Shermaine Johnson v. Henry Ponton , 780 F.3d 219 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7824
SHERMAINE ALI JOHNSON,
Petitioner - Appellant,
v.
HENRY PONTON,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:13-cv-00404-JRS)
Argued: October 29, 2014 Decided: March 5, 2015
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.
ARGUED: John Longstreth, K&L GATES LLP, Washington, D.C., for
Appellant. Alice Theresa Armstrong, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Charles R. Mills, Noam A. Kutler, Eric T. Mitzenmacher,
K&L GATES LLP, Washington, D.C., for Appellant. Mark R.
Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.
DUNCAN, Circuit Judge:
Petitioner-Appellant Shermaine Ali Johnson appeals the
district court’s dismissal of his habeas petition under 28
U.S.C. § 2254, challenging his sentence of life imprisonment
without parole. He argues that the rule announced in Miller v.
Alabama, 132 S. Ct. 2455 (2012), is retroactively applicable to
him on collateral review. Miller held that imposing mandatory
life imprisonment without the possibility of parole for juvenile
homicide offenders--i.e., imposing that sentence without any
individualized consideration of their status as juveniles--
violates the Eighth Amendment. For the reasons that follow, we
conclude that the Miller rule is not retroactively applicable to
cases on collateral review. We therefore affirm. 1
I.
The facts pertinent to this appeal are as follows:
Johnson was convicted of the capital murder and
rape of Hope Hall in 1998. Johnson was sixteen at the
1
By order dated December 16, 2014, we placed this case in
abeyance pending the Supreme Court’s decision in Toca v.
Louisiana, No. 14-6381, cert. granted, 135 S. Ct. 781 (Dec. 12,
2014). The Court granted certiorari in that case to address, in
part, the question of Miller’s retroactivity. See id. at 781.
On February 3, 2015, the Clerk of the Supreme Court entered an
order dismissing the writ of certiorari granted in Toca pursuant
to the parties’ stipulation to dismissal. In light of the
Supreme Court’s dismissal of Toca, we entered an order lifting
the stay of this case on February 11, 2015.
2
time of the offense, but was sentenced by a jury to
death. [Prior to that conviction, Johnson had also
been convicted of the rapes of two other women.] In
2001, the Supreme Court of Virginia partially granted
Johnson a writ of habeas corpus based on his trial
counsel’s failure to request a particular jury
instruction. On remand, a properly instructed, second
jury also imposed a sentence of death. . . . [T]he
Supreme Court of Virginia affirmed Johnson’s
sentence . . . .
[In 2005, Johnson] sought review from the Supreme
Court [of the United States], which remanded Johnson’s
case in light of its decision in Roper v. Simmons, 543
U.S. 551, 568 (2005) (“A majority of States have
rejected the imposition of the death penalty on
juvenile offenders under 18, and we now hold this is
required by the Eighth Amendment.”). Pursuant to
Virginia Code sections 17.1-313(D)(2) and 53.1-151,
the Supreme Court of Virginia commuted Johnson’s
sentence to life without the possibility of parole.
In commuting Johnson’s sentence, the Virginia Supreme
Court did not hold or order a rehearing.
Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068, at *1 (E.D.
Va. Oct. 16, 2013) (footnote omitted). Johnson’s conviction and
sentence “became final on September 7, 2005, which was the last
date on which he could have sought direct review by the Supreme
Court.” Id. at *3; see generally 28 U.S.C. § 2244(d)(1)(A).
Roughly seven years later, in June 2012, the Supreme Court
decided Miller. The Court held that a mandatory, life-without-
the-possibility-of-parole sentence imposed on a homicide
offender who was a juvenile at the time of the offense violates
the Eighth Amendment. The concern motivating the Court’s
decision was that such a sentencing scheme precludes
consideration of “how children are different” from adults.
3
Miller, 132 S. Ct. at 2469. The Court noted that “it is the odd
legal rule that does not have some form of exception for
children,” id. at 2470, and cited its decisions in Roper, 543
U.S. at 572–73, which categorically barred the death penalty for
juveniles, and Graham v. Florida, 560 U.S. 48, 82 (2010), which
categorically barred life-without-parole sentences for juvenile
nonhomicide offenders. Unlike in Roper and Graham, however, the
Miller Court did “not categorically bar a penalty for a class of
offenders or type of crime.” Miller, 132 S. Ct. at 2471.
Rather, the Court “mandate[d] only that a sentencer follow a
certain process--considering an offender’s youth and attendant
characteristics--before imposing a particular penalty.” Id.Just under one year later, in June 2013, Johnson sought
collateral review of his sentence by filing a petition pursuant
to 28 U.S.C. § 2254. Johnson argued that his sentence violates
the Eighth Amendment because Miller applies retroactively on
collateral review. He requested that the district court vacate
his sentence and order a new sentence consistent with Miller.
The district court found that Johnson’s claim was justiciable
and properly exhausted, but untimely. The court explained that
“a petitioner has only one year from the time his state-court
conviction becomes final in which to apply for a writ of habeas
corpus,” unless, as relevant here, “the constitutional right
asserted by the petitioner is ‘newly recognized by the Supreme
4
Court and made retroactively applicable to cases on collateral
review.’” Johnson, 2013 WL 5663068, at *2 (quoting 28 U.S.C.
§ 2244(d)(1)(C)). The court found that the Supreme Court had
not made the Miller rule retroactive, and therefore dismissed
Johnson’s petition as untimely. The court, however, granted a
certificate of appealability “as to the specific issue regarding
whether the new constitutional rule announced in Miller is
retroactively applicable to cases on collateral review.” J.A.
96. This appeal followed.
II.
Before turning to the question of the Miller rule’s
retroactivity, we must first address a threshold jurisdictional
question. Respondent-Appellee Henry Ponton (the “Warden”)
contends that Johnson’s claim is nonjusticiable as moot because,
under Virginia’s three-time offender law, even if we invalidate
his sentence under Miller, Johnson would still be parole
ineligible. 2 Johnson counters that constitutional challenges to
2
The Warden also argues that, under Jones v. Commonwealth,
No. 131385, 2014 WL 5490609 (Va. Oct. 31, 2014), Johnson’s
sentence was not mandatory and Miller is therefore inapplicable.
Jones held that life-without-parole sentencing schemes in
Virginia are not mandatory because Va. Code Ann. § 19.2-303gives trial courts the authority to “suspend part or all of the
life sentence imposed for a Class 1 felony conviction.” Id. at
*1. However, as will be discussed further below, Miller held
unconstitutional life-without-parole sentences imposed upon
(Continued)
5
sentences currently being served are not moot, and we agree.
Justiciability is a question of law that we review de novo. See
Green v. City of Raleigh, 523 F.3d 293, 298 (4th Cir. 2008).
That review, however, is largely circumscribed by Supreme Court
precedent.
The Supreme Court held in Walker v. Wainwright, 390 U.S.
335 (1968) (per curiam), that a habeas petition is not moot
where, if successful, the petitioner would not be released
because he would be subject to another sentence. See id. at 337(“It is immaterial that another prison term might still await
[the petitioner] even if he should successfully establish the
unconstitutionality of his present imprisonment.”). This
reasoning applies even where the same sentence might await a
successful habeas petitioner due to other convictions. See
Mancusi v. Stubbs, 408 U.S. 204, 205–06 (1972). These cases
establish that a person “confined under a sentence from which he
has not been unconditionally released . . . can validly contest
[that sentence] in federal court.” Adamson v. Lewis, 955 F.2d
614, 618 (9th Cir. 1992). Applying this principle to the facts
juvenile homicide offenders without consideration of the
offenders’ youth. Because the commutation of Johnson’s sentence
from death to life imprisonment without parole did not involve
any process for considering his youth, Miller is not
inapplicable to Johnson on this ground.
6
before us, we conclude that Johnson’s petition is justiciable
because he is currently serving the sentence he challenges.
III.
Finding Johnson’s appeal justiciable, we turn to the
question whether the rule announced in Miller is retroactively
applicable on collateral review. Before addressing Johnson’s
arguments, we provide an overview of the circumstances under
which new rules of constitutional law apply retroactively.
A.
In general, “new constitutional rules of criminal procedure
will not be applicable to those cases which have become final
before the new rules are announced.” 3 Teague v. Lane, 489 U.S.
3The Supreme Court has observed that “[a]pplication of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality
which is essential to the operation of our criminal justice
system. Without finality, the criminal law is deprived of much
of its deterrent effect.” Teague, 489 U.S. at 309. Conversely,
the Court has held that new rules must be applied to “cases
pending on direct review,” because failing to do so would
“violate[] basic norms of constitutional adjudication.”
Griffith v. Kentucky, 479 U.S. 314, 322 (1987). Therefore,
framing the retroactivity analysis is the tension between
applying a new rule to all defendants, whether they present
challenges on direct or collateral review, and preserving the
finality that stabilizes the criminal justice system. The
Supreme Court resolves that tension by drawing the line between
cases challenging convictions or sentences that are not yet
final--which are thus brought as appeals as-of-right on direct
review, and those challenging convictions or sentences that have
already become final--which are thus brought collaterally
(Continued)
7
288, 310 (1989). However, a rule may apply retroactively on
collateral review if “the Supreme Court has itself held that the
rule is retroactive, or [if] ‘the Court’s holdings logically
permit no other conclusion than that the rule is retroactive.’”
San-Miguel v. Dove, 291 F.3d 257, 260 (4th Cir. 2002) (citation
omitted) (quoting Tyler v. Cain, 533 U.S. 656, 669 (2001)
(O’Connor, J., concurring)). Where the Supreme Court has not
expressly made a rule retroactive through a holding, the Court’s
holdings logically prescribe the retroactivity of a rule where
the rule falls into one of the two exceptions identified in
Teague: (1) “the rule is substantive” rather than procedural,
or (2) “the rule is a ‘watershed rul[e] of criminal procedure’
implicating the fundamental fairness and accuracy of the
criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416
(2007) (alteration in original) (quoting Saffle v. Parks, 494
U.S. 484, 495 (1990)); see also Teague, 489 U.S. at 307.
A new rule is substantive if it “prohibit[s] a certain
category of punishment for a class of defendants because of
through a more discretionary appeals process. Where courts have
discretion to decline to hear a challenge to a conviction or
sentence, finality concerns generally trump the considerations
that compel a different result on direct review. We proceed
under the Supreme Court’s guidance that new rules generally do
not apply retroactively on collateral review and discuss the
exceptions to that principle below.
8
their status or offense.” Penry v. Lynaugh, 492 U.S. 302, 330
(1989), abrogated on other grounds by Atkins v. Virginia, 536
U.S. 304 (2002). A watershed rule of criminal procedure is one
that “requires the observance of ‘those procedures that . . .
are implicit in the concept of ordered liberty.’” Teague, 489
U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 693
(1971) (Harlan, J., concurring in the judgment)). The
watershed-rule exception is “extremely narrow.” Schriro v.
Summerlin, 542 U.S. 348, 352 (2004). Indeed, the Supreme Court
has never found a new procedural rule to be “watershed” despite
the fact that it has considered the question fourteen times.
See Jennifer H. Berman, Comment, Padilla v. Kentucky: Overcoming
Teague’s “Watershed” Exception to Non-Retroactivity, 15 U. Pa.
J. Const. L. 667, 685 (2012). The Court’s statements that the
right to counsel in felony prosecutions, guaranteed by Gideon v.
Wainwright, might qualify as a watershed rule reveal how rare
watershed rules are. See, e.g., Beard v. Banks, 542 U.S. 406,
417 (2004).
B.
With these exceptions in mind, we turn to Johnson’s
arguments that the rule announced in Miller applies
9
retroactively. 4 He first contends that the Miller rule is
retroactively applicable because the Supreme Court made the rule
retroactive by applying it in Miller’s companion case, Jackson
v. Hobbs. Alternatively, Johnson argues that the rule applies
retroactively under each Teague exception because it is a
substantive rule of criminal law or, alternatively, a watershed
rule of criminal procedure. We address Johnson’s two arguments
in turn.
1.
Johnson first argues that the Supreme Court’s application
of the Miller rule to Miller’s companion case, Jackson, shows
that “the Court already has decided that the new rule will apply
retroactively.” Appellant’s Br. at 10. The Warden responds
that an express holding that a rule is retroactive, rather than
mere application of the rule, is required to establish
retroactivity, and the Court’s application of the rule to
Jackson did not amount to an express holding. We agree with the
Warden.
4
A threshold question for retroactivity is whether the rule
in question constituted a “new rule” when announced. See
Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013). Once it
is established that the rule in question is a “new rule,”
retroactivity analysis proceeds to the question whether the rule
is retroactively applicable on collateral review. Because the
parties stipulate that Miller announced a new rule, we assume
without deciding that it did so, and proceed directly to the
retroactivity question.
10
We observed in San-Miguel v. Dove that the Supreme Court
does not establish a rule’s retroactivity except through a
holding to that effect. See 291 F.3d at 260. We derived this
principle from Tyler v. Cain, in which Justice O’Connor,
concurring in the judgment, explained that, where a petitioner
relies on a “single case” to establish retroactivity, the
Supreme Court in that case must have “expressly . . . held the
new rule to be retroactive on collateral review and applied the
rule to that case.” 533 U.S. at 668 (O’Connor, J., concurring)
(emphasis added). Because an express holding as to
retroactivity is required for a single Supreme Court case to
establish retroactivity, the Court’s mere application of a new
rule to a case on collateral review is insufficient. And
because Miller’s holding concerned only the life-without-parole
sentencing process of juvenile homicide offenders, and not the
retroactivity of the rule it announced, the Court’s application
of that rule to Jackson did not render it retroactive.
The Supreme Court has also demonstrated the principle that
mere application of a new rule to a case on collateral review is
itself insufficient to establish retroactivity. In Padilla v.
Kentucky, 559 U.S. 356 (2010), the Court announced a new rule--
that counsel is ineffective where she fails to “inform her
client whether his plea carries a risk of deportation,” id. at
374--and applied it to the case at bar, which presented a
11
challenge on collateral review, see id. at 359–60. Though
without a companion case, Padilla is analogous to Miller and
Jackson together in two ways. First, Padilla announced a new
rule and applied that rule to a case on collateral review. And
second, its holding did not mention or concern retroactivity.
Three years later, the Supreme Court held that the Padilla rule
does not apply retroactively on collateral review. See Chaidez
v. United States, 133 S. Ct. 1103, 1113 (2013). Chaidez shows
that the mere application of the Padilla rule in Padilla,
without a holding as to retroactivity, was not enough to require
application of that rule to other cases on collateral review.
Similarly, in light of that example, we conclude that the Miller
Court’s application of the rule in Jackson was not enough to
establish the rule’s retroactivity.
2.
Johnson next argues that we should find Miller retroactive
under both Teague exceptions. He maintains that the Miller rule
is substantive because it held unconstitutional a type of
sentence as a matter of substantive Eighth Amendment law.
Alternatively, Johnson submits that Miller announced a watershed
rule of criminal procedure. The Warden responds that Miller
announced a procedural rule because it did not categorically bar
a particular punishment for a class of offenders, and that the
rule is not watershed but rather an outgrowth of the Supreme
12
Court’s prior precedents. For the reasons that follow, we agree
with the Warden.
a.
The Supreme Court was clear in Miller that it was
announcing a procedural, rather than a substantive, rule. As we
discussed above, a new rule of criminal law is substantive, and
therefore qualifies for the first Teague exception, if it
“prohibit[s] a certain category of punishment for a class of
defendants because of their status or offense.” Penry, 492 U.S.
at 330. Miller expressly does not do so. The Court noted that
its holding does “not foreclose a sentencer’s ability” to
sentence a juvenile homicide offender to life without parole.
Miller, 132 S. Ct. at 2469. Rather, it prohibits sentencers
imposing that sentence on such offenders from “proceed[ing] as
though they were not children,” id. at 2458 (emphasis added), by
requiring the sentencer to “take into account how children are
different,” id. at 2469. Because only a “certain process--
considering an offender’s youth and attendant characteristics--
before imposing a particular penalty,” id. at 2471, is required
after Miller, and because life without parole may still be
imposed on juveniles so long as that process is carried out,
Miller announced a procedural rule, and cannot qualify for the
Teague exception for substantive rules.
13
b.
Nor can the Miller rule qualify for Teague’s second
exception. As we noted above, the Supreme Court “has repeatedly
emphasized the rarity of new bedrock rules of procedure.”
United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001).
Against that background, the Miller rule is scarcely a strong
contender to be the first to qualify for this exception. The
Supreme Court has instructed that a new rule of criminal
procedure that “qualifies under [the second Teague] exception
must . . . ‘alter our understanding of the bedrock procedural
elements’ essential to the fairness of a proceeding.” Sawyer v.
Smith, 497 U.S. 227, 242 (1990) (quoting Teague, 489 U.S. at
311). The Miller rule does not alter our understanding of such
procedural elements essential to fair proceedings because, as
the Court noted in Miller, its decision “flow[ed]
straightforwardly from [its] precedents.” Miller, 132 S. Ct. at
2471. “[S]pecifically, the principle of Roper, Graham, and
. . . individualized sentencing cases that youth matters for
purposes of meting out the law’s most serious punishments” gave
rise to the result in Miller. Id. As such, the procedural rule
announced in Miller is not watershed and therefore does not
qualify for retroactivity under Teague’s second exception, as we
have been given to understand it.
14
IV.
We therefore hold that the Supreme Court has not held the
Miller rule retroactively applicable, and that the Court’s
holdings do not dictate retroactivity because the rule is
neither substantive nor a watershed rule of criminal procedure.
In so deciding, we join the Eleventh Circuit. We also note that
our holding is consistent with that of the only other circuit
court panel to have answered the question of Miller’s
retroactivity. See Craig v. Cain, No. 12-30035, 2013 WL 69128(5th Cir. Jan. 4, 2013) (per curiam) (unpublished).
The Eleventh Circuit held in In re Morgan, 713 F.3d 1365(11th Cir. 2013), that “the decision in Miller has not been made
retroactive on collateral review” because (1) “the Supreme Court
has not held that Miller is retroactive[],” id. at 1367, and (2)
“Miller changed the procedure by which a sentencer may impose a
sentence of life without parole on a minor,” but it did not
create a substantive rule prohibiting “a certain category of
punishment for a class of defendants because of their status or
offense,” id. at 1368 (emphasis added). The court concluded
that, because the Miller rule is not retroactive, it could not
furnish a basis for granting an application for leave to file a
successive habeas motion. See id. at 1367–68.
Likewise, a panel of the Fifth Circuit, in its nonbinding
opinion, denied a motion to reconsider, under Miller, a previous
15
denial of a request for a certificate of appealability, on the
ground that “Miller does not satisfy the test for
retroactivity.” Craig, 2013 WL 69128, at *2. 5 The panel
reasoned that Miller “does not categorically bar all sentences
of life imprisonment for juveniles,” and therefore does not
qualify for the first Teague exception, and it “is an outgrowth
of the Court’s prior decisions,” and as such, “does not qualify
as a ‘watershed rule[] of criminal procedure.’” Id. (internal
quotation mark omitted). 6
5
The Fifth Circuit found, in another nonbinding opinion,
that a petitioner had made a prima facie showing that the Miller
rule is retroactive. See In re Simpson, 555 F. App’x 369, 371
(5th Cir. 2014) (per curiam) (unpublished). On that basis, the
court granted the petitioner’s motion to file a successive
habeas petition under 28 U.S.C. § 2255(h). In so doing,
however, the court stated that it was not “resolv[ing] the
ultimate issue of the retroactivity of Miller” and explained
that a “‘prima facie showing’ is ‘simply a sufficient showing of
possible merit to warrant a fuller exploration by the district
court.’” Id. (quoting Reyes-Requena v. United States, 243 F.3d
893, 899 (5th Cir. 2001)).
6
We note that the trend has differed among state supreme
courts. Johnson points to decisions of the high courts of eight
states that have held Miller retroactive. See People v. Davis,
6 N.E.3d 709 (Ill. 2014); State v. Ragland, 836 N.W.2d 107 (Iowa
2013); Diatchenko v. Dist. Attorney, 1 N.E.3d 270 (Mass. 2013);
Jones v. State, 122 So.3d 698 (Miss. 2013); State v. Mantich,
842 N.W.2d 716 (Neb. 2014); In re New Hampshire, 103 A.3d 227(N.H. 2014); Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App.
2014); State v. Mares, 335 P.3d 487 (Wyo. 2014). These courts
have reasoned that the Miller rule is substantive because,
though it requires a new process, the need for the process
arises from a “substantive change in the law that prohibits
mandatory life-without-parole sentencing.” Ragland, 836 N.W.2d
at 115; see also Diatchenko, 1 N.E.3d at 281. However, although
(Continued)
16
V.
For the foregoing reasons, the district court’s dismissal
of Johnson’s habeas petition is
AFFIRMED.
these state courts purport to reason through Teague, that case
binds only the federal courts. The Supreme Court held in
Danforth v. Minnesota that Teague “does not in any way limit the
authority of a state court . . . to provide a remedy for a
violation that is deemed ‘nonretroactive’ under Teague.” 552
U.S. 264, 282 (2008). As we, unlike state courts, are obliged
to take Miller’s express limitations to heart, we conclude that
Miller is not retroactively applicable on collateral review.
17