Ct. at 2469).
J.A. 714 (alteration in original).
The district court “remanded for resentencing in accordance with the principles
and standards enunciated in Miller.” J.A. 719. The Director secured a temporary stay of
the district court’s order, and this appeal followed.
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We address in turn whether the district court chose a proper ground upon which to
base its grant of relief and whether any other part of Pinckney’s petition has merit. Our
review of the district court’s decision is de novo. Bennett v. Stirling, 842 F.3d 319, 322
(4th Cir. 2016). The way in which a federal habeas court must review the decision of a
state court is as follows:
Under Section 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a federal court may not
grant a state prisoner’s habeas petition unless the state court’s adjudication
of the prisoner’s claim was legally or factually unreasonable. See 28
U.S.C. § 2254(d); Pub. L. No. 104–132, § 104, 110 Stat. 1214, 1218–19
(codified at 28 U.S.C. § 2254). More precisely, Section 2254(d)(1) allows
relief if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined
by the Supreme Court.” § 2254(d)(1). . . . Section 2254(d)(2), in turn,
permits relief where the state court’s decision “was based on an
unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” § 2254(d)(2). A state court’s factual
determinations are presumed correct, and the petitioner must rebut this
presumption by clear and convincing evidence. § 2254(e)(1).
Bennett, 842 F.3d at 322.
In examining the state habeas proceedings, we, as the district court did, “look
through” the Supreme Court of Virginia’s summary refusal of Pinckney’s petition for
appeal and evaluate the circuit court’s habeas order, which is the last “reasoned decision”
from a state court. Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015).
The Director says that Pinckney never presented to any Virginia court a claim
about the sufficiency of the trial court’s consideration of his age-related characteristics, a
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failure which should have precluded the district court from granting relief on such a
claim. We agree.
“A habeas petitioner is generally barred from obtaining federal habeas review of a
claim if he failed to exhaust the claim in state court.” Morva v. Zook, 821 F.3d 517, 532
(4th Cir. 2016) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “To satisfy his
burden, the petitioner must show that both the operative facts and the controlling legal
principles were presented to the state court.” Gordon v. Braxton, 780 F.3d 196, 201 (4th
Cir. 2015) (internal quotation marks and alteration omitted). For example, “it is not
enough to make a general appeal to a constitutional guarantee as broad as due process to
present the ‘substance’ of such a claim to a state court.” Gray v. Netherland, 518 U.S.
152, 163 (1996).
Pinckney says that he presented a claim about the sufficiency of the trial court’s
consideration of his age-related characteristics to the state habeas court when he wrote in
his brief to that court that “Miller requires that a judge must consider mitigating qualities
of youth.” Appellee’s Br. at 13 (quoting J.A. 444). But placed in context, that clause is
the start of a sentence which continues: “and because the trial court had no such
discretion to consider such factors in sentencing Petitioner to life without parole in this
case, Mr. Pinckney is entitled to a new sentencing hearing and other such relief as would
be consistent with the Miller rule.” J.A. 444. And that sentence is the concluding
sentence in the argument section of Pinckney’s brief, which is otherwise devoted entirely
to explaining Miller and arguing that Miller had retroactive effect. Pinckney made no
argument in his brief as to whether, if the trial court did have discretion to impose a
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sentence less than life imprisonment without parole, its consideration of the evidence was
still insufficient to satisfy Miller’s requirements.
Pinckney also contends that his fair presentment of a sufficiency claim is reflected
in a sentence from the Warden’s motion to dismiss which reads: “[The trial court]
imposed a sentence which took account of Pinckney’s age, the circumstances of the
crime, his criminal history, and his mitigating evidence.” Appellee’s Br. at 13 (quoting
J.A. 456). But once again, context is key. That statement comes in the last paragraph of
the Warden’s argument section, which is otherwise devoted exclusively to retroactivity
and whether the trial court had discretion to impose a sentence other than life
imprisonment without parole.
Finally, Pinckney points to the state habeas court’s pronouncement that the trial
court “did exactly what Miller requires: it imposed a sentence which took account of
Pinckney’s age, the circumstances of the crime, his criminal history, and his mitigating
evidence.” Appellee’s Br. at 14 (quoting J.A. 482). But that statement came in the
context of explaining that the trial court had discretion to impose a sentence less than life
imprisonment without parole. It’s telling that even after the state habeas court made that
remark, Pinckney failed in his petition to the Supreme Court of Virginia to make an
argument about the sufficiency of the trial court’s consideration of his youth and
Putting all of this together, Pinckney exhausted his sufficiency claim only if: (1)
his citations to Miller and requests for a sentencing hearing consistent with Miller, and
(2) the Warden’s and the state habeas court’s passing references to the sufficiency of the
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trial court’s consideration of the evidence are enough for us to conclude that Pinckney
presented the operative facts and the controlling legal principles for the claim. In making
this determination we must keep in mind that Miller has two holdings: (1) “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without possibility
of parole for juvenile offenders,” and (2) a sentencing court must “take into account how
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Miller, 132 S. Ct. at 2469. Pinckney never presented an
argument as to the latter holding, and we reject his contention that he demonstrated
exhaustion by citing to a case that supports multiple claims and using conclusory,
sweeping language to describe the relief requested under that case.
Although Pinckney does not cite the case, in Jones v. Sussex I State Prison, we
held that a pro se petitioner had fairly presented his double jeopardy claim to Virginia
state courts on direct appeal by citing to a Virginia case that dealt exclusively with
federal double jeopardy law. 591 F.3d 707, 713 (4th Cir. 2010). Other factors that
weighed in favor of finding exhaustion of the claim included petitioner’s presentation of
a fact pattern that Virginia courts had “regularly considered appropriate for double
jeopardy analysis,” petitioner’s “clear focus” on double jeopardy in the argument sections
of his briefs, and the state’s recognition of and opposition to the claim in its state-court
brief. Id. at 713–14. Finally, responding to the state’s “technical argument” that the
petitioner failed to include “double jeopardy language specifically in his assignments of
error on direct appeal,” we reasoned that “even assuming that a petitioner only exhausts
‘assigned’ errors, [petitioner’s] assignment of a sufficiency of evidence error fairly
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presented his double jeopardy claim” because Virginia “has regularly treated sufficiency
of the evidence and double jeopardy interchangeably in this context.” Id. at 714–15.
Jones informs our analysis, but it’s too different to control it.
As in Jones,
Pinckney cited to the right case (Miller), but that’s where the similarities end. Pinckney
offered no sufficiency argument whatsoever in his briefs (and thus no fact pattern), the
Warden neither recognized nor opposed a sufficiency claim, and there’s no evidence that
the Virginia state courts conflate or treat interchangeably Miller’s two holdings. More on
point are cases where a petitioner initially proceeded on one theory and then attempted to
switch, even subtly, to a substantively different but related theory. Those cases are in
contrast to Jones, where the petitioner consistently advanced what was in substance a
double jeopardy claim.
In Smith v. Quarterman, for example, the petitioner argued in his state habeas
petition “that trial counsel denied him effective assistance of counsel during the
punishment phase because they failed to adequately investigate his history, when such
historical information was essential in the preparation of a biopsychosocial assessment by
an expert in the area of mitigation.” 515 F.3d 392, 400 (5th Cir. 2008) (alteration
omitted). “The state habeas court specifically ruled on trial counsel’s decision not to
conduct a professional psychiatric evaluation and to elicit testimony from a mitigation
expert.” Id. at 401. Then, in his federal habeas petition, the petitioner argued “that trial
counsel should have investigated a possible temporary insanity defense, sought prison
records suggesting a nonviolent disposition during incarceration, and interviewed [his]
relatives with the intent that they testify in the punishment phase.” Id. The Fifth Circuit
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said that “[t]he two petitions assert[ed] similar arguments only to the extent that both
raise[d] an issue of ineffective assistance of counsel.” Id. Thus, the petitioner failed to
exhaust the claim in his federal petition because he “changed the focus of his federal
claim to substantive areas not previously raised in state court.” Id. at 402.
And in Wooten v. Kirkland, the Ninth Circuit noted that it “has concluded that a
petitioner has ‘fairly presented’ a claim not named in a petition if it is ‘sufficiently
related’ to an exhausted claim.” 540 F.3d 1019, 1025 (9th Cir. 2008). In that circuit,
“[c]laims are ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by
raising one claim, the petition clearly implies another error,” but the “exception does not
apply when language in a petition for review indicates a petitioner’s ‘strategic choice’ not
to present an issue for review.” Id. Applying these principles, the court held that the
petitioner’s cumulative error claim was not exhausted because though the petitioner
“recited three out of the four alleged substantive errors in his brief to the California
Supreme Court,” he “specified that he included those errors in order to exhaust them for
the purpose of bringing a federal habeas petition.” Id. at 1026. That he did so while
“omitt[ing] the cumulative error claim confirms that the California Supreme Court had no
reason to conclude that [petitioner] also believed that there was cumulative error,” and
“suggest[ed] a strategic choice not to present” that claim. Id. at 1025–26.
This case is closer to Smith and Wooten than Jones. Whether the trial court had
discretion at sentencing and whether it sufficiently considered Pinckney’s youth and
attendant characteristics are “similar arguments only to the extent that both” implicate
Miller. See Smith, 515 F.3d at 401. That Pinckney repeatedly declined opportunities to
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raise the sufficiency claim while consistently raising the claim about discretion “suggests
a strategic choice not to present” the sufficiency claim. Wooten, 540 F.3d at 1025.
Putting the isolated statements that Pinckney points to back in context, it becomes clear
that he “changed the focus of his federal claim to substantive areas not previously raised
in state court.” Smith, 515 F.3d at 402; see also Wagner v. Smith, 581 F.3d 410, 416 (6th
Cir. 2009) (refusing to read language from a brief “in a vacuum” in order to determine
whether petitioner exhausted claims, and instead insisting on placing it in proper context).
In sum, Pinckney failed to place a Virginia court on notice of a Miller claim
regarding the sufficiency of the trial court’s consideration of his youth and its attendant
characteristics. As such, he failed to exhaust that claim in state court and the district
court erred by basing its grant of relief upon it. *
Having established that the district court erred by granting habeas relief on an
unexhausted claim, the next question is whether any other part of Pinckney’s petition has
merit. The answer is no.
Pinckney’s objection to the magistrate judge’s conclusion that a federal court must
defer to a state habeas court’s conclusions and findings instead of conducting de novo
review is baseless, and the district court correctly rejected it. Deference, as opposed to de
Because we resolve this issue on exhaustion grounds, we do not reach the
Director’s alternative argument that the district court erred by measuring the trial court’s
conduct against a Supreme Court case (Montgomery) which postdates the culmination of
Pinckney’s state habeas process.
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novo review, is precisely what § 2254(d) requires.
See Bennett, 842 F.3d at 322.
Relatedly, Pinckney says that the fact that the same judge presided over his trial and state
habeas proceedings somehow rendered the state habeas proceedings defective. Once
again, there is no merit to that argument. See Schriro v. Landrigan, 550 U.S. 465, 476
(2007) (noting that postconviction judge, who was also the sentencing judge, was “ideally
situated” to make findings concerning sentencing).
That leaves Pinckney with his Miller claim that the trial court had no discretion to
impose a sentence less than life imprisonment without parole. That’s the one claim that
Pinckney exhausted, and the district court correctly rejected it.
“[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v.
Cooke, 562 U.S. 216, 219 (2011) (internal quotation marks omitted). Whether a state
sentencing statute is mandatory or instead allows for judicial discretion in setting the
punishment is a question of state law. Miller, 132 S. Ct. at 2462 n.2. Thus, the validity
of the state habeas court’s finding that the trial court had discretion at sentencing is
beside the point. A federal habeas court cannot hear Pinckney’s claim because it’s a
claim about an error of state law.
For the reasons given, we vacate the portion of the district court’s judgment
granting relief, affirm the portion denying relief, and remand with instructions to dismiss
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH INSTRUCTIONS
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