IN RE: Jarius Damar PHILLIPS, Movant.
No. 16-9566
United States Court of Appeals, Fourth Circuit.
Argued: December 5, 2017. Decided: January 16, 2018.
879 F.3d 542
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Motion for authorization under
NIEMEYER, Circuit Judge:
On June 24, 2016, Jarius Phillips filed a motion in this court under
After we affirmed the decision in LeBlanc, see 841 F.3d 256 (4th Cir. 2016), we appointed counsel to represent Phillips on his motion in this case. After doing so, however, the Supreme Court reversed our decision in LeBlanc. See Virginia v. LeBlanc, — U.S. —, 137 S.Ct. 1726, 1729, 198 L.Ed.2d 186 (2017) (per curiam) (holding that “it was not objectively unreasonable for the state court tо conclude that, because [Virginia’s] geriatric release program employed normal parole factors, it satisfied Graham’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole“).
We now deny Phillips’s motion because the claim that he seeks to present to the district court was raised in his first federal application for a writ of habeas corpus, and therefore Phillips has not made a “prima facie showing” that his successive habeas application would allege a claim that was not “presented in a prior application,” as the statute requires.
I
In January 2001, a jury impaneled in the Circuit Court for the City of Newport News, Virginia, convicted Phillips of two counts of abduction with intent to defile, in violation of
After сonsidering a presentence report and Virginia’s discretionary sentencing guidelines, the trial court sentenced Phillips to four terms of life imprisonment on the convictions for abduction with intent to defile, rape, and object sexual penetration, plus 20 years’ imprisonment for the mali
Phillips appealed the judgments to the Court of Appeals of Virginia, which denied his appeal by orders dated November 21, 2001, and February 5, 2002. The Supreme Court of Virginia refused his further appeal on May 31, 2002, and denied his petition for rehearing on July 30, 2002. Phillips filed a stаte habeas petition in the trial court on September 12, 2003, which the court dismissed on November 10, 2003, as time-barred, and the same court denied his motion for reconsideration on December 17, 2003. The Virginia Supreme Court dismissed his petition for appeal on July 1, 2004, as untimely.
Nearly 10 years later, on June 7, 2013, Phillips, acting pro se, filed an application for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia, pursuant to
Several months after filing his application, Phillips filed a motion for summary judgment in which he succinctly repeated his argument that, because he “was a juvenile when convicted of non-homicidal offenses and given (4) life terms plus 45 years,” his sentence was “in clear violation of the United States Constitutional ban on cruel and unusual punishment as set forth in Graham and Miller.” (Citations omitted).
The Director of the Virginia Department of Corrections filed a motion to dismiss Phillips’s habeas apрlication, contending that his Eighth Amendment claim was untimely under
Neаrly a year later, on October 15, 2015, Phillips filed a second application in the Eastern District of Virginia for a writ of habeas corpus under
Phillips accordingly filed the current motion in this court on June 24, 2016, for an order authorizing the district court to consider his second or successive habeas application. The motion alleges that Phillips’s life sentences for juvenile nonhomicide offenses were unconstitutional as cruel and unusual punishments under Graham, Miller, and the district court’s decision in LeBlanc.
We placed Phillips’s motion in abeyance by order dated July 18, 2016, pending our review of the district court’s decision in LeBlanc. After we affirmed the grant of habeas relief in LeBlanc, we appointed counsel to represent Phillips in this proceeding. After counsel’s appointment, but before any briefs were filed, the Supreme Court reversed our decision in LeBlanc, holding that, under
II
Before a person in state custody may file a second or successive habeas application in a federal district court, he must obtain authorization from “the appropriate court of appeals” by filing a motion “for an order authorizing the district court to consider the application.”
The term “prima facie showing” means that it must at least “appear[] reasonably likely” that the second or successive application satisfies the
Turning to the motion now before us, Phillips originally sought authorization to file a second or successive habeas application challenging the constitutionality of his sentences under Graham and Miller, as well аs under the district court’s now reversed decision in LeBlanc. With the benefit of counsel, however, Phillips has clarified his position to assert that he “is relying on only Miller for purposes of this proceeding.” In doing so, he contends that he is eligible for prefiling authorization under
As already noted, to obtain authorization to file a second or successive application, Phillips must first make a prima facie showing that his proposed application would present a claim that was not presented in a prior application.
In his 2013 application, Phillips relied extensively on Miller to attempt to obtain
GROUND TWO: Life in prison without possibility of parole sentence for juveniles violates Eighth Amendment[.] Miller v. Alabama[,] Nos[.] 10-9646, 10-9647[,] Argued March 20, 2012[,] Decided June 25, 2012[.] Decision of the United States Supreme Court, held that mandatory life imprisonment without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on cruel and unusual punishment (See Atth[.] B[) ].
* * *
Atth[.] B[.] Miller v Alabama
Ground Two cont’d. [Miller] [s]tates “Mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment prohibition on cruel and unusual punishment[.]”
Also sentencing and punishment under Constitutional Amendment VIII states that “the Eighth Amendment prohibits a sentence of life without the possibility of parole for a child who committed a non-homicide offense[.]”
Again, [i]mposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.
Again [t]he characteristics of youth, and the way they weaken rationales for punishment[,] can rеnder a life-without-parole sentence disproportionate punishment for a juvenile.
The U.S. Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.[“]
In his current motion, Phillips seeks leave to file a successive habeas application to present again a claim based on Miller, and therefore we must deny his motion for authorization. Seе Williams, 330 F.3d at 282 (noting that “claims recycled from [the applicant’s] previous § 2254 application ... may not form the basis for the granting of pre-filing authorization because review is barred under
Phillips concedes that he “raised in his initial postconviction proceeding the Miller claim he now seeks to advance in his second proceeding.” But he argues nonetheless that he should be deemed as having not previously “presented” his Miller claim within the meaning of
There are several problems with Phillips’s argument. First, the language of our opinion in Vial, on which he relies, was addressing the limited issue—later conclusively settled by the Supreme Court in Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001)—of how to determine when a new rule of constitutional law has been “made retroactive to cases on collateral review by the Supreme Court.”
In Dodd, the Court addressed the question of when the 1-year limitation period that applies to a prisoner’s federal postconviction proceeding begins to run, particularly when the prisoner’s claim is based on the Supreme Court’s new recognition of a federal right. Specifically, with respect to a federal prisoner’s collateral challenge to the final judgment in his criminal case,
The Dodd Court rejected the federal prisoner’s argument that, under
Critically, the Dodd Court expressly recognized and rejected the Scylla-and-Charybdis problem identified by Phillips, acknowledging that by giving the statutory text its plain meaning, there was a “potential for harsh results in some cases,” particularly with respect to federal prisoners who have previously filed a § 2255 motion. 545 U.S. at 359, 125 S.Ct. 2478. Indeed, the Court explicitly noted that, “because of the interplay between”
We conclude that Dodd’s reasoning is controlling here. Distilled to its essence, Phillips’s argument is that, based on the operation of the statute of limitations in
Because Phillips has failed to make the necessary prima facie showing that his successive habeas application would present a claim that was not “presented” in his first, his mоtion for leave to file a successive application must be denied. We therefore need not address the separate issues of whether he made a prima facie showing that his proposed claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,”