thank you your honor erika hashimoto from the georgetown law center the court appointed counsel for mr bowling with the court's permission and mr bolling's consent clare cahill a third year law student will be presenting the argument on this triple and a half thank you we look forward to hearing it it please the court my name is claire cahill and i represent the appellant's mr thomas foley the constitution guarantees a meaningful opportunity for release to all not in corrigible juvenile offenders just as sentencing courts must consider a juvenile offenders youth so to must parole officers the virginia parole board violated mr bolling's eighth amendment and procedural due process rights when it failed to account for the mitigating factor letters that are attached to the complaint stated the poll or considered all the factors which include the facts and serve quote facts and circumstances of the offenses including mitigating and remaining actors and yes your honor but those  fourteen factors that the parole board considers in no way differentiate between juvenile offenders and adult offenders they don't know if they don't note to the parole board they must consider mr bolling's offense differently from another adult homicide offender that he has that diminished culpability and also that there are all other mitigating factors that would be uniquely considered in mr billings case as having diminished called villainy for example he was more you agree though i mean it is a question as they give these categories tried and they they describe the facts and circumstances including mitigating factors which by definition are mitigating in that particular case  seems to me your human is used as a mitigating factor should have been consider that one of the problems of god and they're probably a couple but one of them is that that seems to encompass categor lly the youth as a mitigating factor around the circumstances of the fence and if the board tells us they're looking at those things it's it's hard for us to ignore what they're telling us they're doing i guess you say this is the place you should ignore it but help me understand why merely because they use boilerplate language we should ignore what the commonwealth says they're doing your honor i would certainly agree with you that the factors as listed allow for consideration to of mr bones to banish culpability but they do not require that they might consider the fact that he was more susceptible to negative influences and pretend that none of it but it says the board in determining consider the and list those out right i'm is not saying we could consider these things and this is a factual description of what they have done and i guess you say it's boilerplate which i accept but it's still th same what they've done your honor they consider the maybe getting factors of his case as an individual but that doesn't mean that they took into account his diminished culpability as a jew acknowledged and or it's possible that they  assume the worst of the commonweal right it says that they consider the mitigating factors one of the most significant mitigating factors in his case is his you know agent thomas of films why do we assume the worst of the commonwealth and deciding that yeah they say that they're doing it this category would plainly compass that type of information but we're going to assume the worst and find that they they didn't do well your honor first of all i would disagree with the fact they said they considered the mitigating factors of youth in fact coming well how did opportunity specifically state that they considered mitigating factors of youth in the affidavit that they cement that they considered they say they considered the circumstances of the case he was seventeen as the circumstance he was seventeen when it committed the crime is that a circumstance of the case that is a circumstance of the case however there is more than just observing the fact that mr bowling was seventeen years old it also means taking into account all the things that the supreme court listed in miller and also montgomery about the unique characteristics of youth if the parole board is only taking into account he was seventeen without taking into account the fact that he had a greater capacity for change and also that he had diminished culpability and that's not providing him a meaningful opportunity for release as is required under miller for mr bolling's case in a think i interrupted you were you finished your honor mr bowling had only not only a diminished culpability based on his juvenile status but he also did have this greater capacity for change and that's not accounted for at all the factors the fourteen pro factors first of all these fourteen parole factors were promulgated by the parole board but i'm sure so help me understand you say it's not accounted for right but it says you know current conduct and other developmental activities while incarcerated right why and that you know the change but of that encompassed the change that you describe juveniles greater capacity for change is different than an adult's as a supreme court recognized in miller they have a less less fixed character at the time of their offense and so he's being evaluated while he's adult right so like that what what miller in those cases are saying is that you can't just look at the time of sixteen you've got to look at when they're forty five right but here they're looking at when he's forty five and they're saying you know for the last for however already is i don't recall but over that course of time this is exactly the type of activity during incarceration miller suggested were issue in this capacity for change no that's one element of his change however juveniles because their character was less formed and psychologically they were less developed than adults at the born needs to consider his maturity and rehabilitation maturity specifically is one area that's unique to juveniles and means that they are less likely based on the development their development psychologically to commit the same crimes that they that they did back when they were juveniles as juveniles they're much more susceptible to native influences they were much more prone to recklessness and they were less responsible than an adult offender the parole board nowhere in those fourteen factor required is required to consider mr bolling's maturity or it isn't even mentioned specifically rehabilitation the pro factors were promulgated back in  five and haven't been updated since two thousand and six which was four years before the supreme court's opinion in graham and six years before the supreme court's opinion in miller the virginia considering this as in one thousand nine hundred eighty three case  someone acting under color of law in the parole board must've deprived mr bowling of a right secured by the constitution what right secured by the constitution is he to prefer was he deprived of and how was he deprived your honor there are two rights that he's asserting in this case both his eighth amendment right and his procedural due process right particularly under the eighth amendment with miller and also montgomery mr bolling was guaranteed a meaningful opportunity for release sometime during his incarceration and also that graham sorry miller and also montgomery give him a constitutional liberty interest which the board arbitrarily deprived him  by not considering these mitigating factors if you there's no evidence in the record whatsoever that they consider these mitigating factors if you furthermore although mr bowling has been tonight carol since two thousand and five the letters themselves have never changed after the court's opinion in crown or miller to note that they're considering these medicating factors if you've the parole board is required to consider these these mitigating factors if you can order to get from that meaningful opportunity to this procedural demand that the commonwealth you know list out the reason that it is rejected  denying parole well your honor whether or not the commonwealth has to list out the reasons or not they're at least required to consider these mitigating factors of youth and that's really embodied tell me why that is that somebody your honor in the supreme court's opinion in miller and graham where sentencing courts are required to consider these mitigating qualities of youth the force before only that but that they don't that they're not talking about parole right i mean you don't read grand miller as you know a set of guidelines for states to engage in parole proceeding try they're not proceed troll hoops that have to be jumped through just says a meaningful opportunity and indeed in virginia maybe that's just geriatric police that might be sufficient without getting to that question excel how do we get from miller in gray ome meaningful opportunity to meaningful opportunity that includes express consideration  honor to response to that first of all it's important to keep in mind the full phrase that comes from graham which is a meaningful opportunity for released based on demonstrated maturity and rehabilitation which in itself contemplates a later evaluation of that person's growth and maturity and also rehabilitation rate it means at the time right so that means demonstrated means at this point in time so the consideration of who this person is to dig you're seeing something different they need to consider how old he was when he committed the crime which is a different question right they are grand tells us we've got to look at demonstrated maturity and rehabilitation or whatever the exact phrases but that today that's in two thousand and nineteen not at the time of the if it's precisely your honor it's today two thousand one thousand when the parole board is considering mr bolling's per application they need to consider whether or not he's demonstrated that maturity and eyes and in the fourteen factors that the junior parole board is considering they don't consider demonstrated maturity or rehabilitation which was exactly what was promised in graham and then incorporated in miller that testimony which will no your honor however mr pauling doesn't have notice at this point that the probe or to specifically going to look at his occasion any differently than any other adult homicide offender he doesn't necessarily know that he should present evidence that to forty year old men over only was when he committed the crime he could submit that you want to but it's not required it's not required to him at that he might not even know that yes your honor but if there's no evidence there's nothing to i guess i should say promise to her question what is the room of the that mr bolling is actually seeking here because if you go by his original petition he seeks both immediate freedom and release given that mr bowling itself asked for both how do we evaluate that your honor mr bowling is not seeking immediate release and we believe this is properly construed as one thousand nine hundred eighty three case since there is some uncertainty in the as to whether or not this could properly be a hideous case mr bowling is seeking the reversal of the district court's holding that grant and miller do not apply to him and that he didn't have an eighth or fourteenth amendment right to have these mitigating factors if he's considered by the parole board and what is the order i mean it you know help me understand what is the order that you would have of the district court or us i guess we could do it on our own but if it was like to the commonwealth of virginia that the district court is required in the commonwealth of virginia to consider mitigating factors of youth such as diminished culpability and greater capacity for changed in their parole decisions it's really a very small change in evaluating the parole procedure it's just ensuring that the pro for within their factors even possibly as written are making it clear that they are considering these dement they diminish that they could stay exactly the same if the director of the doc wrote a letter than said just to be clear to everybody these factors that seemed to indicate you know include the items you described they actually do include bill that would sort of solve the problem because that provided noticed everybody it's really like a court order that the director issue the letter in your honor that would be one solution yes your honor other  states have changed their statutes in fact seven states have changed their statutes since granting miller to specifically require different than consideration of diminished culpability and other things such as the immaturity of the person and their s fourteenth amendment mr bolling was entitled to have his parole the parole virginia parole board consider the mitigating factors that his diminished culpability and his subsequent maturation as long as it's clear that the is required to consider those elements of his parole application then mr boim would be satisfied if there are no further questions thank your honour's right thank you good morning your honor is and may please the court my name is brittany jones and i'm here today on behalf of the director picking up where the court left off it seems clear based on counsel's acknowledgement that this is not properly  but the question for this court is whether to dismiss or whether to remain and back to the district court for reconsideration of this claim as a section one nine hundred eighty three claim what we would like to emphasize to the court is that given the significant procedural and substantive differences between section one hundred eighty three litigation and section twenty two fifty four litigation it is practically impossible for this court to both three characterize mr collins petition and to decide the merits of the claim at this stage it would require at a minimum this court to remain and back to the district court it you think we can't figure it out now no your honor it's not that this court can't figure it out but there are significant differences that sort of haven't been worked out in the process so for example the defendant in this case hasn't been named properly if this is a section one hundred three case and that matter is not only because this is a different agency that would be named under section nine hundred eighty three but because of that the venue actually would be improper so this case wouldn't be litigated in the western district brownout it would actually be litigated in the eastern district in richmond again there are also substantive defenses that are available in section one hundred eighty i think this court decided that there is no merit to the petition whatsoever but i think this court couldn't do is sort of a lie of the distinction between the way that this case has been litigated and here vs and section ninety three and providing relief on the merits because of the defenses that the commonwealth sort of hasn't been able to are you are you not prepared to argue the one thousand nine hundred three claim today no your honor i'm happy to address this court's questions on the merits to the extent you have any but we  would submit that if this court were interested in re characterization that it remained back to the district court i'm in order for it to be properly litigated as a section one thousand three case i'm again there are actual differences and how the work so well once you go to the merits tell me what the best evidence is or what you would rely on first and foremost to suggest that the commonwealth look think that mr billings parole denial letters indicate precisely what the board considered a mid size the board considered all of the fourteen factors including the mitigating circumstances surrounding his the facts and the evidence of rehabilitation  the specific factors that they cite is changes in motivation and behavior and i think that is just a rewording of exactly what they want to consider in the first instance i would also point the board excuse me the court to the fact that  again the inmate has an opportunity to come forward and present evidence to the board you know reiterate that this was an offense committed when the inmate was seventeen years old other people also have the opportunity  into a letter or you know evidence that they think is pertinent certificates from the jail or whatever might be yes your honor they can submit written that evidence they can also have others appear on their behalf and the pearly whereunto witness correct your hon family members things of that sort and it's the problem to consider is not just the testimony and evidence that is presented in the you know two thousand and six pro hearing but it actually has a record of all of the people who have testified but for every against her all over the course of the inmates eligibility they also have a before them a description of the offense which would you know typically include the age at which the offense was committed and in addition to the institutional record on the other things that are not out there in back that the letters from the parole board haven't really changed at all in the listing of the factors that they consider haven't changed at all even after the mchenry case when other states have  change the language to account for well your honor i think that virginia could adopt a set of guidelines that explicitly accounted for age but i think the best evidence that miller and mark are a don't require that is actually more comrie itself if you look to the opinion in montgomery they actually cite to the wyoming parole statute to make the point that if you know states want to remediate a miller problem but don't want to resentence the defendant they can make them eligible for parole and wyoming has a substantively induced well parole system so it's not clear based on reading miller or montgomery that what the court was intending to do was create a separate set of parole criteria  by which juvenile offenders would have to be evaluated on the background and there are good reasons for that sentencing decisions are fundamentally different from back end parole decisions and some of the discussion this morning illustrated  sentencing decisions are permanent especially when you're talking about life without the possibility of parole they're predictive in nature and they are made when the inmate is a juvenile on the basis of a determination about whether the person will be able in the future drug the course of a lifetime to rehabilitate himself parole decisions are necessarily impermanent they are revisited on an annual basis and they are backward looking bear not about whether someone will be able to rehabilitate themselves or rather whether someone actually has rehabilitated again as an adult so these are very different decisions and there is no reason to import sentencing decisions into the parole context and i think another good is if you think about what the court actually required in miller even reading miller's charitably to them you know as you can what they say it requires is an encouraging ability determination if you were really to import  decisions but let me ask you but plainly hypothetical question which is not the system that you have but a magic the commonwealth decided that we want to comply to the letter on right now but no further and so they read the language that your colleague relies on as providing a meaningful opportunity based on demand traded maturity and rehabilitation right and so they say we're issuing a rule statute l minor at the time of the offense or not and would that be a constitutional procedure if the commonwealth took that approach yes your honor because again if you look at the language in graham and we take issue with reading gra imposing really any substantive criteria on the parole board but even then he certainly on murder and makes not graham which is nonviolent correct your honor but even reading that language and sort of taking it for the most that you can it requires the parole it would require the parole board to consider demonstrated maturity but not necessarily the fact that this was a juvenile at the time again we would submit that virginia actually does account for that because it considers the mitigating circumstances surrounding the crime and i think it's just a sort of practical matter that would include the fact that the person was young in age at the time the offense was committed but it does not have to do so under gr am and again i think good evidence of that is the virginia supreme court's decision in angel and the u s supreme court's decision in the block which illustrates that graham was intended actually to give states discretion in terms of how they came to satisfy the miller or excuse me the gram meaningful opportunity in that geriatric release can actually substitute for the traditional parole process i mean geriatric releases of course more attractive not less restrictive  problems with the new improper or different here or that there's a change in venue you don't mention i don't think venue is specifically mentioned although the difference in defendant has meant it is mentioned and then you are sort of a necessary corollary to the proffer carty named in the case so the point being that there are significant differences between these two types of litigation so regardless of whether we assume we were prepared to rule in your favor today you would prefer that we remained no your honor i think in the interests of judicial economy if this court determined that there were no at that there was no merit to the underlying constitutional claims it would make more sense to resolve that issue today rather than and one of the one of the sort of minor point that i want to mention i think there's a little bit of confusion in terms of the phase of the proceeding and the standard that we apply to mr bolling factual allegations the other side standard that's not a standard that applies and hideous we're talking about haiti is motion to dismiss which is quite different than the typical motion to dismiss if this were a ninety three motion to dismiss then of course that plausibilities would apply but i had to yes it's incumbent upon the defendant to provide evidence in support of his factual allegations it is not something that we construe in his favor and in fact typically you would take the state courts determinations as conclusive under section twenty two fifty four i seriously doubt you listen to the argument before you but he was about determining whether or not a coal mine the factors we should presume they did consider these things and they did consider age even though it was not specifically mentioned is that what your position is in this case they considered it even though it's not the other side mentioned there are these permit permissible under the guidelines but to me said the court was worried about whether they were mandatory i think the court of the virginia supreme court has our your dress that question in angel and the u s supreme court has  was mentioning earlier in terms of how this case has been litigated in haiti yes it is incumbent upon the petitioner to provide evidence that it you know to me we read his complaint as a challenge to a facial challenge to the guidelines as written not a asserting that the guidelines are sort of being misapplied in his case so to the extent he thinks that the guidelines as written don't account for these factors it would be incumbent upon him to seek discovery on to depose members of the parole board things of that nature and if this were a section one hundred eighty three case again i think this is another illustration of why these two are very different and why it makes more sense to treat this as section i was nearly three kids because you would have that opportunity and the commonwealth would of course have the opportunity to submit evidence for example there is a report that's confidential but a report that the examiner or the probe or considers when it's making these determinations and it has the full record of exactly what was considered in mr bolling's case it's not in the record here on it was not submitted by either party the commonwealth doesn't really have the opportunity in hideous to supplement the record was additional evidence but if this case were litigated as a section one hundred eighty three case i think that something that would be quite relevant for both sides would want other potential answer to just treacherous question sort of turned on the debt for instance of to states in determining deference to the commonwealth determination of its own procedure yes your honor and i think to the extent there is any question about whether these considerations are encompassed within the guidelines that would be a question of state law and again we think that the virginia court has already addressed that in the angel opinion but if there is any lingering doubt we would ask the court to certify that question because it is something that the state should have the opportunity to pass on in the first instance if there are no other your honors mr bowling has plausibly alleged at this point that the parole board did not consider the mitigating factors of his youth at the time of his offense the parole letters never changed between two thousand and five and two thousand and sixteen in the pro application that he is challenging in this case even after graham and miller were decided furthermore there is nothing in the factors themselves that specifically mentions juveniles willing to explain angel to me right so an angel says as  recall it is that this has its supreme court of the commonwealth saying that the normal parole considerations provide a meaningful opportunity to obtain release based on demonstrat opportunity of grandma why is that not the same idea well your honor angel is specifically a case about the constitutionality of a sentence of life without parole as long as there is an opportunity for geriatric release and that's what i mean jordy of the angel decision is about however in part six in the final paragraph and run sentence in the final paragraph of that opinion the court mentions that the geriatric release process is identical to the proles process and therefore there is a meaningful opportunity for release however the parole factors were never analyzed in any specific meaningful way it was simply a question as to whether or not that geriatric relief program provided the same opportunity as parole for example sentence of life with parole for the opportunity of parole and so we wouldn't read angel to be binding on the control board to consider them to require them to consider the mitigating factors of  there is but the i mean there's no angel said understand you say well angel did do a really good job but you know it is the supreme court and they do say it right and they quote gray you know they say that the parole proceedings provide the meaningful opportunity for considering the demonstrated rehabilitation which are right and they used exact language from gray right your honor they specifically say that while the statute has an age qualifier provides the commonweal argues the meaningful opportunity to obtain release however once again it was a question of the equivalency of the geriatric release program versus the parole proceedings themselves there is no evaluation of the factors which is what mr bowling is specifically challenging in this case there's no evidence in the record that the board did consider this even in the affidavit that the board chair submitted it they didn't state that they were considering the mitigating factors of use which would have been a perfect opportunity for these reasons your honour's we ask you to reverse the ruling of the district