Jason Clem v. Leslie Fleming , 664 F. App'x 272 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6682
JASON CLEM,
Petitioner – Appellant,
v.
LESLIE FLEMING, Warden, Keen Mountain Correctional Center,
Respondent – Appellee.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:13-cv-00319-SGW-RSB)
Argued: September 20, 2016 Decided: October 19, 2016
Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion. Senior
Judge Davis wrote a separate concurring opinion.
ARGUED: Amy Lynn DeLine, SIDLEY AUSTIN LLP, Washington, D.C.,
for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON
BRIEF: Guy S. Neal, Matthew J. Warren, SIDLEY AUSTIN LLP,
Washington, D.C., for Appellant. Mark R. Herring, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Petitioner Jason Clem appeals the district court’s
dismissal of his authorized successive habeas petition under
28 U.S.C. § 2254, challenging his sentence of life imprisonment
without parole. He argues that the Virginia statute under which
he was sentenced is unconstitutional because it mandates life
imprisonment without parole for a juvenile convicted of capital
murder in violation of Miller v. Alabama, 132 S. Ct. 2455, 2469
(2012). We vacate the order of the district court and remand
with instructions to hold in abeyance for the reasons that
follow and as provided herein.
I.
A.
On March 8, 2004, 16-year-old Clem packed a knapsack
containing knives and a hammer and set off to the restaurant
where he worked. Upon arrival, Clem hit his employer Robert
Lacy, Jr., on the head with the hammer and proceeded to stab him
several times. Clem fled after taking money from the register
and the surveillance tape. Lacy died as a result of Clem’s
attack.
B.
Following his indictment for capital murder, Clem stood
trial in the Rockingham County Circuit Court in Virginia. On
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May 12, 2005, a jury found him guilty of capital murder. At the
time of his conviction, Virginia law provided that the penalty
for capital murder was “death, if the person so convicted was
18 years of age or older at the time of the offense . . . , or
imprisonment for life and . . . a fine of not more than
$100,000.” Va. Code § 18.2-10(a) (2005). The Virginia circuit
judge instructed the jury it could impose a sentence of life, or
life with a fine of up to $100,000. The jury returned the
maximum sentence for a juvenile convicted of capital murder--
life imprisonment and a fine of $100,000. The circuit judge
granted Clem’s motion for a presentence report and sentencing
hearing, which included evidence about Clem’s tumultuous
upbringing and history of mental illness.
At Clem’s sentencing, the circuit judge noted that he had
“read the presentence report . . . and also considered all of
the evidence in the nature of aggravation or mitigation in the
case” but found “no reason to deviate from the jury verdict.”
J.A. 392. The circuit judge adopted the jury’s verdict,
sentencing Clem to life imprisonment without parole and a fine
of $100,000. Clem appealed his conviction through the Virginia
courts, and the Supreme Court of Virginia denied his petition
for direct appeal on September 21, 2006. Clem then filed an
unsuccessful state habeas petition in 2007 arguing, inter alia,
that sentencing a juvenile to life imprisonment without parole
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was cruel and unusual punishment. Both the Rockingham County
Circuit Court and the Supreme Court of Virginia dismissed Clem’s
petitions with regard to this claim, finding he was procedurally
barred because he had failed to raise the claim on direct
appeal. In 2009, the United States District Court for the
Western District of Virginia rejected Clem’s first federal
habeas petition pursuant to 28 U.S.C. § 2254, which raised
essentially the same claims as his state habeas petition.
II.
Roughly seven years after Clem’s conviction, the U.S.
Supreme Court held that the Eighth Amendment prohibits a
mandatory life sentence without parole when the convicted person
was a juvenile at the time of the offense. Miller, 132 S. Ct.
at 2469. Miller requires that “a judge or jury . . . have the
opportunity to consider mitigating circumstances,” including “an
offender’s youth and attendant characteristics” before
sentencing a juvenile to life imprisonment without parole. Id.
at 2475, 2471. Clem filed this authorized successive federal
habeas petition to seek relief under Miller.
Respondent moved the district court to dismiss on three
alternate grounds: (1) Miller was not retroactive; (2) Clem
failed to exhaust his state remedies; and (3) the Virginia
circuit court judge had comported with Miller’s requirements at
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Clem’s sentencing. The district court assumed, without
deciding, that Miller retroactively applied to cases on
collateral review and found that Clem was excused from
exhausting state remedies because there was no state corrective
process available to him. However, the district court concluded
that the Virginia circuit judge had in fact considered
mitigating circumstances consistent with Miller’s requirements
and dismissed Clem’s petition. This appeal followed.
III.
During the pendency of Clem’s instant appeal from federal
district court, the U.S. Supreme Court held that Miller
announced a substantive rule and, therefore, was retroactive.
Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016). The
parties renew the remaining claims on appeal. We review the
district court’s dismissal of a habeas petition de novo. Gordon
v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015).
A.
Clem argues that Virginia’s capital murder statute violates
Miller because the only sentencing option available to the judge
was life imprisonment without parole. Respondent argues that
Virginia’s capital murder sentencing statute is not mandatory
but part of a larger statutory scheme that affords a trial judge
discretion to “suspend imposition of [a] sentence or suspend the
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sentence in whole or part.” Va. Code § 19.2-303 (2005).
However, before reviewing the merits, we first consider
Respondent’s threshold argument that Clem must exhaust his state
remedies.
B.
It is undisputed that Clem has not exhausted his state
remedies, as he has not raised his Miller claim in state court.
Although generally a state prisoner must exhaust available state
court remedies before filing a federal habeas petition, there is
an exception when exhaustion would be futile because the state
provides no remedy. Ham v. North Carolina, 471 F.2d 406, 407
(4th Cir. 1973). Virginia imposes a strict statute of
limitations for habeas petitions. A habeas petition challenging
a criminal sentence must be filed “within one year from
. . . final disposition of the direct appeal in state court.”
Va. Code § 8.01-654(A)(2). Accordingly, Clem would have had to
file a petition seeking any state post-conviction remedies
before September 21, 2007. The Supreme Court of Virginia has
noted that the statute of limitations “contains no exception
allowing a petition to be filed after the expiration of these
limitations periods.” Hines v. Kuplinski, 591 S.E.2d 692, 693
(Va. 2004). The district court assumed without deciding that
Clem would be excused from exhausting his state remedies because
there was no state corrective process available to him.
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However, after the district court dismissed Clem’s petition, the
Supreme Court of Virginia reviewed a challenge to the same
sentencing statute at issue here several years after the
petitioner would have been time-barred from filing a habeas
petition. See Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014),
vacated, 136 S. Ct. 1358 (2016).
In Jones, the petitioner, relying on Miller, filed a motion
to vacate his life without parole sentence twelve years after
pleading guilty to capital murder and other charges. Id.
at 824. Though the Supreme Court of Virginia assumed without
deciding that Miller was retroactive, the U.S. Supreme Court
vacated Jones, remanding to that court “for further
consideration in light of Montgomery.” Jones v. Virginia,
136 S. Ct. 1358 (2016). The Supreme Court of Virginia reheard
Jones one week before oral argument in this case.
Although failure to exhaust state remedies does not
automatically “deprive an appellate court of jurisdiction to
consider the merits of a habeas corpus” petition, comity
dictates a “strong presumption in favor of requiring the
prisoner to pursue his available state remedies.” Granberry v.
Greer, 481 U.S. 129, 131 (1987). Moreover, we generally resolve
doubts as to whether an issue has been presented to a state
court against exhaustion. Durkin v. Davis, 538 F.2d 1037, 1041–
42 (4th Cir. 1976). Particularly here, where the state’s
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highest court may soon issue a decision that could affect, if
not resolve, the issue of exhaustion, the prudent course of
action is to stay this case pending resolution of Jones. ∗
Accordingly, we vacate the order of the district court and
remand the case with instructions to hold this action in
abeyance pending the Supreme Court of Virginia’s disposition of
Jones. Depending on the outcome in Jones, we leave it to the
district court to decide, in the first instance, whether Clem
has an available state remedy that he must first exhaust.
∗Respondent maintains that there is another reason why Clem
has not exhausted his state remedies. In Mueller v. Murray the
Supreme Court of Virginia considered a death row prisoner’s
argument that a new U.S. Supreme Court decision, Simmons v.
South Carolina, 512 U.S. 154 (1994), should apply retroactively
to his case. The Supreme Court of Virginia ultimately rejected
this claim because it found that Simmons did “not fall within
either Teague [v. Lane] exception.” 478 S.E.2d 542, 549 (Va.
1996). Here, however, the U.S. Supreme Court has held that
“Miller announced a substantive rule of constitutional law,”
Montgomery, 136 S. Ct. at 735, and therefore this case fits
within an exception to non-retroactivity under Teague v. Lane,
489 U.S. 288, 311 (1989). By implication, Respondent argues
that because the Supreme Court of Virginia suggested it would
consider Teague exceptions to be retroactively applicable for
state habeas petitions, Clem could file his petition in state
court. However, because Mueller was decided before Virginia
enacted its habeas statute of limitations and has never been
cited in a published decision by a Virginia court for the
proposition that a new constitutional rule could overcome the
procedural bar of Va. Code § 8.01-654(A), we decline to rely on
this line of reasoning today.
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IV.
For the foregoing reasons, the judgment of the district
court is
VACATED AND REMANDED.
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DAVIS, Senior Circuit Judge, concurring:
I join the per curiam opinion of the Court. This appeal,
and the exhaustion issue it presents, comes to us in a rather
convoluted posture: namely, after an opaque remand, a classic
“GVR” (petition “granted, vacated and remanded”) by the Supreme
Court of the United States, of Jones v. Commonwealth, 763 S.E.2d
823 (Va. 2014), vacated, 136 S. Ct. 1358 (2016). In that case,
the Supreme Court of Virginia held, unanimously and
unambiguously, that “a Class 1 felony [including, as in Jones, a
life sentence imposed upon one who was a juvenile when he
committed capital murder] does not impose a mandatory minimum
sentence under Virginia law.” Id. at 826. As the per curiam
opinion observes, the Supreme Court of Virginia reached that
holding even as it assumed the retroactivity of Miller. One is
left puzzling, therefore, over exactly what the Supreme Court of
the United States imagined might change in the reasoning of the
Supreme Court of Virginia simply by virtue of the fact that the
former’s holding in Montgomery merely elevated the
Commonwealth’s “assumption” regarding retroactivity to a binding
rule of federal constitutional law.
It seems to me, in any event, that the issue of whether or
not, under Miller and Montgomery, a state statutory scheme
mandates (within the contemplation of the Eighth Amendment) a
life sentence upon conviction is an issue of federal law, and
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not, as might appear on first glance, solely an issue of state
law. * Time will tell.
*
We intimated as much in Johnson v. Ponton, 780 F.3d 219,
222 n.2 (4th Cir. 2015), abrogated by Montgomery v. Louisiana,
136 S. Ct. 718 (2016), and vacated, Johnson v. Manis, 136 S. Ct.
2443 (2016) (mem.).
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