LeBlanc v. Mathena et al
Filing
35
MEMORANDUM OPINION AND ORDER re: 24 Report and Recommendations.; 17 Motion to Dismiss. Petitioner's objections to the Magistrate Judge's Report and Recommendation (ECF No. 24) are SUSTAINED. Accordingly Respondents' Motio n to Dismiss (ECF No. 17) is DENIED. Because the state court's decision was both contrary to, and an unreasonable application of, clearly established federal law set forth in Graham v. United States, 560 U.S. 48 (2010), Mr. LeBlanc's P etition (ECF No. 1) is GRANTED. His case is REMANDED for resentencing in accordance with Graham. Mr. LeBlanc may not be sentenced to life without the possibility of parole for nonhomicide offenses he committed as a juvenile. IT IS SO ORDERED. Signed by District Judge Arenda L. Wright Allen and filed on 7/1/15. Copies distributed to all parties 7/1/15. (ldab, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
DENNIS LeBLANC,
Petitioner,
Civil Action No. 2:12cv340
RANDALL MATHENA,
Chief Warden,
Red Onion State Prison, Pound, Virginia,
and COMMONWEALTH OF VIRGINIA,
Respondents.
MEMORANDUM OPINION AND ORDER
Sentencing a child to life imprisonment without the possibility of parole,
means denial of hope; it means that good behavior and character
improvement are immaterial; it means that whatever thefuture might hold in
storefor the mind and spirit of the child, the child will remain in prisonfor
the rest ofhis or her days.
See Graham v. Florida, 560 U.S. 48, 70 (2010).
OVERVIEW
Before the Court is a Petition from Dennis LeBlanc ("Petitioner" or "Mr. LeBlanc") for a
Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (ECF No. 1), and a Motion to Dismiss
(ECF No. 17) advanced by Respondents Randall Mathena and the Commonwealth of Virginia
(collectively, "Respondents"). Mr. LeBlanc argues that his sentence of two life terms without
the possibility of parole for the nonhomicide offenses he committed as a juvenile is contrary to,
and an unreasonable application of, federal law as established by the United States Supreme
Court's holding in Graham v. Florida, 560 U.S. 48 (2010). For the following reasons, this Court
agrees. Respondent's Motion to Dismiss (ECF No. 17) is DENIED, and Mr. LeBlanc's Petition
(ECF No. 1) is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. LeBlanc was convicted by a Virginia state court of rape and abduction with intent to
defile. Mr. LeBlanc was sixteen years old when he committed these offenses. Because Mr.
LeBlanc committed these offenses in 1999, he is ineligible for parole. Va. Code Ann. § 53.1-
165.1 (2014) ("Any person sentenced to a term of incarceration for a felony offense committed
on or after January 1, 1995, shall not be eligible for parole upon that offense.").
On May 11, 2011, following the Supreme Court's ruling in Graham v. Florida, 560 U.S.
48 (2010), Mr. LeBlanc moved to vacate his sentences in Virginia state trial court, arguing that
because he was sixteen years old at the time of the offense and did not commit a homicide,
Graham renders his sentence unconstitutional under the Eighth Amendment to the United States
Constitution.
In Graham, the Supreme Court held that "[t]he Constitution prohibits the
imposition of a life without parole sentence on a juvenile offender who did not commit
homicide." 560 U.S. at 82; see also Miller v. Alabama, 132 S. Ct. 2455, 2465 (2012) (emphasis
added) (recognizing that the Graham decision imposed a "flat ban on life without parole" for
juveniles convicted of nonhomicide offenses).
After conducting an evidentiary hearing on August 9, 2011, the Virginia trial court
denied relief to Mr. LeBlanc, concluding that Virginia's Geriatric Release Provision constituted
"an appropriate mechanism" that rendered his sentence of two life terms without the possibility
of parole an "appropriate sentence" under Graham.1 Aug. 9, 2011 Hr'g Tr. at 25:14-19. In so
1Virginia's Geriatric Parole Provision provides:
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.
Va. Code Ann. § 53.1-40.01 (2014).
concluding, the state trial court referenced a Virginia Supreme Court decision—Angel v.
Commonwealth, 704 S.E.2d 386 (Va. 2011)—that held that Virginia's Geriatric Release
Provision constituted a meaningful opportunity to obtain release for juvenile offenders who did
not commit homicide, and that, therefore, sentences of life without parole for these offenders can
be construed as compliant with the dictates of Graham. 704 S.E.2d at 402 (refusing to vacate a
sentence of three life terms plus a term of years for nonhomicide offenses that the defendant
committed as a juvenile because of Virginia's Geriatric Release Provision). The trial court held
that, under Angel, the sentence Mr. LeBlanc received was appropriate and not "void ab initio."2
Aug. 9,2011 Hr'g Tr. at 25:23-24.
In justifying Mr. LeBlanc's sentence of life without the possibility of parole as
"appropriate," the trial court noted that:
[bjefore [Mr. LeBlanc] came to me, he had been convicted of carjacking,
abduction, robbery, use of a firearm in commission of a felony . . . and all
those were pending or had been resolved. This case was not only sad but it
was tragic for the woman who was raped because, as I said, she was just an
elderly lady walking down a path and the defendant raped her and abducted
her. . . . [T]he court at the time prior to sentencing had a psychosexual
evaluation done, and basically the psychologist said he was a sociopath in so
many words. So based on the totality of that, the court gave him a life
sentence.... I know it's not a pleasant thing to get a life sentence, but the last
thing the defendant told me was, Fuck you, quote/unquote twice. . . . [T]hat
was what I was dealing with then. . . . [A]nd, as I said, by the time the court
got him [for sentencing], he was nineteen years old or twenty.
Aug. 9, 2011 Hr'g Tr. at 23:14-24:18.
Mr. LeBlanc appealed the decision of the trial court to the Virginia Supreme Court. On
April 13, 2012, the Virginia Supreme Court summarily found no reversible error in the trial
court's decision.
2Void ab initio means void "from the beginning." Void ab initio, BLACK'S LAW DICTIONARY
(10th ed. 2014).
The Virginia Supreme Court's ruling read in its entirety:
Upon review of the record of this case and consideration of the argument
submitted in support of the granting of an appeal, the Court is of opinion there
is no reversible error in the judgment complained of. Accordingly, the Court
refuses the petition for appeal.
Dennis LeBlanc v. Commonwealth, Record No. 111985, Circuit Court No. CR02-1515 (Va. Apr.
13,2012).
The Supreme Court of Virginia also denied Mr. LeBlanc's timely petition for rehearing
on June 15, 2012. On June 19, 2012, Mr. LeBlanc filed the instant Petition, and the matter was
referred for disposition to a United States Magistrate Judge. In a Report and Recommendation
(ECF No. 24), the Magistrate Judge recommended granting Respondents' Motion to Dismiss and
denying the Petition and dismissing it with prejudice.
In reviewing a Report and Recommendation, this Court "may accept, reject, or modify, in
whole or in part, the findings or recommendations" made by the Magistrate Judge. 28 U.S.C. §
636(b)(1) (2009); accord Fed. R. Civ. P. 72(b)(3). To the extent a party makes specific and
timely written objections to a Magistrate Judge's findings and recommendations, this Court must
review de novo "those portions of the report ... to which objection is made." 28 U.S.C. §
636(b)(1); accord Fed. R. Civ. P. 72(b)(3).
The parties were advised of their right to file written objections to the Report and
Recommendation.
On August 1, 2013, the Court received objections from Mr. LeBlanc.
Respondents declined to respond to these objections and filed no objections of their own. The
Court ordered supplemental briefing on the matter. All briefing, the recommendations of the
Magistrate Judge, and the entire record have been considered carefully.
STANDARDS OF LAW
I. MOTION TO DISMISS
"In proceedings under § 2254, the familiar standards in Rule 12(b)(6) of the Federal
Rules of Civil Procedure apply to the government's motion to dismiss." Walker v. Kelly, 589
F.3d 127, 138 (4th Cir. 2009); see also Brooks v. Clarke, No. 3:15-CV-13, 2015 WL 1737993, at
*3 (E.D. Va. Apr. 16, 2015) (employing the Rule 12(b)(6) standard to a motion to dismiss a
habeas petition). "Thus, a motion to dismiss a § 2254 petition under Rule 12(b)(6) tests the legal
sufficiency of the petition, requiring the federal habeas court to 'assume all facts pleaded by the
§ 2254 petitioner to be true.'"3 Walker, 589 F.3d at 139 (citation omitted).
"In assessing whether the § 2254 petition states a claim for relief, the district court must
consider "the face of the petition and any attached exhibits." Id. (citation omitted). A court may
consider material from the record of the state habeas proceeding, including affidavits and
evidence presented at trial, "without having to convert the Rule 12(b)(6) motion to one for
summary judgment under Rule 56(b)." Id. "Moreover, a federal court may consider matters of
public record such as documents from prior state court proceedings in conjunction with a Rule
12(b)(6) motion." Id.
To survive a motion to dismiss, a complaint must contain sufficient factual information
"to statea claim to reliefthat is plausible on its face." Brooks, 2015 WL 1737993, at *4 (quoting
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a
plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw
on its judicial experience and common sense." Id. (quotingAshcroft v. Iqbal, 556 U.S. 662, 663-
3Ifthe Commonwealth files its Answer to the Petition and its Motion to Dismiss simultaneously,
"it technically should have filed the motion under Rule 12(c) as one for judgment on the pleadings." 589
F.3d at 139. The United States Court of Appeals for the Fourth Circuit therefore would construe "the
Commonwealth's motion as a motion under Rule 12(c) which is assessed under the same standard that
applies to a Rule 12(b)(6) motion." Id.
64 (2009)). In evaluating a Motion to Dismiss, the Court must determine whether the petitioner
"came forward with sufficient evidence to survive the Commonwealth's dispositive motion [to
dismiss] and advance his claim for a merits determination." Walker, 589 F.3d at 139.
II. PETITION FOR HABEAS RELIEF
A. Antiterrorism and Effective Death Penalty Act
The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this Court's
consideration of a state prisoner's petition for writ of habeas corpus. Richardson v. Branker, 668
F.3d 128, 138 (4th Cir. 2012). The AEDPA standard mandates that a writ of habeas corpus
"shall not be granted" for any claim that was adjudicated on the merits in a state court
proceeding unless the state court's adjudication was:
(1) "contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States"; or (2) "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (2015). "A state-
court decision is contrary to [the Supreme Court's] clearly established precedents if it applies a
rule that contradicts the governing law set forth in [the Supreme Court's] cases, or if it confronts
a set of facts that is materially indistinguishable from a decision of [the Supreme Court] but
reaches a different result." Brown v. Payton, 544 U.S. 133, 141 (2005).
Under the fundamental notions of state sovereignty, the "AEDPA restricts [the] intrusion
of state sovereignty by limiting the federal courts' power to issue a writ to exceptional
circumstances, thereby helping to ensure that state proceedings are the central process, not just a
preliminary step for a later federal habeas proceeding." Richardson, 668 F.3d at 138. This Court
is "mindful that 'state courts are the principal forum for asserting constitutional challenges to
state convictions,' that habeas corpus proceedings are a 'guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary error correction through appeal,'
and that a federal court may only issue the writ if 'there is no possibility fairminded jurists could
disagree that the state court's decision conflicts with [the Supreme Court's] precedents.'" Id. at
132 (alteration in original) (quoting Harrington v. Richter, 562 U.S. 86, 102-03 (2011)).
"In reviewing a state court's ruling on postconviction relief, we are mindful that 'a
determination on a factual issue made by a State court shall be presumed correct,' and the burden
is on the petitioner to rebut this presumption 'by clear and convincing evidence."' Lee v. Clarke,
781 F.3d 114, 122 (4th Cir. 2015), as amended (Apr. 15, 2015) (quoting Tucker v. Ozmint, 350
F.3d 433, 439 (4th Cir. 2003)). The AEDPA "demands that state court decisions be given the
benefit of the doubt," and it is error for a federal court to conduct de novo review of habeas
claims that were adjudicated on the merits by a state court. Richardson, 668 F.3d at 140-41.
However, "[e]ven in the context of federal habeas, deference does not imply abandonment or
abdication ofjudicial review, and does not by definition preclude relief." Brumfield v. Cain, No.
13-1433, 2015 WL 2473376, at *6 (U.S. June 18, 2015) (alteration in original). The Supreme
Court has emphasized that:
a habeas court must determine what arguments or theories supported or, as here,
could have supported, the state court's decision; and then it must ask whether it
is possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.
Richter, 562 U.S. at 102.
Further, the AEDPA "directs a federal habeas court to train its attention on the particular
reasons—both legal and factual—why state courts rejected a state prisoner's federal claims."
Hittson v. Chatman, No. 14-8589, 2015 WL 786705, at *1 (June 15, 2015) (Ginsburg, J.,
concurring). Importantly, "Richter makes clear that where the state court's real reasons can be
ascertained, the § 2254(d) analysis can and should be based on the actual 'arguments or theories
[that] supported ... the state court's decision.'" Id. at *2 (alteration in original).
A state's highest court may render an unexplained order or summary dismissal, denial, or
affirmance of the trial court decision without explanation. When this occurs, the lower court's
decision might be the only "reasoned state judgment rejecting [the] federal claim."
Nunnemake, 501 U.S. 797, 803 (1991).
Ylst v.
The reviewing federal court employs a rebuttable
presumption that "later unexplained orders upholding that judgment or rejecting the same claim
rest upon the same ground" as was articulated by the reasoned state judgment. Id. (discussing
what has become known as the "look through" rule, which directs reviewing federal courts to
"look through" to the last reasoned decision in the state courts); see also Hittson, 2015 WL
786705, at *2 (noting that Richter did not supersede or overrule Ylst).
B.
Graham's
Prohibition
on
Life without
Parole
for
Juvenile
Nonhomicide
Offenders
The issue before the Supreme Court of the United States in Graham was "whether the
Constitution permits a juvenile offender to be sentenced to life in prison without parole for a
nonhomicide crime." Graham, 560 U.S. at 52-53. The Supreme Court in Graham concluded
that "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile
offender who did not commit homicide." Id. at 82; Miller, 132 S. Ct. at 2465 (emphasis added)
(noting that Graham imposed a "flat ban on life without parole" for juveniles convicted of
nonhomicide offenses). The Court in Graham noted that if a state "imposes a sentence of life it
must provide [the child] with some realistic opportunity to obtain release before the end of that
term." 560 U.S. at 82 (emphasis added). Graham noted that the opportunity must also be
"meaningful" and "based on demonstrated maturity and rehabilitation." Id. at 75.
The Petitioner in Graham, Terrance Jamar Graham, pled guilty to armed burglary with
assault or battery and attempted armed robbery in a Florida state court. Id. at 53-54. He was
sixteen years old when he committed the offenses.
Id. at 53.
The trial court withheld
adjudication of guilt as to both charges and sentenced him to concurrent three year terms of
probation. Id. at 54. Terrance Graham was required to spend the first twelve months of his
probation in the county jail, and with credit for time served, he was released on June 25, 2004.
Id.
Less than six months later, he was arrested for participating in a home invasion robbery.
Id.
The trial court imposed the maximum possible punishment for the prior offenses—life
imprisonment. Id. at 57. In so doing, the trial court opined that there was no chance for
rehabilitation, stating "We can't do anything to deter you. This is the way you are going to lead
your life[.]" Id. at 57; 58. Although the sentence did not specify "without parole," the sentence
was imposed in Florida, which had abolished parole. Id. at 58. Therefore, the imposition of a
life sentence gave Terrance Graham no possibility of release unless he was granted executive
clemency. Id.
The Supreme Court concluded that Terrance Graham's sentence was unconstitutional,
holding "thatfor a juvenile offender who did notcommit homicide the Eighth Amendment of the
United States Constitution forbids the sentence of life without parole." Id. at 74. The Court
declared 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. Therefore, persons below the age of eighteen when the offense
was committed "may not be sentenced to life without parole for a nonhomicide crime." Id. at
74-75.
Because "[n]othing in Florida's laws prevented] its courts from sentencing a juvenile
nonhomicide offender to life without parole based on a subjective judgment that the defendant's
crimes demonstrate an 'irretrievably depraved character[,]'" Florida's practice was "inconsistent
with the Eighth Amendment." Id. at 76. The Supreme Court unequivocally recognized that the
Eighth Amendment "does not foreclose the possibility that persons convicted of nonhomicide
crimes committed before adulthood will remain behind bars for life[,]" but it "forbidsStatesfrom
makingthejudgment at the outset that those offenders never will be fit to reenter society." Id. at
75 (emphasis added).
ANALYSIS
I. Motion to Dismiss
The Court first addresses Respondents' Motion to Dismiss, which tests the legal
sufficiency of the Petition. See Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009). Respondents
raised two grounds upon which they seek dismissal: (1) the petition is untimely; and (2) the
petitioner's allegations are without merit and the Petition is frivolous.
First, the Magistrate Judge ruled that the Petition was timely filed. Respondents filed no
objection to this ruling. Section 2254 petitions are subject to a one-year statute of limitations
that begins to run from the latest of "the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review," or "the date on
which the constitutional right asserted was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review." 28 U.S.C. § 2244(d)(1)(A), (C).
Mr. LeBlanc's judgment became final in 2003. Therefore, his petition filed in 2012
would be untimely, unless Graham applies retroactively on collateral review and the limitations
10
period was tolled during the pendency of Mr. LeBlanc's state court motions. The Magistrate
Judge concluded that the Graham decision applies retroactively on collateral review, and under
the limitations period proscribed by 28 U.S.C. § 2244(d)(1)(C), Mr. LeBlanc's Petition was
timely filed because the limitations period began to run after Graham was decided and was tolled
during the pendency of Mr. LeBlanc's motions in the state court.4
As the Magistrate Judge recognized, the United States Court of Appeals for the Fourth
Circuit has never held in a published opinion that Graham applies retroactively on collateral
review. However, it has so held in an unpublished opinion. See In re Evans, 449 F. App'x 284
(4th Cir. 2011) (noting that "the Government properly acknowledged that in the appropriate case
Graham establishes a previously unavailable rule of constitutional law that applies retroactively
on collateral review").
Similarly, other federal circuits and this Court have concluded that Graham applies
retroactively on collateral review. See, e.g., Goins v. Smith, 556 F. App'x 434, 437 n.l (6th Cir.
2014) (unpublished) (noting that "[t]he parties do not dispute that Graham applies because it set
forth a new rule prohibiting a certain category of punishment for a class of defendants and can
therefore be raised on collateral review"); In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013)
(holding that Graham applies retroactively under one of the Teague5 exceptions); In re Sparks,
657 F.3d 258, 260-61 (5th Cir. 2011) (alteration in original) (holdingthat "Graham clearly states
a new rule of constitutional law that was not previously available," and that one of the Teague
exceptions "necessarily dictate[s] the retroactivity of Graham's holding"); United States v.
Evans, No. 2:92CR163-5, 2015 WL 2169503, at *4 (E.D. Va. May 8, 2015) (concluding that
"The timeduring which a properly filed application for [s]tate post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection." 28 U.S.C. § 2244(d)(2).
5Referring to Teague v. Lane, 489 U.S. 288 (1989).
11
Graham "announced a new rule of constitutional law retroactively applicable on collateral
review"); cf Landry v. Baskerville, No. 3:13CV367, 2014 WL 1305696, at *8 n.ll (E.D. Va.
Mar. 31, 2014) (unpublished) (noting that the Supreme Court's language in Graham "clearly
indicates the announcement of a substantive rule."). This Court concurs with and adopts the
Magistrate Judge's determination that Graham applies retroactively on collateral review.
Second, Respondents argued, in conclusory fashion, that Mr. LeBlanc's allegations are
without merit and that the Petition is frivolous. With respect to the Motion to Dismiss, the Court
need only decide whether Mr. LeBlanc "came forward with sufficient evidence to survive the
Commonwealth's dispositive motion [to dismiss] and advance his claim for a merits
determination." Walker, 589 F.3d at 139. A motion to dismiss therefore "tests the legal
sufficiency of the petition, requiring the federal habeas court to assume all facts pleaded by the §
2254 petitioner to be true." Id.
Neither party disputes that Mr. LeBlanc exhausted all available state remedies, and the
Magistrate Judge so held. Because Mr. LeBlanc's claim was adjudicated on the merits in state
court, his petition is not procedurally barred from federal review. See Ylst v. Nunnemaker, 501
U.S. 797, 803 (1991). Mr. LeBlanc is serving a sentence of two life terms without the possibility
of parole for nonhomicide offenses he committed as a child. The Supreme Court in Graham
placed a "categorical bar" or "flat ban" on such sentences. See Graham, 560 U.S. at 78-79; see
also Miller, 132 S. Ct at 2465. The state court concluded that Mr. LeBlanc's sentence was
nevertheless appropriate and not invalid from the outset. Therefore, Mr. LeBlanc has alleged
sufficient factual information to state a claim to reliefthat is plausible on its face.
12
II. Petition for Habeas Relief
Mr. LeBlanc stands before this Court serving two sentences of life without the possibility
of parole for offenses he committed at age sixteen. Like Terrance Graham's sentence, Mr.
LeBlanc's sentence does not specify "without parole," but, like Florida, Virginia has abolished
the parole system. Va. Code Ann. § 53.1-165.1; see also Angel v. Commonwealth, 704 S.E.2d
386, 401 (Va. 2011) (noting that because Virginia has abolished parole, "the effect of a life
sentence "is that [the defendant] will spend the rest of his life confined in the penitentiary").
This Court affords deference to the state court's decision. First, the Court examines the
"arguments or theories" that supported the state court's decision, and then the Court "ask[s]
whether it is possible that fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in" Graham. See Richter, 131 S. Ct. at 786. Because the Supreme
Court of Virginia denied Mr. LeBlanc's petition summarily, this Court "looks through" to the
last reasoned opinion of the state court and assumes that the higher court based its decision on
the same reasoning. See Ylst, 501 U.S. at 803; see also Brumfield v. Cain, No. 13-1433, 2015
WL 2473376, at *6 (U.S. June 18, 2015) (employing the "look through" rule). In line with
Richter, this Court's § 2254(d) analysis is based on "the actual 'arguments or theories [that]
supported ... the state court's decision.'" See Hittson, 2015 WL 786705, at *1 (June 15, 2015)
(Ginsburg, J., concurring).
In denying relief to Mr. LeBlanc, the trial court stated that Mr. LeBlanc's sentence is
"appropriate" because Virginia's Geriatric Release Provision is an "appropriate mechanism"
through which Virginia falls into compliance with the dictates of Graham. Aug. 9, 2011 Hr'g
Tr. at 25:14-19. Injustifying Mr. LeBlanc's sentence of life without the possibility of parole as
"appropriate," the trial court also noted that "by the time the court got him [for sentencing], he
13
was nineteen years old or twenty." Id. at 24:17-18. The trial court further justified the sentence
of life imprisonment by pointing to numerous pending and resolved offenses attributed to Mr.
LeBlanc, including robbery and carjacking. Id. at 23. The trial court went on to say that the
psychological reports opined that Mr. LeBlanc was "in so many words" a "sociopath." Id. at 2324. "[B]ased on the totality of that," the state court concluded that a sentence of life
imprisonment was appropriate. Id. at 24:3.
In 2011, less than a year after the Supreme Court's decision in Graham, the Supreme
Court of Virginia addressed the issue of whether Graham invalidated a defendant's sentence of
three consecutive life terms without parole for a nonhomicide offense the defendant committed
as ajuvenile. Angel, 704 S.E.2d at 401.6 The Supreme Court ofVirginia noted the issue relating
to the Graham decision had not been properly raised in the trial court, but proceeded to address
the issue, at the urging of the parties, "to provide guidance to trial courts in Virginia." Id. at n.6.
Virginia Code § 53.1-40.01 governs the possible release of geriatric prisoners, and
provides for the opportunity of conditional release to prisoners who have reached the age of sixty
or older and have served at least ten years of their sentence, or who have reached the age of
sixty-five or older and have served at least five years of their sentence. The Supreme Court of
Virginia concluded that in light of this provision, Virginia's sentencing scheme can be construed
as being in compliance with Graham. See id. at 401-02. The Virginia Supreme Court held that
the possibility of geriatric release provides a "meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation." Id. at 401. Therefore, the defendant's sentence of
three life terms without the possibility of parole was construed as constitutional.
6While there were five issues presented in Angel, the other four issues related specifically to
proceedings at Angel's trial and bearno relevance to the discussion here. See id. The petition for writof
certiorari to the Supreme Court of Virginia was summarily denied by the United States Supreme Court.
Angel v. Virginia, 132 S. Ct. 344 (2011) (denying certiorari). The reason for the denial was not
expressed, and it isunclear which of the five issues presented in the Angel decision were appealed.
14
Similarly, the trial court in Mr. LeBlanc's proceedings concluded that the Graham
decision did not invalidate Mr. LeBlanc's life sentences without the possibility of parole from
the outset or otherwise render his sentences inappropriate. As noted above, this Court may grant
Mr. LeBlanc's habeas petition if this decision is either (1) "contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States," or (2) "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This Court
focuses primarily on the first prong of the AEDPA standard because Mr. LeBlanc's arguments
concern issues of law, rather than factual determinations. See Richardson, 668 F.3d. at 138 n.9.
Affording deference to the trial court determination, including its reliance on Angel, and
allowing the trial court all benefit of doubt, this Court concludes that the state court
determination was both contrary to clearly established Federal law and involved an unreasonable
application of clearly established Federal law as determined by the Supreme Court of the United
States. Cf Williams v. Taylor, 529 U.S. 362, 384-86 (2000) (noting that both the "contrary to"
and "unreasonable application of phrases may be implicated, and the phrases are not "mutually
exclusive").
A. Contrary to Clearly Established Federal Law
First, this Court is compelled to conclude that the state court's decision was contrary to
clearly established federal law. "A state-court decision is contrary to [the Supreme Court's]
clearly established precedents if it applies a rule that contradicts the governing law set forth in
[the Supreme Court's] cases, or if it confronts a set of facts that is materially indistinguishable
from a decision of [the Supreme Court] but reaches a different result." Brown v. Payton, 544
U.S. 133, 141 (2005). The state court's denial of reliefto Mr. LeBlanc upholds a sentence of life
15
without parole for a juvenile nonhomicide offender. This contradicts the governing law set forth
by the Supreme Court in Graham, which imposes a flat ban on such sentences. See, e.g., Miller,
132S.Ct.at2465.
That Graham created a categorical bar or flat ban on imposition of a sentence of life
without the possibility of parole on juvenile nonhomicide offenders is not subject to reasonable
dispute. This flat ban has been established and recognized by the Supreme Court of the United
States. See, e.g., Miller, 132 S. Ct. at 2461 (noting that "this Court held in Graham [] that life
without parole violates the Eighth Amendment when imposed on juvenile nonhomicide
offenders); id. at 2465 (concluding that Graham imposed a "flat ban" on life without parole for
juvenile nonhomicide offenders); id. at 2466 (determining that Graham "imposed a categorical
ban on the sentence's use, in a way unprecedented for a term of imprisonment"); id. at 2468
("Graham . . . teach[es] that in imposing a State's harshest penalties, a sentencer misses too
much if he treats every child as an adult"); id. at 2470 (noting that "life without parole is
permissible for nonhomicide offenses—except, once again, for children"); id. at 2475 (Breyer, J.,
concurring) (noting that "the Eighth Amendment as interpreted in Graham forbids sentencing" a
juvenile who committed a nonhomicide offense to life imprisonment without parole); id. at 2476
(Breyer, J., concurring) ("Graham dictates a clear rule:
The only juveniles who may
constitutionally be sentenced to life without parole are those convicted of homicide offenses who
kill or intend to kill"); Graham, 560 U.S. at 74 ("This Court now holds that for a juvenile
offender who did not commit homicide the Eighth Amendment forbids the sentence of life
without parole. This 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.").
16
The flat ban on imposing a sentence of life without the possibility of parole for juvenile
nonhomicide offenders has also been recognized by United States Courts of Appeals, including
the Fourth Circuit. See, e.g., Johnson v. Ponton, 780 F.3d 219, 222 (4th Cir. 2015) (noting that
Graham
"categorically
barred
life-without-parole-sentences
for juvenile
nonhomicide
offenders"); In re Vassell, 751 F.3d 267, 269-70 (4th Cir. 2014) (emphasis in original)
(concluding that a defendant's petition for habeas relief was untimely because his right to relief
first became available after Graham, which "prohibited imposing any sentence of life without
parole—mandatory or individualized—for juveniles convicted of committing nonhomicide
offenses"); id. at 270 (recognizing that "Graham established one rule (a flat ban) for
nonhomicide offenders"); In re Sloan, 570 F. App'x. 338, 339 (4th Cir. 2014) (noting that
Graham held "that the Eighth Amendment prohibits a sentence of life without parole for any
juvenile offender [] who did not commit homicide"); accord Moore v. Biter, 725 F.3d 1184,
1191 (9th Cir. 2013) (concluding that "[t]he Supreme Court was unequivocal that for juvenile
nonhomicide offenders, Graham established a 'flat ban on life without parole.'").
The Supreme Court noted that "[e]ven if the State's judgment that Graham was
incorrigible were later corroborated by prison misbehavior or failure to mature, the sentence was
still disproportionate because thatjudgment was made at the outset." Graham, 560 U.S. at 73
(emphasis added). The Eighth Amendment "forbidfs] States from making the judgment at the
outset that" a child convicted of nonhomicide offenses "never will be fit to reenter society." Id.
at 75. However, the state court here twice made the judgment that Mr. LeBlanc would never be
fit to reenter society.
The state court first made that determination when it sentenced Mr.
LeBlanc to life without the possibility of parole in 2003. The state court again made this
determination in its decision regarding Mr. LeBlanc's petition for habeas relief. Specifically,
17
after the United State Supreme Court's holding in Graham, the state court justified its sentence
of life without parole for a nonhomicide offense by citing Mr. LeBlanc's prior bad behavior, a
study that showed that he was, "in so many words," a sociopath, and the fact that he was already
an adult by the time the court "got to him," even though the offenses that triggered his life
sentences were committed when he was a juvenile.
The Supreme Court in Graham addressed similar comments made by the sentencing
court in Terrance Graham's case. Graham, 560 U.S. at 57 (reflecting upon the trial court's
suggestion that Terrance Graham was beyond all hope of rehabilitation). The Supreme Court of
the United States forbade this kind of reasoning in Graham. See id. at 77 (recognizing that
"existing state laws, allowing the imposition of these sentences based only on a discretionary,
subjective judgment by a judge or jury that the offender is irredeemably depraved, are
insufficient to prevent the possibility that the offender will receive a life without parole sentence
for which he or she lacks the moral culpability"); see id. at 78-79 (concluding that "[a]
categorical rule avoids the risk that... a court or jury will erroneously conclude that a particular
juvenile is sufficiently culpable to deserve life without parole for a nonhomicide" offense).
Moreover, the trial court in Mr. LeBlanc's case relied improperly upon his age at
sentencing to justify the harshness of the sentence imposed for crimes he committed as a
juvenile. The age of the offender at sentencing has no bearing on the constitutionality of the
sentence imposed for offenses the offender committed as a child. See id. at 74-75 (emphasis
added) (holding that "those who were below [age eighteen] when the offense was committed
may not be sentenced to life without parole for a nonhomicide crime").
As in Graham, because Mr. LeBlanc was a juvenile nonhomicide offender, his sentence
of two life terms without the possibility of parole is unconstitutional. See Graham, 560 U.S. at
18
74-75. In light of the clear dictates of Graham, concluding otherwise would be objectively
unreasonable. Therefore, the state court's decision is contrary to the Supreme Court's clearly
established precedents. See Brown, 544 U.S. at 141 (noting that "[a] state-court decision is
contrary to [the United States Supreme Court's] clearly established precedents if it applies a rule
that contradicts the governing law set forth in [Supreme Court] cases").
Furthermore, as in Graham, because "[n]othing in [Virginiaj's laws prevents] its courts
from sentencing a juvenile nonhomicide offender to life without parole based on a subjective
judgment that the defendant's crimes demonstrate an 'irretrievably depraved character[,]'"
Virginia's practice is "inconsistent with the Eighth Amendment." 560 U.S. at 76.
B. Unreasonable Application of Clearly Established Federal Law
The trial court's decision also was an unreasonable application of clearly established
federal law. The '"unreasonable application' prong of § 2254(d)(1) permits a federal habeas
court to 'grant the writ if the state court identifies the correct governing legal principle from this
Court's decisions but unreasonably applies that principle to the facts of petitioner's case."
Wiggins v. Smith, 539 U.S. 510, 520 (2003). "In other words, a federal court may grant relief
when a state court has misapplied a 'governing legal principle' to 'a set of facts different from
those of the case in which the principle was announced.'" Id. "In order for a federal court to
find a state court's application of [Supreme Court] precedent 'unreasonable,' the state court's
decision must have been more than incorrect or erroneous." Id. "The state court's application
must have been objectively unreasonable." Id. at 520-21.
In denying Mr. LeBlanc relief, the trial court concluded that Virginia's Geriatric Release
Provision provides juveniles sentenced to life without parole for nonhomicide offenders a
meaningful opportunity for release based on demonstrated maturity and rehabilitation. In its
19
analysis, the state court relied partially upon Angel.1 Aug. 9, 2011 Hr'g Tr. at 25. The Supreme
Court of Virginia reasoned in Angel that:
[t]he [United States] Supreme Court has left it up to the states to devise methods
of allowing juvenile offenders an opportunity for release based on maturity and
rehabilitation. While the Supreme Court did not identify a specific method or
methods that would provide "meaningful opportunity" for release, the Court
clearly stated that states did not have to guarantee that the offender would be
released. Furthermore the Supreme Court did not require the states provide the
opportunity for release at any particular time related to either the offender's age
or length of incarceration.
704 S.E.2d at 402.
The Virginia Supreme Court concluded that an inmate's opportunity to apply for geriatric
release renders a sentence of life without parole for juvenile nonhomicide offenders compliant
with Graham. Id. at 401.
This theory of compliance is a misapplication of the governing legal principle of
Graham—that children are different and warrant special consideration in sentencing. This
misapplication is a basis for granting relief. See Wiggins, 539 U.S. at 520 (noting that a federal
court may grant relief where the state court misapplied a governing legal principle). It is true
that the Supreme Court left it to the states to seek compliance with Graham. However, the
method proposed by a state cannot directly contravene the foundational principles of Graham
and still pass constitutional muster. To conclude otherwise would be objectively unreasonable.
The Supreme Court has reiterated that Graham's and Roper's "foundational principle" is
that "children are constitutionally different" and warrant special consideration regarding
sentencing. Miller, 132 S. Ct. at 2458 (noting that Graham and Roper's "foundational principle"
was "that imposition of a State's most severe penalties for juvenile offenders cannot proceed as
though they were not children"); id. at 2464 ("Roper and Graham establish that children are
7Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011).
20
constitutionally different from adults for purposes of sentencing."). Of course a state is not
required to guarantee eventual freedom to all juvenile nonhomicide offenders. Just as plainly,
however, a state cannot continue to impose life without parole sentences on juvenile
nonhomicide offenders as if the flat ban on such sentences does not exist. By relying on a
geriatric release provision—a provision that by its very name was designed to be invoked by and
on behalf of the elderly—in an attempt to salvage unconstitutional sentences, the Supreme Court
of Virginia and the state trial court missed the heart of Graham—that children are, and must be
recognized by sentencing courts as, distinguishable from adult criminals. See, e.g., Graham, 560
U.S. 48,68-69. The Supreme Court of the United States teaches that:
[a]s compared to adults, juveniles have a lack of maturity and an
underdeveloped sense of responsibility; they are more vulnerable or susceptible
to negative influences and outside pressures, including peer pressure; and their
characters are not as well formed. These salient characteristics mean that it is
difficult even for expert psychologists to differentiate between the juvenile
offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption. Accordingly,
juvenile offenders cannot with reliability be classified among the worst
offenders. A juvenile is not absolved of responsibility for his actions, but his
transgression is not as morally reprehensible as that of an adult.
Id. at 68 (internal quotation marks omitted) (citations omitted).
"[T]he differences between juvenile and adult offenders are too marked and well
understood to risk allowing a youthful person to receive a sentence of life without parole for a
nonhomicide crime despite insufficient culpability." Id. at 78. Scientific studies and medical
developments affirm the differences between children and adults. See id. at 68 (noting that
"developments in psychology and brain science continue to show fundamental differences
between juvenile and adult minds"); see Miller, 132 S. Ct. at 2464 n.5 (noting that the evidence
supporting the scientific differences between children and adults has become "even stronger"
after Graham and Roper).
"[F]rom a moral standpoint it would be misguided to equate the
21
failings of a minor with those of an adult, for a greater possibility exists that a minor's character
deficiencies will be reformed." Graham, 560 U.S. at 68.
Although the Supreme Court in Miller addressed a different issue, the constitutionality of
mandatory life sentences without parole for juveniles, the Supreme Court's recognition of the
differences between adults and children is compelling and applicable to this case:
Mandatory life without parole for a juvenile precludes consideration of his
chronological age and its hallmark features—among them, immaturity,
impetuosity, and failure to appreciate risks and consequences. It prevents taking
into account the family and home environment that surrounds him—and from
which he cannot usually extricate himself—no matter how brutal or
dysfunctional. It neglects the circumstances of the . . . offense, including the
extent of his participation in the conduct and the way familial and peer pressures
may have affected him. Indeed, it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies associated with youth—for
example, his inability to deal with police officers or prosecutors (including on a
plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham,
560 U.S. at 78 ("[T]he features that distinguish juveniles from adults also put
them at a significant disadvantage in criminal proceedings"); J.D.B. v. North
Carolina, 564 U.S.
,
, 131 S. Ct. 2394, 2400-01 (2011) (discussing
children's responses to interrogation). And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the circumstances most
suggest it.
132S.Ct.at2468.
From the inception of the juvenile justice system, reformers recognized that children
ought to be treated differently within the criminal justice system. See, e.g., In re Gault, 387 U.S.
1,15 (1967) ("The early reformers were appalled by adult procedures and penalties, and by the
fact that children could be given long prison sentences and mixed in jails with hardened
criminals."). Plainly, the Supreme Court has recognized that differences between children and
adults must be taken into account when considering sentencing policies. See, e.g., Roper v.
Simmons, 543 U.S. 551, 569 (2005) (recognizing at least three meaningful differences between
22
children and adults); see also Graham, 560 U.S. 48, 68-69 (citing Roper and recognizing that
children warrant special consideration).
Similarly, the Fourth Circuit has recognized that the holdings in Miller and Graham were
rooted in the truth that exceptions are warranted for children facing sentencing.
See, e.g.,
Johnson v. Ponton, 780 F.3d 219, 221-22 (4th Cir. 2015) (recognizing that the "concern
motivating" the Supreme Court's decision in Miller was that the "sentencing scheme" employed
by the lower court "preclude[d] consideration of how children are different from adults"); id. at
222 (quoting the Supreme Court's rationale that "it is the odd legal rule that does not have some
form of exception for children"); United States v. Howard, 113 F.3d 519, 532 (4th Cir. 2014)
(holding that a district court's sentence failed to appreciate that the defendant was a juvenile
when he committed three predicate convictions); United States v. Hunter, 735 F.3d 172, 174 (4th
Cir. 2013) (noting that "children are constitutionally different from adults for purposes of
sentencing due to their diminished culpability and greater prospects for reform") (quoting Miller,
132 S. Ct. at 2464)). "Youth is a mitigating factor derive[d] 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." Howard, 113 F.3d at 532 (alteration in original)
(quoting Roper, 543 U.S. at 570).
A sentencing scheme that applies the holding of Graham in a manner that contravenes
Graham's foundational principle, that courts must account for differences between children and
adults, evinces an unreasonable application of federal law. See Wiggins, 539 U.S. at 520.
Virginia attempts to deny the unconstitutionality of this sentencing scheme by relying on its
Geriatric Release Provision. This approach does not pass constitutional muster.
23
If it can be said that Virginia's sentencing scheme treats children differently than adults,
it would be because, tragically, the scheme treats children worse. Under Virginia's current
sentencing policies, prisoners are serving sentences of life without the possibility of parole for
nonhomicide offenses that they committed as children.
Like any other prisoner in Virginia,
regardless of their age at the time of the offense, if these prisoners live to see the age of sixty or
sixty-five, they may apply for geriatric release. This treats children worse than adults. See
Graham, 560 U.S. at 70 (recognizing that life without parole for juveniles imposes a harsher
sentence on children than adults who receive the same sentence because the child will spend a
"greater percentage of his life in prison than an adult offender"). For example, a "16-year old
and a 75-year-old each sentenced to life without parole receive the same punishment in name
only." Id. "This reality cannot be ignored." Id.
In reality, children are receiving harsher sentences than adults: they are subjected to life
terms of imprisonment without the possibility of parole like adults, and they must serve a larger
percentage of their sentence than adults do before eligibility to apply for geriatric release occurs.
C.f. Kent v. United States, 383 U.S. 541, 556 (1966) (in addressing rights afforded to juveniles in
the early years of the juvenile justice system, noting that "there may be grounds for concern that
the child receives the worst of both worlds: that he gets neither the protections accorded to
adults nor the solicitous careand regenerative treatment postulated for children").
This Court is guided by the principles recognized in Graham that, as addressed above,
"all juvenile nonhomicide offenders [should be given] a chance to demonstrate maturity and
reform." Graham, 560 U.S. at 79. While a state "need not guarantee the [nonhomicide juvenile]
offender's eventual release ... it must provide him or her with some realistic opportunity to
obtain release." Id. at 82 (emphases added).
24
Mr. LeBlanc and all similarly situated juveniles lack any chance of seeking a meaningful
life, while older, more culpable prisoners may be given an opportunity to obtain freedom in ten
years or less. This "application" of Graham would not be simply incorrect or erroneous; it is
objectively unreasonable because it turns Graham on its head. See Barnes v. Joyner, 751 F.3d
229, 251 (4th Cir. 2014) (concluding that a trial court's decision was not simply incorrect or
erroneous, but was objectively unreasonable where the trial court's actions "turned [the
applicable Supreme Court precedent] on its head").
Geriatric release cannot be the type of "meaningful opportunity" for release envisioned
by the Supreme Court in Graham. See Casiano v. Comm'r ofCorrection, No. 19345, 2015 WL
3388481, at *11 (Conn. May 26, 2015) ("[W]e do not regard the juvenile's potential future
release in his or her late sixties after a half century of incarceration sufficient to escape the
rationales of Graham or Miller") (quoting State v. Null, 836 N.W.2d 41, 71 (Iowa 2013)); Bear
Cloud v. State, 334 P.3d 132, 142 (Wyo. 2014) (noting that the prospect of geriatric release does
not comport with the dictates of Graham); Null, 836 N.W.2d at 71 ("The prospect of geriatric
release, if one is to be afforded the opportunity for release at all, does not provide a 'meaningful
opportunity' to demonstrate the 'maturity and rehabilitation' required to obtain release and
reenter society as required by Graham")}
As the Supreme Court of Connecticut recognized, "[a] juvenile offender is typically put
behind bars before he has had a chance to exercise the rights and responsibilities of adulthood,
such as establishing a career, marrying, raising a family or voting." Casiano, No. 19345, 2015
WL 3388481, at *10. Even assuming that a juvenile offender does "live to be released, after a
half century of incarceration, he will have irreparably lost the opportunity to engage
This Court is unaware of anyjurisdiction in the country other than Virginia that has held thatan
opportunity for geriatric release for juvenile nonhomicide offenders serving life terms without parole
comports with the dictates of Graham.
25
meaningfully in many of these activities," and the offender "will be left with seriously
diminished prospects for his quality of life for the few years he has left." Id. Further, a juvenile
released in his or her sixties is released at a time "when the law presumes that he [or she] no
longer has productive employment prospects." Id. "[T]he offender [may] be age-qualified for
Social Security benefits without ever having had the opportunity to participate in gainful
employment." Id. (citing 42 U.S.C. § 416(1)). The juvenile's prospects for a meaningful life
"will also be diminished by the increased risk for certain diseases and disorders that arise with
more advanced age[.]"
Id.
This Court agrees with the Supreme Court of Connecticut's
reasoning that:
the United States Supreme Court viewed the concept of "life" in Miller and
Graham more broadly than biological survival; it implicitly endorsed the
notion that an individual is effectively incarcerated for "life" if he will have
no opportunity to truly reenter society or have any meaningful life outside of
prison.
Id. at *11 (holding that Graham and Miller apply to lengthy term-of-year sentences and that a
term of fifty years imprisonment without parole for a juvenile offender implicate the procedures
set forth in Miller).
The Supreme Court of Wyoming also noted that the determination of whether the
principles of Miller and Graham apply in a given case should not turn on the "niceties of
epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates."
Bear Cloud v. State, 334 P.3d 132, 142 (Wyo. 2014) (quoting Null, 836 N.W.2d at 71).9 This
Court finds the reasoning of the Supreme Courts of Iowa, Wyoming, and Connecticut persuasive.
The remote possibility of geriatric release does not provide a meaningful opportunity for release
based on demonstrated maturity and rehabilitation.
9The court in Bear Cloud also noted that the United States Sentencing Commission equates a
sentence of 470 months (39.17 years) to a life sentence. 334 P.3d at 142.
26
As a matter of law, parole and geriatric release in Virginia are different concepts,
notwithstanding some similarities. See Solem v. Helm, 463 U.S. 277, 300 (1983) (noting that
"parole and commutation are different concepts, despite some surface similarities"). Surface
similarities include that the Virginia Parole Board regulates both parole and geriatric release, and
that the release factors applicable to parole are also applied in the geriatric release process. Va.
Code. Ann. § 53.1-40.01; Va. Parole Bd. Admin. P. No. 1.226 ("Conditional Release of
Geriatric Inmates"). However, most similarities end there.
Provisions governing parole are found in a chapter entitled "Probation and Parole" in
Virginia's statutory provisions. Va. Code. Ann. § 53.1-151. The geriatric release provision is
contained in the chapter regarding "State Correctional Facilities," and in a subsection regarding
the "privileges" of prisoners.
See Va. Code. Ann. § 53.1-40.01.
Inmates who have been
identified for a first parole consideration "shall be interviewed for parole." Va. Parole Bd.
Admin. P. No. 1.201 (emphasis added). The Virginia Parole Board has discretion to deny any
petition for geriatric release "on a review of the record," without advancing to the interview
stage. Id. at No. 1.226. Additionally, unlike inmates applying for regular parole, inmates
applying for geriatric release must identify "compelling reasons" for conditional release. Id.
Further, prisoners applying for geriatric release who are serving life sentences require the
concurrence of four members of the Parole Board for a grant of conditional release. Va. Parole
Bd. Admin. P. No. 1.226 (requiring a concurrence of four members for geriatric release to
prisoners serving a life term). Prisoners applying for regular parole consideration require only
three such votes.
Va. Parole Bd. Policy Manual, sec. II, subsec. G, para. 1 (requiring
concurrence of three members). The opportunity for release under Virginia's Geriatric Release
Provision is similar to the regular parole decision process for inmates serving life sentences for
27
first degree murder. Both require concurrence of four members. Compare Va. Parole Bd.
Admin. P. No. 1.226 (requiring a concurrence of four members for any geriatric release prisoner
currently serving a life term) with Va. Parole Bd. Admin. P. No. 1.206 (requiring a concurrence
of four members for inmates serving sentences for first-degree murder).
The Magistrate Judge's Report and Recommendation focused on statistics and
probabilities which illustrate that typically, only a small percentage of geriatric release eligible
inmates are released through the provision. Although statistics may shed light on whether the
opportunity for release is realistic, this Court concludes that statistics cannot be given a
controlling effect on whether a state is in compliance with Graham. Statistics change, and what
may be reasonably viewed as "realistic" one year may not be so the next.
The Supreme Court in Graham imposed a categorical bar on a sentence of life without
the possibility of parole to prevent the "possibility that life without parole sentences will be
imposed on juvenile nonhomicide offenders[.]" Graham, 560 U.S. at 74. The Graham Court did
not address the statistics related to how often prisoners were granted executive clemency in
Florida. Instead, the Supreme Court rejected the possibility of executive clemency as a basis to
save an otherwise unconstitutional sentence because clemency is an "ad hoc exercise" that may
occur for any reason, and because parole is a "regular part of the rehabilitative process." See
Graham, 560 U.S. at 69-70 (citing Solem, 463 U.S. at 300). Although statistics are helpful, a
method that focuses too heavily on release statistics misses the mark of Graham and Solem,
which emphasized the nature of the opportunity for release, not merely the regularity of its use.
The Magistrate Judge's Report and Recommendation also noted that discerning whether
juvenile nonhomicide offenders in Virginia serving life terms will be released under Virginia's
Geriatric Release Provision at realistic or meaningful levels is impossible because no juvenile
28
under that sentencing scheme has yet reached age sixty. Compelling 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 statistics related to
geriatric release perpetuates the injustice that Graham sought to correct. By proceeding to apply
the foundational principles of Graham in evaluating the sentences that juveniles are currently
serving, this Court need not engage in speculation about what these juveniles might face in forty
or fifty years. Mr. LeBlanc is entitled to challenge the constitutionality of his sentence now. Cf.
Rowe v. Peyton, 383 F.2d 709, 719 (4th Cir. 1967) affd, 391 U.S. 54 (1968) (concluding that
"the remedy to serve the pressing need for an undelayed judicial determination of these
substantial claims of constitutional deprivations should be the traditional one in this area, habeas
corpus"). "Justice delayed for want of a procedural, remedial device over a period of many years
is, indeed, justice denied to the prisoner and, in an even larger degree, to Virginia." Id. at 715.
Under Virginia's current sentencing scheme, Graham has been rendered a judicial
nullity. Before Graham, nothing prevented Virginia state courts from imposing the sentence of
life without parole for juvenile nonhomicide offenders, and all prisoners had the same
opportunity to apply for geriatric release at age sixty. After Graham, under the state's rationale,
nothing prevents Virginia state courts from imposing the sentence of life without parole for
juvenile nonhomicide offenders, and all prisoners have the same opportunity to apply for
geriatric release. Virginia's sentencing scheme for juveniles violates the spirit and the letter of
Graham, and the state trial court's application of Graham in denying Mr. LeBlanc relief is
objectively unreasonable. See Barnes v. Joyner, 751 F.3d 229, 251 (4th Cir. 2014).
Other states have understood that Graham's flat ban on sentences of life without parole
for juveniles convicted of nonhomicide offenses compel changes that afford constitutional
29
protection (in various forms) to prisoners. See, e.g., Lawton v. State, No. SCI3-685, 2015 WL
1565725, at *1 (Fla. April 9, 2015) (noting that the categorical ban in Graham applies "in all
circumstances"); Henry v. State, No. SCI2-578, 2015 WL 1239696, at *2 (Fla. Mar. 19, 2015)
("the status of juvenile offenders warrants different considerations by the states whenever such
offenders face criminal punishment as if they are adult"); State v. Shaffer, 11 So.3d 939,942 (La.
2011) (removing the restriction on parole eligibility for a juvenile after noting that "Graham
reflects the Supreme Court's determination that juveniles are a special class of offenders
deserving of special protections otherwise not accorded adult offenders"); see also State v.
Castaneda, 842 N.W.2d 740, 759 (Neb. 2014) (noting that Nebraska enacted new legislation
post-Graham in order to afford juveniles the protections that the federal constitution requires).
In light of the foregoing analysis, "[e]ven the most skilled legal contortionist could not
interpret [the trial court's decision] in a way that sensibly comports with the Supreme Court's
crystalline pronouncements" in Graham. See United States v. Hashime, 722 F.3d 572, 574 (4th
Cir. 2013). There is no possibility that fairminded jurists could disagree that the state court's
decision conflicts with" the dictates of Graham. Therefore, this Court must grant Mr. LeBlanc's
petition. See Richter, 131 S. Ct. at 786-87.
Life without parole deprives a child of hope of restoration. Graham, 560 U.S. at 69-70.
"[T]his sentence means denial of hope; it means that good behavior and character improvement
are immaterial; it means that whatever the future might hold in store for the mind and spirit of
[the child], he [or she] will remain in prison for the rest of his [orher] days." Id. at 70.
As the Virginia Supreme Court itselfrecognized, a sentence of life in Virginia means that
children "will spend the rest of [their] li[ves] confined in the penitentiary." Angel, 704 S.E.2d at
401. Virginia's sentencing scheme forjuveniles who commit nonhomicide crimes treats children
30
worse than adults, and strips them of hope. Hope allows a child to live for an assured future
despite an imperfect past.
The Supreme Court has recognized that nonhomicide juvenile offenders serving life
sentences must be given "the opportunity to achieve maturity ofjudgment and self-recognition of
human worth and potential."
Graham, 560 U.S. at 79.
The distant and minute chance at
geriatric release at a time when the offender has no realistic opportunity to truly reenter society
or have any meaningful life outside of prison deprives the offender of hope. Without hope, these
juvenile offenders are being discarded in cages and left to abject despair rather than with any
meaningful reason to develop their human worth. This result falls far short of the hallmarks of
compassion, mercy and fairness rooted in this nation's commitment to justice.
31
CONCLUSION
Petitioner's objections to the Magistrate Judge's Report and Recommendation (ECF No.
24) are SUSTAINED. Accordingly Respondents' Motion to Dismiss (ECF No. 17) is DENIED.
Because the state court's decision was both contrary to. and an unreasonable application of.
clearly established federal law set forth in Graham v. United States, 560 U.S. 48 (2010), Mr.
LeBlanc's Petition (ECF No. 1) is GRANTED. His case is REMANDED for resentencing in
accordance with Graham. Mr. LeBlanc may not be sentenced to life without the possibility of
parole for nonhomicide offenses he committed as a juvenile.1"
IT IS SO ORDERED.
Arcndi L. Wrieht Allen
a
United States District Judge
,2015
. Virginia
Although the issue is not presently before this Court, other jurisdictions have held that Miller
and Graham apply to lengthy term-of-years sentences or aggregate sentences, and this Court agrees. See
Moore v. Biter, 725 F.3d 1184, 1192 (9th Cir. 2013) (holding that a sentence of 254 years is materially
indistinguishable from a life sentence without the possibility of parole); Casiano v. Comin'r of
Correction. No. 19345. 2015 WL 3388481. at *11 (Conn. May 26, 2015) (concluding 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 hope/"); Brown v. State, 10 N.E.3d I, 7-8 (Ind.
2014) (reducing a juvenile's sentence to eighty years after concluding that, while the trial court acted
within its discretion when it imposed a sentence of 150 years for murder, such a sentence "means denial
ofhope"); Bear Cloud v. State, 334 P.3d 132, 144 (Wyo. 2014) (holding that an aggregate sentence ofjust
over forty-five years was the de facto equivalent of a life sentence without parole); State v. Null, 836
N.W.2d 41, 72 (Iowa 2013) (holding that "Miller's principles are fully applicable to a lengthy term-ofyears sentence"); People v. Caballero, 282 P.3d 291, 296 (Cal. 2012) (holding that "sentencing ajuvenile
offender for a nonhomicide offense to a term of years with a parole eligibility date that falls outside the
juvenile offender's natural life expectancy constitutes cruel and unusual punishment in violation of the
Eighth Amendment"). However, some courts have concluded that Miller and Graham are inapplicable to
term-of-years sentences. See Bunch v. Smith. 685 F.3d 546, 552-53 (6th Cir. 2012) (concluding that even
though an aggregate sentence of eighty-nine years may be the functional equivalent of life, Graham
applied only to sentences of "life," not aggregate sentences that result in a lengthy term of years); State v.
Brown, 118 So.3d 332, 342 (La. 2013) (concluding that "nothing in Graham addresses a defendant
convicted of multiple offenses and given term of year sentences").
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?