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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DENNIS LeBLANC,
Petitioner,
RANDALL MATHENA, Chief Warden,
Red Onion State Prison, Pound, Virginia,
and COMMONWEALTH OF VIRGINIA,
Respondents.

Civil Action No. 2:12cv340

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.

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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. § 53.1165.1 (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).

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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).

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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.

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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.

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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 statecourt 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

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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

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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." Ylst v. Nunnemake, 501 U.S. 797, 803 (1991). 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.

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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.

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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
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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).
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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.
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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
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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.
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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
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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.").
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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,
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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
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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
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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).
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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
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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
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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.
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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).
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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.
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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.
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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
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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
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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
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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
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Case 2:12-cv-00340-AWA-LRL Document 35 Filed 07/01/15 Page 31 of 32 PageID# 641 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.
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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.

,2015 . Virginia

Arcndia L. Wrieht Allen
United States District Judge

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").
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 Case 2:12-cv-00340-AWA-LRL Document 1 Filed 06/19/12 Page 1 of 10 PageID# 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

DENNIS LEBLANC, Petitioner,
vs.
RANDALL MATHENA, Chief Warden, Red Onion State Prison, Pound, Virginia, Respondent!!^

Case No.

FILED
JUN 1 9 2012
CLERK. US DISTRICT COURT NORFOLK. VA

PETITION FOR WRIT OF HABEAS CORPUS BY PRISONER IN STATE CUSTODY

Petitioner Dennis LeBIanc, now incarcerated at the Red Onion State Prison in Pound,

Virginia, respectfully petitions this Court for relief from his unconstitutional sentence under

28 U.S.C. § 2254.

I.

INTRODUCTION

1.

Mr. LeBIanc is currently serving two sentences of life imprisonment for two

nonhomicide offenses that occurred out of a single course of conduct committed on July 6, 1999,

when he was 16 years old. Because the offenses Mr. LeBIanc was convicted of occurred after

January 1, 1995, he is ineligible for parole. Va. Code Ann. § 53.1-165.1 (eliminating parole eligibility for individuals convicted of felonies committed on or after January 1, 1995). In Graham

v. Florida, 130 S. Ct. 2011 (2010), the United States Supreme Court clearly established a categorical

I

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rule that juveniles convicted of nonhomicide offenses cannot be sentenced to life without parole.

Id at 2034.

2.

Despite the fact that Mr. LeBlanc's sentence is unconstitutional under Graham, the

Virginia courts summarily denied Mr. LeBlanc's request for relief, finding that Virginia's geriatric

statute renders Mr. LeBlanc's sentence compliant with Graham. This decision is an unreasonable

application of, and is contrary to, United States Supreme Court precedent. See 28 U.S.C.

§ 2254(d)(l). The state courts' failure to grant Mr. LeBlanc relief from his unconstitutional sentence

warrants habeas relief from this Court.

II.

PROCEDURAL HISTORY

3.

On July 15, 2002, Dennis LeBlanc was found guilty of rape and abduction for an

offense that occurred on July 6,1999, after a one-day bench trial in the Virginia Beach Circuit Court

(case number CR02-1515).

4.

On March 4, 2003, Dennis LeBlanc received two sentences of life imprisonment.

Because the offenses occurred after January 1, 1995, he is ineligible for parole. Va. Code Ann.

§ 53.1-165.1. Mr. LeBlanc did not appeal his conviction and sentence.

5.

On May 17,2010, the United States Supreme Court held in Graham v. Florida, 130 S.

Ct. 2011 (2010), that "[t]he Constitution prohibits the imposition of a life without parole sentence

on a juvenile offender who did not commit homicide." Id. at 2034.

6.

In light of Graham, Mr. LeBlanc filed a Motion to Vacate Invalid Sentence on

May 11,2011, in the Virginia Beach Circuit Court. On August 9,2011, after an evidentiary hearing, the circuit court denied Mr. LeBlanc's motion and concluded that Virginia's geriatric statute, which

permits inmates to apply for conditional release at age sixty, provides "an appropriate mechanism"

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for compliance with Graham.

7.

On November 9,2011, Mr. LeBlanc filed a petition for appeal in the Supreme Court

of Virginia. The Supreme Court of Virginia held oral arguments on April 3, 2012, and issued an

order refusing Mr. LeBlanc's petition for appeal on April 13,2012. Mr. LeBlanc filed a petition for

rehearing at the Supreme Court of Virginia on April 26,2012, and the court denied rehearing on June

15,2012.

8.

This petition is Mr. LeBlanc*s first and only application for federal habeas corpus

relief.

III. GROUNDS SUPPORTING THE PETITION FOR RELIEF

9.

Mr. LeBlanc is entitled to habeas reliefbecause the circuit court's denial ofreliefwas

contrary to, and involved an unreasonable application of, federal law clearly established by United

States Supreme Court's decision in Graham v. Florida. 130 S. Ct. 2011 (2010) and the Eighth

Amendment. See 28 U.S.C. § 2254(d)(l).

A.

Graham v. Florida Requires that Mr. LeBlanc Be Afforded a Realistic and

Meaningful Opportunity for Release.

10. In Graham, the Supreme Court held that "for a juvenile offender who did not commit

homicide the Eighth Amendment forbids the sentence of life without parole." Id. at 2030. The

Court in Graham reaffirmed the principle that there are "fundamental differences between juvenile

and adult minds." Id at 2026. The Court reasoned that because of their lack of maturity,

vulnerability to negative outside influences, and undeveloped characters, children under the age of

eighteen possess an inherently "lessened culpability." Id (citing Roper v. Simmons. 543 U.S. 551, 569-70 (2005)). Therefore, the Court found that these children "are less deserving ofthe most severe

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punishments." Id

11.

The Court further recognized that "[t]here is a line 'between homicide and other

serious violent offenses against the individual.' Serious nonhomicide crimes... cannot be compared

to murder in their 'severity and irrevocability.'" Id at 2027 (quoting Kennedy v. Louisiana, 554 U.S.

407,438 (2008)). Both the "age of the offender and the nature of the crime" support the conclusion

that life imprisonment without parole is an unreasonably harsh sentence for a juvenile nonhomicide

offender. Graham, 130 S. Ct. at 2027-28 ("[T]he sentence alters the offender's life by a forfeiture

that is irrevocable. It deprives the convict of the most basic liberties without giving hope of

restitution.").

12.

Moreover, the Court found that a life in prison without parole sentence for a juvenile

nonhomicide offender cannot be justified by the penological theories of retribution, deterrence,

incapacitation, or rehabilitation. Id at 2028-30. Instead, the Court stated that this "perverse

consequence in which the lack of maturity that led to an offender's crime is reinforced by the prison

term" could only be avoided by a "categorical rule against life without parole for juvenile

nonhomicide offenders." Id. at 2033.

13.

In noting that life without parole is the "second most severe penalty permitted by

law," the Court further recognized that a life without parole sentence is more severe when imposed

on a juvenile as compared to an adult because a juvenile offender will "serve more years and a

greater percentage of his life in prison than an adult offender." Id at 2028. "A 16-year-old and a

75-year-old each sentenced to life without parole receive the same punishment in name only," and

this reality was relevant to the Court's determination that life without parole is unconstitutional for

juvenile nonhomicide offenders. Id

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14. Therefore the Court held that teenagers who commit nonhomicide offenses must be

afforded "some realistic [and meaningful] opportunity to obtain release." Id. at 2030, 2034
(emphasis added).

B.

Virginia's Geriatric Provision Does Not Provide Mr. LeBlanc the Realistic

and Meaningful Opportunity for Release Required by Graham.

15. The Virginia Supreme Court held that the circuit court did not err in ruling that Mr. LeBlanc's life without parole sentences are not in violation of the rule announced in Graham because Virginia law allows for the conditional release of prisoners who are over the age of 60 and have served at least 10 years of their sentence under Virginia Code § 53.1-40.01. See Angel v. Commonwealth. 704 S.E.2d 386, 401-02 (Va. 2011). However, the remote possibility of release under this provision, which is akin to executive clemency, does not render Mr. LeBlanc's unconstitutional life without parole sentences compliant with the requirements of Graham.
16. In Graham, the Court held that the "remote possibility" of release through executive clemency does not "mitigate the harshness of the sentence." 130 S. Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300-01 (1983)). Clemency is an "ad hoc exercise," untethered to any meaningful standards and inconsistently granted. Solem, 463 U.S. at 301. Similarly, a prisoner seeking conditional release under the geriatric provision must satisfy the undefined requirement of demonstrating "compelling reasons for release," a burden that does not fall on other parole applicants. Va. Parole Bd. Admin. P. No. 1.226. What constitutes a "compelling reason" is never
defined.

17. According to Virginia's Criminal Sentencing Commission, 95.4% of applications under Virginia's geriatric provision are denied only because of the seriousness of the offense.

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Virginia Criminal Sentencing Commission, Virginia's Geriatric Release Provision, at 10 (Nov. 10, 2008). Denying a juvenile nonhomicide offender release based on the seriousness of the offense contravenes the rationale in Graham that teens engage in conduct they might not have undertaken as adults. Additionally, the Parole Board's Policy Manual explains that the board is not required to consider an offender's rehabilitation and cannot consider the offender's young age at the time of the offense. Va. Parole Bd. Policy Manual, Sec. I.
18. Furthermore, like executive clemency, this provision is almost never utilized. Hundreds of inmates have submitted applications under this provision but since its enactment in 1995, only twenty inmates, or one percent of applicants, have been released under it. Virginia Criminal Sentencing Commission, 1/14/11 Presentation, at 26 (Jan. 14, 2011); Meredith Farrar-Owens, Virginia Criminal Sentencing Commission, Geriatric Inmates in Virginia Prisons, at
28 (2010).
19. Indeed, the geriatric provision is more akin to executive clemency rather than parole because it was passed as a part of Virginia's decision to abolish parole. S.B. 3001,1994 Leg., Spec. Sess. II (Va. 1994). The Virginia Criminal Sentencing Commission has explained that the rationale for the geriatric statute is the release of older inmates who, "by virtue of their age and physical condition, are unlikely to pose a threat to public safety." Farrar-Owens, supra, at 14. Conditional release of these geriatric prisoners was designed to help the Department of Corrections save money, especially with regard to medical expenses for its oldest and most infirm inmates. Id at 15. Thus, Virginia Code § 53.1-40.01 was never intended to provide the kind of remedy contemplated under
Graham.

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C.

The Virginia Courts' Determination that the Geriatric Provision Renders

Mr. LeBlanc's Life Without Parole Sentence Compliant with Graham is an

Unreasonable Application of Federal Law.

20. Because the possibility for release under Virginia's geriatric provision is no more

meaningful or realistic than the possibility of release by executive clemency, which was rejected by

the Court in Graham, 130 S. Ct. at 2027, the Virginia courts' ruling that this statute saves Mr.

LeBlanc's unconstitutional sentence is an unreasonable application of federal law. See 28 U.S.C.

§ 2254(d)(l).

21. Moreover, because this statute ignores a person's growth and instead affords an

opportunity for freedom only to those who are at the end of their life, it is diametrically opposed to

the reasoning of Graham: that juveniles often mature out of their impulsive states and they should

be given a meaningful opportunity of release based on that development. See Graham, 130 S. Ct.

at 2030 (incarcerating juveniles for their entire lives "forswears altogether the rehabilitative ideal").

22. In addition, because Mr. LeBlanc was 16 at the time of the offense, he will have to

serve nearly 44 years before he reaches the age of 60 and becomes eligible to apply for relief under

this statute. Consequently, this provision creates harsher sentences for juvenile offenders than for

adult offenders with the same convictions and sentences, and Mr. LeBlanc will have to serve more

time than any similarly situated adult offender before being eligible for relief. The disproportionate

harshness imposed on juveniles is precisely one of the factors considered by the Graham Court in

finding life without parole unconstitutional for juvenile nonhomicide offenders. Id. at 2028.

23. Mr. LeBlanc was only 16 at the time of his offense, and he did not commit homicide.

Yet under Virginia law Mr. LeBlanc is ineligible for parole consideration on his life sentence. Va.

Code Ann. § 53.1-165.1. By any reasonable application of Graham, Mr. LeBlanc's parole-ineligible

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life sentence violates the Eighth Amendment's prohibition against cruel and unusual punishments.

See Graham, 130 S.Ct. at 2027.

24. The state courts' decisions denying relief is contrary to, and involves an unreasonable

application of, the United States Supreme Court's decision in Graham and the Eighth Amendment.

Mr. LeBlanc is therefore entitled to habeas relief. See 28 U.S.C. § 2254(d)(l).

PRAYER FOR RELIEF

For all the above stated reasons, and any other such reasons as may be made upon

amendment of this petition, Dennis LeBlanc respectfully asks this Honorable Court to grant him the

following relief:

(A) Issue a writ of habeas corpus granting petitioner relief from his

unconstitutional sentence;

(B) If the Court determines there is a need for further factual development, grant

petitioner an evidentiary hearing on the claims presented in this petition;

(C) Permit petitioner an opportunity to brief and argue the issues presented in this

petition;

(D) Afford petitioner an opportunity to reply to any responsive pleading filed by

respondent;

(E)

Grant such further and other relief as may be appropriate.

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Respectfully submitted,

JENNIFER. T. STANTON

J.T. STANTON, P.C.

555 East Main Street #801

Norfolk, VA 23510

Virginia State Bar # 32448

Phone:

(757)622-3628

Fax:

(757) 622-3630

stantonlaw500@gmail.com

RANDALL S. SUSSICIND*

STEPHEN CHU*

JENNAE R. SWIERGULA*

Equal Justice Initiative

122 Commerce Street

Montgomery, AL 36104

Phone:

(334)269-1803

Fax:

(334)269-1806

rsusskind@eji.org

schu@eji.org

jswiergula@eji.org

Counsel for Dennis LeBlanc

* Applying for pro hac vice admission

ATTORNEY'S VERIFICATION

I affirm under penalty of perjury that, upon information and belief, this Petition for Writ of

Habeas Corpus is true and correct. Executed on Cr . \c\

, 2012.

Jennifer T. Stan ton

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on L.Y=\

, 2012, a copy of the foregoing was served by

first class mail on:

Kenneth T. Cuccinelli, II Susan M. Harris Office of the Attorney General 900 East Main Street Richmond, Virginia 23219

Jennifer T. Stanton

 
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

DENNIS LeBLANC, Petitioner,
RANDALL MATHENA, Chief Warden, Red Onion State Prison, Pound, Virginia, and COMMONWEALTH OF VIRGINIA,
Respondents.

CaseNo.:2:12-cv-340

REPORT AND RECOMMENDATION
Before the Court is the Petitioner's, Dennis LeBlanc ("LeBlanc"), Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 ("Petition"), ECF No. 1, and the Respondents' Motion to Dismiss, ECF No. 17. After being fully briefed, the Motion was referred for disposition to the undersigned U.S. Magistrate Judge ("undersigned") pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), Federal Rule of Civil Procedure 72(b), Local Civil Rule 72, and the April 2, 2002, Standing Order on Assignment of Certain Matters to United States Magistrate Judges. After reviewing the briefs, the undersigned disposes of the Motion on the papers without a hearing pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 7(J). For the following reasons, the undersigned RECOMMENDS the Respondents' Motion to Dismiss, ECF No. 17, be GRANTED and LeBlanc's Petition, ECF No. 1, be DENIED and DISMISSED
WITH PREJUDICE.

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I. FACTUAL AND PROCEDURAL BACKGROUND
LeBlanc was convicted in 2002 by a Virginia state trial court of rape and abduction with intent to defile and sentenced a year later to life in prison on each offense. These convictions and sentences were never directly appealed. Because these offenses occurred in 1999 when LeBlanc was sixteen, he is ineligible for parole. Va. Code Ann. § 53.1-165.1 ("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."). Pursuant to Virginia Code § 53.1-40.01 ("geriatric release statute"), however, LeBlanc may apply for conditional release after turning sixty. See id. § 53.1-40.01 ("Any person serving a sentence imposed upon a conviction for a felony offense ... 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.").
On May 17, 2010, the U.S. Supreme Court held in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), that "[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide," id. at , 130 S. Ct. at 2034. And if a state "imposes a sentence of life it must provide [such offender] with some realistic opportunity to obtain release before the end of that term." Id. Following this ruling, on May 11, 2011, LeBlanc moved to vacate his sentences in the Virginia state trial court that had convicted and sentenced him, arguing that "[b]ecause [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," especially in light of the allegedly "remote possibility of release" under Virginia's geriatric release statute. ECF No. 18, attach. 7 at 11, 13. After conducting an evidentiary hearing on August 9, 2011, the court, that day, denied the motion. LeBlanc timely appealed to

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the Virginia Supreme Court on November 9, 2011, asserting that "[t]he trial court erred by finding that Virginia's [geriatric release statute] saves what would otherwise be [an] unconstitutional sentence of life without parole for a non-homicide crime he committed at sixteen years of age." Id., attach. 1 at 6. After oral argument, the Supreme Court refused the
appeal on April 13, 2012, finding no reversible error,1 and denied LeBlanc's timely petition for
rehearing on June 15,2012. Four days later, on June 19, 2012, LeBlanc filed the instant § 2254 Petition, his first. The
question presented is whether the Virginia Supreme Court's holding in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), that Virginia's geriatric release statute provides nonhomicide juvenile offenders sentenced to life in prison without parole a "'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,"' id. at 402, is contrary to or an unreasonable application of the Eighth Amendment as interpreted in Graham. Const, amend. VIII ("[C]ruel and unusual punishments [shall not be] inflicted."); 28 U.S.C. § 2254(d)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"); Graham, 560 U.S. at , 130 S. Ct. at 2024 ("The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.... [I]f [a state] imposes a sentence of life it must provide
1The undersigned proceeds on the logical assumption that one of the reasons the Virginia Supreme Court refused
LeBlanc's appeal, finding no reversible error, is because the question presented there had been raised and decided in a previous case, Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011). Thus, although Angel is not explicitly mentioned in the Supreme Court's order refusing LeBlanc's appeal, that case, reviewed in the context of 28 U.S.C. § 2254(d)(1), effectively controls the disposition of this matter.
3

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him or her with some realistic opportunity to obtain release before the end of that term."); id. at
, 130 S. Ct. at 2030 ("A State is not required to guarantee eventual freedom to a juvenile
offender convicted of a nonhomicide crime. What the State must do, however, is give defendants ... some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."). Although LeBlanc generally requests the Court "[i]ssue a writ of habeas corpus granting [him] relief from his unconstitutional sentence," ECF No. 1 at 8, the undersigned
presumes that should Angel be found to be contrary to or an unreasonable application of clearly
established federal law, then the matter must be remanded to the Virginia state trial court for new sentencing in compliance with the Eighth Amendment as interpreted in Graham.
The Virginia Attorney General, on behalf of the Respondents, filed a Rule 5 Answer, Motion to Dismiss, and brief in support on November 15,2012. ECF Nos. 16-18. After the time to file a response and brief in opposition lapsed, the Court, on April 30, 2013, ordered LeBlanc to respond to the Respondents' Motion to Dismiss, finding that additional briefing by the parties would aid the decisional process. ECF No. 20. LeBlanc did so on May 13, 2013. ECF No. 21. The Respondents have not filed a reply brief, and the time to do so has lapsed. Therefore, the Motion is ripe for disposition.
II. PROCEDURAL ISSUES A. Exhaustion
Section 2254 petitions challenge a state's custody of a prisoner "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). "In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing, a state prisoner must

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exhaust all available state remedies before he can apply for federal habeas relief." Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998) (citing 28 U.S.C. § 2254(b); Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir. 1997)). "To exhaust state remedies, a habeas petitioner must fairly present the substance of his claim to the state's highest court." Id. (citing Matthews, 105 F.3d at 911). In Virginia, that court is the Virginia Supreme Court. "The exhaustion requirement is not satisfied if the petitioner presents new legal theories or factual claims for the first time in his federal habeas petition." Id. (citing Matthews, 105 F.3d at 911). "The burden of proving that a claim is exhausted lies with the habeas petitioner." Id. (citing Mallory v. Smith, 27 F.3d 991,
994 (4th Cir. 1994)).
Although neither party addresses exhaustion in their briefs, the undersigned nonetheless
finds that LeBlanc has exhausted his available state remedies for the purpose of federal habeas
review. Specifically, LeBlanc collaterally attacked his sentence by filing with the Virginia state
trial court that sentenced him a motion to vacate invalid sentence, which is permitted under
Virginia law. See Rawls v. Commonwealth, 683 S.E.2d 544, 547 (Va. 2009) ("Th[e] [Virginia Supreme] Court has recognized that a motion to vacate is an appropriate procedural device to challenge a void conviction.... A circuit court may correct a void or unlawful sentence at any time.") (citations omitted). After losing in the state trial court, LeBlanc properly and timely appealed to the Virginia Supreme Court, which also denied him relief. Because the question presented in LeBlanc's Petition is the same one that was put before the Virginia Supreme Court and state trial court, exhaustion has been met, and federal habeas review is appropriate here.
Notwithstanding exhaustion, however, the Respondents assert that LeBlanc's claim is timebarred, and therefore, his Petition should be denied and dismissed.

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B. Statute of Limitations
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."2 28 U.S.C. § 2244(d)(1)(A), (C). According to the Respondents, LeBlanc's Petition is
time-barred because he should have, but did not, file it by March 4, 2004, one year from March 4,2003, the date he was sentenced. LeBlanc, however, asserts that the limitation period began to
run on May 17, 2010, the date the U.S. Supreme Court decided Graham.3 Excluding the fact
that, contrary to the Respondents' argument, LeBlanc's judgment became "final" under 28 U.S.C. § 2244(d)(1)(A) on April 3, not March 4, 2003, when the thirty days to note an appeal from the Virginia state trial court to the Virginia Court of Appeals expired, the undersigned concurs with LeBlanc's assessment and finds that his Petition was timely filed. See Va. Sup. Ct. R. 5A:6(a) ("No appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree ... counsel files with the clerk of the trial court a notice of appeal."); UnitedStates v. Clay, 537 U.S. 522, 527 (2003) ("Finality attaches when[, inter alia,] the time for filing a certiorari petition expires.") (citations omitted); Smith v. Clarke, 7:13-cv00059, 2013 WL 866077, at *1 (W.D. Va. Mar. 7, 2013) ("Petitioner's conviction became final
2 28 U.S.C. § 2244(d)(1)(B) and (D), which address other means by which to calculate the one-year statute of
limitations, are not applicable and will not be discussed here.
3Although the U.S. Supreme Court modified its decision in Graham on July 6, 2010, it matters not for calculating
the limitation period because the undersigned finds LeBlanc's Petition was timely filed even under the earlier initial decision date of May 17,2010.

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... when the time expired for petitioner to note an appeal from the Circuit Court... to the Court of Appeals of Virginia.") (citation omitted).
In In re Evans, 449 F. App'x 284 (4th Cir. 2011) (unpublished per curiam decision), the
U.S. Court of Appeals for the Fourth Circuit granted a petitioner's4 motion for authorization to
file a second or successive § 2254 petition pursuant to 28 U.S.C. §§ 2244(b)(2)(A), (b)(3), and 2255(h)(2). It did so because the petitioner *'ha[d] made a 'prima facie showing' that his 'claim [of an unconstitutional sentence] relie[d] on a new rule of constitutional law,[ i.e., Graham,] made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.'" In re Evans, 449 F. App'x at 284 (citation omitted). Although the U.S. Government there "properly acknowledged that in the appropriate case Graham establishes a previously unavailable rule of constitutional law that applies retroactively on collateral review," it also argued that Graham did not apply in that case because one of the petitioner's offenses occurred when he was an adult. Id. (citation omitted). Despite the fact that the Fourth Circuit's decision, which is unpublished, only has persuasive value, not precedential authority, the undersigned finds no reason to disturb or depart from the only case from this Circuit that addresses whether Graham announced a new rule of constitutional law that was previously unavailable and whether that rule has been made retroactive to cases on collateral review by the U.S. Supreme Court. Other circuits have reached a similar conclusion. See In re Moss, 703 F.3d 1301,1303 (11th Cir. 2013) ("First, Graham set out a new rule of constitutional law that was not previously available.... Second, [the petitioner] ha[d] made &primafacie showing that Graham has been made retroactively applicable by the Supreme Court to cases on collateral review.") (citation omitted); In re Sparks, 657 F.3d 258, 260 (5th Cir. 2011) (same) (footnote omitted); 4The petitioner was a nonhomicide juvenile offender sentenced to life inprison without parole.
7

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Goins v. Smith, No. 4:09-CV-1551, 2012 WL 3023306, at *5 (N.D. Ohio July 24,2012) (same). If the Fourth Circuit did not intend in Evans to declare Graham to be retroactive, then that issue is best left to that Court to resolve. For the purpose of the analysis here, however, the undersigned calculates the applicable limitation period pursuant to 28 U.S.C. § 2244(d)(1)(C), not § 2244(d)(1)(A).
Accordingly, the limitation period on the claim presented in LeBlanc's Petition began to run on May 17, 2010, the date Graham was decided. This period continued to run for 359 days until, as the Respondents acknowledge, it was tolled during the pendency of LeBlanc's motion to vacate from May 11, 2011, when the motion was filed in a Virginia state trial court, to June 15, 2012, when the Virginia Supreme Court denied his petition for rehearing. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State 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."); Terryv. Kelly, No. 3:10CV635, 2011 WL 1637943, at *2 (E.D. Va. Apr. 28, 2011) ("Pursuant to 28 U.S.C. § 2244(d)(2), the limitation period was tolled ... until the Supreme Court of Virginia denied [the petitioner's] petition for rehearing on his state habeas corpus petition"); ECF No. 18, U 7 ("The statute of limitations was tolled during the pendency of the state court proceedings."). The limitation period resumed thereafter for an additional four days, for a total of 363 days, until LeBlanc filed his Petition on June 19, 2012. Because only 363 days elapsed after the one-year statute of limitations began to run, LeBlanc's Petition was timely filed. The undersigned, therefore, turns
to the merits.

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III. STANDARD OF REVIEW
Although the Virginia Supreme Court refused LeBlanc's appeal in a two-sentence decision, this brief decision in which it found no reversible error in the Virginia state trial court's denial of LeBlanc's motion to vacate constitutes an adjudication on the merits, and the parties do not appear to contest this characterization. See Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc) ("[Courts] must uphold the state court's summary decision unless [their] independent review of the record and pertinent federal law persuades [them] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.") (citations omitted); Renoir v. Virginia, No. 7:99-CV-00580-JLK, 2001 WL 34801301, at *8 n.7 (W.D. Va. July 31, 2001) (holding Virginia Supreme Court adjudicated claim on the merits where it found "no reversible error in the judgment complained of). When a state court addresses the merits of a claim that is raised in a § 2254 petition, the Court may not grant federal habeas relief on that claim unless, inter alia, the state court decision is contrary to or an unreasonable application of clearly
established federal law.5 28 U.S.C. § 2254(d)(1). The Court independently reviews whether that
decision satisfies either standard. See Williams v. Taylor, 529 U.S. 362,412-13 (2000). A state court decision is "contrary to" clearly established federal law if the state court "arrives at a conclusion opposite to that reached by th[e] [U.S. Supreme] Court on a question of law or if the state court decides a case differently than th[e] [Supreme] Court has on a set of materially indistinguishable facts." Id. at 413. As to whether a state court decision is an "['objectively'] unreasonable application" of clearly established federal law, the state court must "identiffy] the correct governing legal principle from th[e] [Supreme] Court's decisions but unreasonably 5The standard ofreview contained in28U.S.C. § 2254(d)(2) isnot applicable and will not bediscussed here.
9

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appl[y] that principle to the facts of the prisoner's case." Id. at 410. Ultimately, though, "statecourt judgments mustbe upheld unless, after the closest examination of the state-court judgment, a federal court isfirmly convinced that a federal constitutional right has been violated." Id. at 389 (emphasis added). It is the Court's obligation to focus "on the state court decision that previously addressed the claims rather than the petitioner's freestanding claims themselves."
McLee v. Angelone, 967 F. Supp. 152,156 (E.D. Va. 1997).
IV. ANALYSIS
The thrust of LeBlanc's Petition is that the Virginia Supreme Court's holding in Angel that Virginia's geriatric release statute provides nonhomicide juvenile offenders sentenced to life in prison without parole with a "'meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation'" is contrary to or an unreasonable application of the Eighth Amendment as interpreted in Graham. Angel, 704 S.E.2d at 402. To ascertain the accuracy of this claim, the undersigned begins with a review of Angel, to which, notably, the U.S. Supreme Court denied a petition for a writ of certiorari. Angel v. Virginia, 132 S. Ct. 344 (2011).
A. Angel v. Commonwealth In Angel, the defendant, who was a juvenile when he committed certain nonhomicide
offenses,6 was given consecutive sentences of twenty years, twelve months, and three terms of
life in prison without parole. After the Virginia Court of Appeals affirmed his convictions and
sentences,7 the defendant appealed to the Virginia Supreme Court, raising six assignments of
6The defendant was convicted in a Virginia state trial court of malicious wounding, abduction with intent to defile,
and object sexual penetration (two counts), all felonies, as well as misdemeanor sexual battery.
7The Virginia Court of Appeals did nothave the occasion to review the defendant's sentences for compliance with
Graham. The Virginia Supreme Court nonetheless included this assignment of error when awarding the defendant 10

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error, including, inter alia, "that his three consecutive life sentences for nonhomicide crimes, without parole, should be vacated" in light of Graham. Angel, 704 S.E.2d at 391. Although LeBlanc received only two consecutive life sentences without parole, compared to the defendant's three, he asserts the same claim in his Petition as the defendant did in Angel, namely, that it is unconstitutional to sentence nonhomicidejuvenile offenders to life in prison in Virginia, which has eliminated parole, because the geriatric release statute does not provide such offenders with a realistic and meaningful opportunity for release required under the Eighth Amendment as interpreted in Graham.
In rejecting this claim, the Virginia Supreme Court distilled the correct and central holding ofGraham: "the Eighth Amendment^ '[prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.... [I]f it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.'" Id. at 401 (quoting Graham, 560 U.S. at , 130 S. Ct. at 2034). However, as the Supreme Court properly qualified,
A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give [nonhomicide juvenile offenders] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in thefirst instance, to explore the means and mechanisms for compliance.... [The Eighth Amendment] does not require the State to release that offender during his natural
life.
Id. at 401-02 (quoting Graham, 560 U.S. at , 130 S. Ct. at 2030) (emphasis added). In determining the reach of Graham, the Supreme Court resolved that states may "devise methods of allowing juvenile offenders an opportunity for release based on maturity and rehabilitation." Id. at 402. One such method in Virginia is the geriatric release statute, which provides prisoners,
an appeal. 11

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who are ineligible for parole based on the date of their offense, see Va. Code Ann. §53.1-165.1, with the opportunity to apply for conditional release after their sixtieth or sixty-fifth birthday, depending on whether they have served at least ten or five years of their sentence, respectively, id. § 53.1-40.01. It is the opinion of the Virginia Supreme Court that this mechanism provides nonhomicide juvenile offenders sentenced to life in prison without parole with a realistic and meaningful opportunity for release required under the Eighth Amendment as interpreted in Graham. See Angel, 704 S.E.2d at 402.
And the Court may not review a claim raised in a § 2254 petition unless, inter alia, the state court decision addressing that claim is contrary to or an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). The operative phrase, "clearly established federal law," means "the holdings, as opposed to the dicta, of th[e] [U.S. Supreme] Court's decision as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. To identify the central holding of Graham, one must turn to the last paragraph of the majority's opinion:
The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that
term.
Graham, 560 U.S. at , 130 S. Ct. at 2034. By this holding, the U.S. Supreme Court has clearly established that a nonhomicide juvenile offender, like LeBlanc, sentenced to life in prison without parole, at first blush, has been sentenced unconstitutionally if he has no realistic opportunity to obtain release before the end of his term. The parties do not appear to contest this
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point. What is less clearly established and the source of the parties' contention, however, is the
denotationof the phrase, a meaningful and realisticopportunity for release.
B. Statistical Data and Parallels to Executive Clemency
In Graham, the U.S. Supreme Court held that executive clemency, as the sole mechanism by which a nonhomicide juvenile offender sentenced to life in prison without parole may be released, does not provide a meaningful and realistic opportunity for release because it offers
Q
only "the remote possibility of [release and] does not mitigate the harshness of the sentence." Id. at , 130 S. Ct. at 2027 (citingSolem v. Helm, 463 U.S. 277,300-01 (1983)). The question, therefore, is whether Virginia's geriatric release statute, which provides prisoners like LeBlanc with the opportunity to apply on a known future date for conditional release, and which sounds in parole but is not referred to as such, provides a meaningful and realistic opportunity for release. LeBlanc answers in the negative, arguing that the (remote) possibility of release under the geriatric release statute is the same as under executive clemency. Although LeBlanc does not include in his exhibits information concerning executive clemency in Virginia so as to make a sound analogy to the geriatric release statute, such data is unnecessary to resolve the present question: whether Virginia's geriatric release statute provides a realistic and meaningful opportunity for release of nonhomicide juvenile offenders sentenced to life in prison without
parole. Between 2001 and 2010, the number of prisoners for which Virginia was responsible who
were eligible to apply for geriatric release increased from 247 to 669, and was projected to
8Although executive clemency is available to Virginia prisoners, see VA. CONST, art. 5, § 12; Va. CODE ANN. §§
19.2-363, 53.1-229, this is not the only mechanism by which nonhomicide juvenile offenders sentenced to life in prison without parole may be released. Because executive clemency was the sole mechanism by which the defendant in Graham could have been released, the parallels between that case and this one are diminished.
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increase to 805 in 2011 and to 962 in 2012. ECF No. 19, attach. 1 at 103, 106. Although there is no reason to challenge the accuracy of these figures, some clarification is warranted. In 2001, the phrase, "committed on or after January 1, 1995," was deleted from the geriatric release statute, S.B. 1167, 2001 Leg. Reg. Sess. (Va. 2001), thereby expanding eligibility for geriatric release to all prisoners, including those who were sentenced under the parole system ("parolesystem inmates"), not just those like LeBlanc who were sentenced under the truth-in-sentencing system ("truth-in-sentencing inmates"), when parole was abolished. ECF No. 19, attach. 1 at 39, 64, 102. However, prisoners who are eligible for parole and geriatric release do not get "two bites at the apple": they may be considered for parole, which is automatic, or they may apply for geriatric release, but they may not be proceed under both in a given year. Id, attach. 1 at 41,75.
Given this background, the above data offers an altogether different perspective. In 2010, the number of prisoners who were eligible to apply for geriatric release, 669, included a substantial number of parole-system inmates, 489, and a significantly smaller set, 180, of truthin-sentencing inmates like LeBlanc. Id., attach. 1 at 76, 103. The last figure is indicative of the "relatively small number of offenders sanctioned under truth-in-sentencing laws [who] have qualified for geriatric release consideration," which in 2001 was only 19. Id., attach. 1 at 103. Although the number of prisoners who were eligible to apply for geriatric release increased from 359 to 669 between 2004 and 2010, less than one-fifth of those eligible actually applied: 39 (11%) in 2004 and 129 (19.2%) in 2010. Id, attach. 1 at 105. Of those applicants, geriatric release was granted to two prisoners in 2004 and eight in 2010. Id., attach. 1 at 105.
On itsface, the number of prisoners who were eligible, applied for, and granted geriatric release—two in 2004 and eight in 2010—substantiates LeBlanc's claim that Virginia's geriatric
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release statute is akin to executive clemency in that it provides only a remote, but not a meaningful and realistic, opportunity for release. Upon closer inspection, however, the above data is only thought-provoking, but it is neither persuasive nor dispositive in answering the question presented. To begin, the fact that "[f]ew eligible inmates have applied to be considered for geriatric release," id, attach. 1 at 78, cautions against issuing a broad declaration that the geriatric release statute as it applies to a nonhomicide juvenile offender who is sentenced to life in prison without parole violates the Eighth Amendment as interpreted in Graham. The above data, moreover, illustrates that just as the number of prisoners who were eligible and applied for geriatric release rose between 2004 and 2010, those who were granted such release also rose between those years. Id., attach. 1 at 105. Although LeBlanc does not provide actual data for 2011 and 2012, it is logical to assume that these figures likewise rose in the preceding two years and will continue to rise in 2013 and after as the number of parole-system inmates decreases. See id., attach. 1 at 78 ("[F]ew eligible inmates have applied to be considered for geriatric release.... This is most likely because the majority of inmates eligible for geriatric release are also eligible for discretionary parole release."). Depending on the validity of this assumption, the parallel LeBlanc creates between executive clemency and Virginia's geriatric release statute either fails (the number of prisoners granted geriatric release continues to rise) or succeeds (this number freezes or decreases).
A more startling and significantly apparent omission from the preceding data is that it does not address juvenile offenders like LeBlanc who were sentenced under the truth-insentencing system. Regardless at what age Virginia distinguishes juvenile offenders from adults, see Va. Code Ann. §§ 16.1-228 (defining a juvenile as any "person less than 18 years of age"),
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-269.1 (permitting a juvenile offender who is fourteen years of age or older and who commits specific crimes under certain circumstances to be transferred to a Virginia state trial court and tried as an adult), the U.S. Supreme Court has effectively demarcated the ages of majority and minority at eighteen, see Graham, 540 U.S. at , 130 S. Ct. at 2038 ("Roper's prohibition on the juvenile death penalty followed from our conclusion that '[t]hree general differences between juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be classified among the worst offenders.'") (quoting Roper v. Simmons, 543 U.S. 551, 569 (2005)). Assuming, arguendo, a seventeen-year-old juvenile offender committed a nonhomicide crime in 1995 and was sentenced to life in prison, that person would be ineligible to apply for geriatric release until (approximately) 2038, when he turns sixty and has served at least ten years of his sentence. Va. Code Ann. § 53.1-40.01. Accordingly, the above data does not and cannot account for nonhomicide juvenile offenders like LeBlanc who were sentenced under the truth-insentencing system. Such data, in fact, would not become available until around 2038. This omission is significant for one reason: LeBlanc is effectively asking the Court to find that the Virginia Supreme Court's decision in Angel is contrary to or an unreasonable application of clearly established federal law based on data that does not touch and concern nonhomicide juvenile offenders sentenced to life in prison without parole. This undermines LeBlanc's claim that the geriatric release statute as applied to juveniles is akin to executive clemency.
C. Virginia Parole Board's Considerations LeBlanc also asserts that applicants for geriatric release, unlike those proceeding under the parole system, must demonstrate a "compelling reason" for why conditional release is appropriate under the circumstances. ECF No. 1 at 5. Coupled with the fact that 95.4% of
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geriatric release applicants have been denied only because of the seriousness of their offense, ECF No. 19, attach. 1 at 46, according to LeBlanc, the geriatric release statute does not provide nonhomicide juvenile offenders sentenced to life in prison without parole with a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," Graham, 560 U.S. at , 130 S. Ct. at 2030. It is the Virginia Parole Board ("Board"), in the first instance, that reviews applications for geriatric release and determines "whether to release inmates [] based on such factors as the nature of the crime, age and medical condition, length of sentence received, time served, criminal record, institutional record, family and community support, and victim input." ECF No. 19, attach. 1 at 143. However, nothing prevents the applicant from asserting as a "compelling reason" for his conditional release that the offense for which he was convicted and sentenced to life in prison without parole was committed when he was a juvenile. Likewise, contrary to LeBlanc's claim, ECF No. 1 at 6 ("Additionally, the Parole Board's Policy Manual explains that the board ... cannot consider the offender's young age at the time of the offense."), nothing precludes the Board from granting conditional release on the basis that the applicant was a juvenile at the time he offended. The above factors account for this. For example, the nature of the crime may encompass the age at which the crime was committed and the applicant's institutional record may demonstrate maturity and rehabilitation.
Additionally, "[a]ll factors in the parole consideration process" apply in the determination of geriatric release. ECF No. 18, attach. 9 at 16. In this vein, the Board is guided by, inter alia, the applicant's "history," the "facts and circumstances of the offense," and "mitigating and aggravating factors," ECF No. 19, attach. 1 at 158-61, all of which may account for the age of the applicant at the time he offended. The Board also examines the applicant's "conduct,
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employment, education, vocational training, and other developmental activities during
incarceration" as well as his "institutional experience" and "changes in motivation and
behavior,"9 which may account for the applicant's maturity and rehabilitation during
incarceration. Id. When taken together, these factors, and their consideration by the Board in
weighing applications for geriatric release, appear to comport with the U.S. Supreme Court's
directive in Graham that states "give defendants like [LeBlanc] some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation." Graham, 560 U.S. at ,
130 S. Ct. at 2030. Time will tell whether that is, in fact, the case. For now, "[i]t is for
[Virginia], in the first instance, to explore the means and mechanisms for compliance" with
Graham by the enactment and implementation of its geriatric release statute.10 Angel, 704
S.E.2d at 401-02 (quoting Graham, 560 U.S. at , 130 S. Ct. at 2030). And it is sufficient for
the purpose of resolving the question presented that the record at this point in time is not well
developed, and may not be for some time hereafter, to successfully demonstrate that, contrary to
the Virginia Supreme Court's decision in Angel, Virginia's geriatric release statute as it applies
9 "Institutional experience" includes "response to available programs," "academic achievement," "vocational
education, training or work assignments," "therapy," and "general adjustment" based on "inter-personal relationships with staff and inmates" as well as "behavior." Likewise, "changes in motivation and behavior" includes "changes in attitude toward self and others," "reasons underlying changes," and "personal goals and description of personal strengths or resources available to maintain motivation for law-abiding behavior." ECF No. 19, attach. 1 at 159-160.
10 It is of no moment thatLeBlanc "will have to serve nearly 44 years before he reaches the age of 60 and becomes
eligible to apply for relief under" the geriatric release statute. ECF No. 1 at 7. The U.S. Supreme Court in Graham instructed states to "give defendants like [LeBlanc] some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation," not "to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime." Graham, 560 U.S. at , 130 S. Ct. at 2030. Additionally, the U.S. Supreme Court did not require that an opportunity for release come about ten, twenty, or even thirty years after the defendant is convicted and sentenced. It appears sufficient under Graham that the defendant was given "some realistic opportunity to obtain release before the end of that term," presumably before death, even if that opportunity comes forty-four years into his incarceration. Id. at , 130 S. Ct. at 2034. Virginia's geriatric release statute, according to the Virginia Supreme Court in Angel, provides defendants with a meaningful opportunity for release before the end of their prison term, and the undersigned knows of no reason to depart from this determination.
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to nonhomicide juvenile offenders sentenced to life in prison without parole violates the Eighth
Amendment as interpreted in Graham.11
V. RECOMMENDATION
For these reasons, the undersigned RECOMMENDS the Respondents' Motion to
Dismiss, ECF No. 17, be GRANTED and LeBlanc's Petition, ECF No. 1, be DENIED and
DISMISSED WITH PREJUDICE.
VI. REVIEW PROCEDURE
By receiving a copy of this Report and Recommendation, the parties are notified that:
1. Any party may serve on the other party and file with the Clerk of the Court specific
written objections to the above findings and recommendations within fourteen days from the date
this Report and Recommendation is mailed to the objecting party, see 28 U.S.C. § 636(b)(1)(C);
Fed. R. Civ. P. 72(b), computed pursuant to Federal Rule of Civil Procedure Rule 6(a) plus three
11 The undersigned has reviewed a recently decided case submitted by LeBlanc, Parker v. State, No. 2011-KA-
01158-SCT, So.3d , 2013 WL 2436630 (Miss. June 6, 2013), in which the Mississippi Supreme Court vacated a defendant's life sentence for a murder he committed as a juvenile. The Court found the defendant's sentence to be incompatible with the U.S. Supreme Court's holding in Miller v. Alabama, 130 S. Ct. 2455 (2012), "that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile [homicide] offenders," id. at 2469 (citing Graham, 560 U.S. at , 130 S. Ct. at 2030). Specifically, the Mississippi Supreme Court determined that Miller applied in this case because though the defendant was sentenced to life, and not life without parole, state law effectively foreclosed the possibility of parole in light of the offense. Parker, 2013 WL 2436630, at *7. Although Mississippi has a statute akin to Virginia's in that prisoners may petition for conditional release after turning sixty-five and serving at least fifteen years, id. at *8 n.15 (quoting Miss. Code Ann. § 47-5-139(1 )(a)), the Mississippi Supreme Court's analysis in Parker does not control here.
First, Parker and this case concern two juvenile offenders convicted of two different crimes—a homicide offense in the former and a nonhomicide offense in the latter—and involve two different U.S. Supreme Court decisions applied by the highest courts of two different states to two different state statutes. Second, Miller, which is the focus of the Mississippi Supreme Court's inquiry in Parker, does not apply in this case because LeBlanc was not sentenced under a scheme that mandated life in prison without parole for juvenile offenders. Third, the Mississippi Supreme Court, in a conclusory fashion and without evidentiary support, declared that "[c]onditional release is more akin to clemency." Id. at *8. Had LeBlanc been sentenced to life in prison without parole because that was the sentence that Virginia law mandated (which Virginia does not), and had the sentencing court, in imposing the harshest possible penalty (apart from the death penalty), failed "to take into account how children are different, and how those differences counsel against irrevocably sentencing [him] to a lifetime in prison" (which LeBlanc does not allege), Miller, 132 S. Ct. at 2469, then the parallels between Parker and this case would become more apparent. But that is not the situation here, and as such, the undersigned declines to follow and apply the reasoning in Parker. The undersigned also takes no position on whether the Mississippi Supreme Court correctly or reasonably interpreted and applied Miller.
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days permitted by Federal Rule of Civil Procedure Rule 6(d). A party may respond to another party's specific written objections within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
2. A United States District Judge shall make a de novo determination of those portions of this Report and Recommendation or specified findings or recommendations to which objection is made. The parties are further notified that failure to file timely specific written objections to the above findings and recommendations will result in a waiver of the right to appeal from a judgment of this Court based on such findings and recommendations. Thomas v. Am, 474 U.S. 140 (1985); Carr v. Hutto, 737 F.2d 433 (4th Cir. 1984); UnitedStates v. Schronce, 727 F.2d 91 (4th Cir. 1984).
The Clerk is DIRECTED to forward a copy of this Report and Recommendation to counsel of record for the parties.

Norfolk, Virginia
July^j, 2013

Lawrence R. Teonard
United States Magistrate Judge

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CLERK'S MAILING CERTIFICATE
A copy of this Report and Recommendation was mailed on this date to the following:
Jennifer T.Stanton
J.T. STANTON, P.C.
555 East Main Street #801
Norfolk, Virginia 23510
Counsel for the Petitioner
Lara Kate Jacobs
Office ofthe Attorney General
900 East Main Street
Richmond, Virginia 23219 Counsel for Respondents
o Galindo the Court
By: Deputy Clerk
July 2^ 2013

 
 Case 2:12-cv-00340-AWA-LRL Document 27 Filed 11/11/13 Page 1 of 13 PageID# 564

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

DENNIS LEBLANC,

*

*

Petitioner,

*

*

vs.

*

*

RANDALL MATHENA,

*

*

Chief Warden, Red Onion State

*

Prison, Pound, Virginia, and

*

*

COMMONWEALTH OF VIRGINIA,

*

*

Respondents.

*

Civil Action No. 2:12-cv-340

PETITIONER’S SUPPLEMENTAL BRIEF
On June 19, 2012, petitioner Dennis LeBlanc filed a petition for habeas corpus requesting this Court to grant him relief from his unconstitutional sentence under 28 U.S.C. § 2254. Mr. LeBlanc is serving two life without parole sentences for nonhomicide offenses committed when he was sixteen years old. Although Mr. LeBlanc challenged the legality of his sentence under Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010), the Virginia courts erroneously found that his sentence was constitutional because he can apply for release based on compelling reasons at the age of 60 under Virginia’s geriatric provision. Va. Code Ann. § 53.1-40.01. This remote possibility of release does not remedy Mr. LeBlanc’s unconstitutional life without parole sentences.
On October 11, 2013, this Court issued an order directing Mr. LeBlanc to: a) identify statistics involving juvenile nonhomicide offenders applying for conditional release under Virginia’s
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Geriatric Parole provision; b) provide an analysis of possible factors that could qualify as “compelling reasons for release” for geriatric parole; c) brief whether provisions similar to Virginia’s Geriatric Parole exist in other states and, if so, whether they have been found to be distinguishable from the ruling in Graham; and d) address whether other states’ provisions have been construed as being similar to executive clemency or whether they have been found invalid because any meaningful and realistic opportunity for release would occur close to or past a prisoner’s life expectancy. This supplemental brief is filed in response to this Court’s order. I. THE GRAHAM V. FLORIDA DECISION DID NOT DISTINGUISH OTHER
STATES WITH PROVISIONS SIMILAR TO VIRGINIA’S GERIATRIC PAROLE. Virginia’s geriatric provision, which allows an inmate to apply for release based on “compelling reasons” at age 60, is a statute designed to help control the budget and duties of the Virginia Department of Corrections. It is not a statute designed to review the appropriateness of a prisoner’s sentence. This Court asked Mr. LeBlanc to identify whether provisions similar to Virginia’s geriatric statute have been found to be distinguishable from the ruling in Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011 (2010). In Graham, the United States Supreme Court rejected the idea that these types of provisions were relevant to its conclusion that life without parole sentences for children convicted of nonhomicide offenses are unconstitutional. Under Florida’s laws, Terrance Graham had a possibility of release both through the state’s executive clemency procedures, Fla. Stat. § 940.01, and through Florida’s conditional medical release program, which allows an inmate to be conditionally released due to an existing physical or medical condition, Fla. Stat. § 947.149; Fla. Admin. Code Ann. r. 23-24.020. Nevertheless, the Supreme Court stated that Florida’s life without parole sentence “deprives the convict of the most
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basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence.” Graham, 130 S. Ct. at 2027 (citing Solem v. Helm, 463 U.S. 277, 300–01 (1983)); see also Solem, 463 U.S. at 300 (“Parole is a regular part of the rehabilitative process. Assuming good behavior, it is the normal expectation in the vast majority of cases.”). The mechanisms in Florida law that provided for the remote possibility of release did not bring Mr. Graham’s life sentence in compliance with the Eighth Amendment. Graham, 130 S. Ct. at 2033. Instead, the Court ruled Florida was denying Mr. Graham “any chance to later demonstrate that he is fit to rejoin society based solely on a nonhomicide crime that he committed while he was a child . . . ,” id., and that states must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 2030. Therefore, although certain state statutes might provide a prisoner a small chance of release based on age or medical infirmities, the holding in Graham makes clear that these types of provisions were not of the character and type necessary under the Eighth Amendment to provide a meaningful opportunity to rejoin society. See id. at 2034.
In its Graham decision, the Supreme Court recognized eleven states with children serving life without parole for nonhomicide offenses. Id. at 2024 (eleven states are Florida, California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia). At the time of the Graham decision, five of these jurisdictions, including Florida and Virginia, had provisions that provided the possibility of release based on age or medical infirmities that were applicable to children serving life without parole sentences for non-homicide offenses. See Del. Code Ann. tit. 11, § 4346(e) (permitting parole if removal from institution is necessary for well-being of inmate with physical or mental condition); La. Rev. Stat. Ann. § 15:574.20 (providing
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medical parole procedure); Miss. Code Ann. § 47-5-139(1)(a) (allowing prisoner sentenced to life to petition for conditional release after reaching age 65 and serving at least 15 years). Despite the presence of these mechanisms that provide for the remote possibility of release, the Supreme Court still found that the juvenile nonhomicide offenders in these states, as well as in Virginia, had sentences of life imprisonment without the possibility of parole. Graham, 130 S. Ct. at 2024.
II. NO OTHER JURISDICTION HAS RELIED ON ITS GERIATRIC PROVISION, WHICH IS AKIN TO EXECUTIVE CLEMENCY, AS A CONSTITUTIONAL REMEDY FOR AN ILLEGAL SENTENCE UNDER GRAHAM V. FLORIDA. This Court also asked us to address how other states with provisions similar to Virginia’s
geriatric parole have responded to the Graham decision. Of the ten other states that have provisions similar to Virginia’s, none of these jurisdictions have found that their infirmity-based parole provision establishes a realistic and meaningful opportunity for parole based on maturity and rehabilitation.1
Mississippi is the only state to expressly address its geriatric parole provision in light of juvenile life without parole sentences. Parker v. State, 119 So. 3d 987, 997 (Miss. 2013) (applying Miller v. Alabama, 132 S. Ct. 2455 (2012)). The Mississippi Supreme Court agreed with the United States Supreme Court that its conditional release statute was like executive clemency. Id. The
1 See Cal. Penal Code § 3550 (medical parole provision); Del. Code Ann. tit. 11, § 4346(e) (parole if necessary for well-being of prisoner with physical or mental condition); Fla. Stat. § 947.149 (conditional medical release program); La. Rev. Stat. Ann. § 15:574.4(A)(4) (conditional release at age 60 after 10 years in prison for non-violent offenders); La. Rev. Stat. Ann. § 15:574.20 (medical parole procedure); Miss. Code Ann. § 47-5-139(1)(a) (geriatric parole provision at age 65); Miss. Code Ann. § 47-7-4 (medical conditional release law); Neb. Rev. Stat. § 83-1,110.02 (medical parole provision); Nev. Rev. Stat. § 209.3925 (medical parole to residential confinement); Okla. Stat. tit. 57, § 332.7(A)(2) (geriatric parole provision at age 60); Okla. Stat. tit. 57, § 332.18 (medical parole provision); S.C. Code Ann. § 24-21-715 (parole for terminally ill, geriatric, or permanently disabled inmates).
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Mississippi court found that the eligibility to petition for conditional release at the age of 65 “is more akin to clemency, which the Supreme Court has held ‘[a]s a matter of law’ to be different from parole ‘despite some surface similarities.’” Id. (quoting Solem, 463 U.S. at 300) (alteration in original). Although Mississippi law contains a geriatric parole provision, Miss. Code Ann. § 47-5139(1)(a), as well as a separate medical conditional release law, Miss. Code Ann. § 47-7-4, the court did not accept these statutes as proper remedies for an unconstitutional life without parole sentence. Rather, the court ruled that a sentence of life imprisonment with eligibility for parole should be made available for juveniles when appropriate. Parker, 119 So. 3d at 999.
Additionally, other states have applied Graham by resentencing children to term-of-years sentences or by granting parole eligibility, without referencing or relying on infirmity-based provisions. In response to Graham, the Louisiana Supreme Court severed the provision of Louisiana’s parole statute that prohibited parole eligibility for prisoners serving life sentences, making children serving life sentences in Louisiana for nonhomicide offenses parole eligible after serving twenty years and reaching age 45. State v. Shaffer, 77 So. 3d 939, 942 (La. 2011); La. Rev. Stat. § 15:574.4(A)(2).2 Of particular relevance to Mr. LeBlanc’s case, the Louisiana Supreme Court found that parole eligibility after serving twenty years and reaching age 45 was the appropriate remedy under Graham, rather than another provision of Louisiana’s parole statute which would have
2 In contrast to Virginia’s geriatric parole provision, under which prisoners must initiate a process that requires the demonstration of “compelling reasons,” without any guarantee of a hearing. Va. Parole Bd. Admin. P. No. 1.226, available at http://www.vadoc.state.va.us/vpb/manuals/pbprocmanual.pdf, Louisiana’s remedy allows children with life without parole sentences to be evaluated by the parole board as to whether they have shown maturity and rehabilitation. Currently, the Louisiana parole board has considered six prisoners eligible for parole under Graham. Undersigned counsel at the Equal Justice Initiative has represented these inmates in their parole hearings, and 50 percent of them have been granted parole.
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made prisoners eligible for relief under Graham parole eligible at age 60. See La. Rev. Stat. § 15:574.4(A)(4).3 Courts in Florida have responded to Graham by replacing unconstitutional life without parole sentences with term-of-years sentences. See, e.g., Lavrrick v. State, 117 So. 3d 1141, 1142 (Fla. Dist. Ct. App. 2012) (affirming new sentence of 25 years plus 10 years probation). The California Supreme Court ruled that even a lengthy term of years sentence with parole eligibility that falls outside a prisoner’s life expectancy violates the Eighth Amendment. People v. Caballero, 55 Cal. 4th 262, 268 (2012) (110 year sentence unconstitutional under Graham). And the state of Nebraska resentenced a juvenile with life without parole to a term of forty years and subsequently granted him parole after twenty years in prison. Nicholas Bergin, A Second Chance, A New Momentum, Lincoln Journal Star, Dec. 2, 2012, available at http://journalstar.com/news/state-and-regional/nebraska/a-second-chance-a-new-momentum/artic le_c39bfbc2-086d-5928-8407-f3f597b573e5.html. These states followed the Supreme Court’s mandate in Graham by remedying unconstitutional juvenile life without parole sentences with procedures separate and distinct from their existing infirmity-based provisions for conditional release.
Similarly, after the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), which rejected mandatory life without parole sentences for all children convicted of homicides, states complied with the ruling without referencing the infirmity-based provisions in their code. See, e.g., Del. Code Ann. tit. 11, § 4209A (amending juvenile sentencing scheme from life
3 Subsequently, the Louisiana legislature amended the parole statute in Louisiana which makes children sentenced to life for a nonhomicide offense eligible after serving 30 years and reaching age 45, meaning that 47 is the oldest age at which a child sentenced to life can become parole eligible. La. Rev. Stat. Ann. § 15:574.4(D) (amended in 2012).
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without parole to include minimum sentence of 25 years); Neb. Rev. Stat. § 28-105.02 (amending juvenile sentencing scheme from life without parole to include minimum sentence of 40 years). Again, the states recognized that a geriatric or medical parole statute was insufficient to remedy the constitutional violations explained by the Supreme Court in Graham and Miller.
Finally, while not reviewing a specific geriatric or medical parole provision, the Iowa Supreme Court found that allowing a prisoner an opportunity for release only when he or she is near or past life expectancy fails to bring a child’s sentence in compliance with the Eighth Amendment. After Graham, the Iowa Supreme Court severed its statutory sentencing scheme to give juvenile nonhomicide offenders the possibility of parole. Bonilla v. State, 791 N.W.2d 697, 697 (Iowa 2010). In addition, the Iowa Supreme Court addressed a minimum sentence of 52.5 years imprisonment and held that “[t]he 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.” State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (applying Miller v. Alabama). III. THE COMPELLING REASONS FOR RELEASE OF GERIATRIC PRISONERS
ARE BASED ON AGE AND MEDICAL INFIRMITIES. Additionally, this Court requested an analysis of possible factors that could qualify as “compelling reasons for release” for Geriatric Parole. The term “compelling reason” is not contained in the statute creating geriatric release, see Va. Code Ann. § 53.1-40.01, but was created by the parole board when it promulgated regulations to implement the statute. See Conditional Release of Geriatric Inmates, Va. Parole Bd. Admin. P. No. 1.226, (Doc 18-9, at *6-8.) The term “compelling reason” is not defined in the regulation or in the form that inmates are required to use when applying
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for geriatric release. Petition for Geriatric Release, available at http://www.vadoc.virginia.gov/about/procedures/documents/800/820_F1.pdf. However, the Virginia Sentencing Commission has expressly stated that the purpose in creating Virginia’s geriatric provision is to potentially release inmates who are 60 and older, and due to their age and infirmity, create significant cost increases for the Department of Corrections. (Doc 19-1, at 40.). Therefore, the “compelling reason” language in the regulation is necessarily related to the age and medical condition of the prisoner and is not responsive to Graham’s requirement of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 130 S. Ct. at 2030.
Virginia’s geriatric provision is consistent with what a number of other states have done to address the costs associated with this growing population of elderly and infirm prisoners. According to the Bureau of Justice Statistics, between 1995 and 2010, the general prison population grew from 1,085,022 to 1,550,600, an increase of about 43 percent. During that same time period, the number of prisoners aged 55 and over4 increased from 32,600 to 124,900, an increase of 283 percent. Compare http://www.bjs.gov/content/pub/pdf/p03.pdf (Tbl. 10), with http://www.bjs.gov/content/pub/pdf/p10.pdf (Tbls. 12 & 13). Likewise, between 1990 and 2008, the Virginia Department of Corrections saw a nearly 600 percent increase in prisoners over the age of 50, from 715 to 4,678. VERA Institute of Justice, It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release, at 4, http://www.vera.org/sites/default/files/resources/downloads/Its-about-time-aging-prisoners-incre
4 While Virginia’s geriatric provision defines elderly inmates as age 60 and older, many of the available statistics on this population categorize elderly prisoners as either age 50 and older or age 55 and older.
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asing-costs-and-geriatric-release.pdf. The increase in elderly inmates is largely the result of tougher sentencing practices, including mandatory minimums, three strikes laws, and truth-in-sentencing legislation which often requires prisoners serve 85 percent of their sentence before they are eligible for release. See, e.g., Human Rights Watch, Old Behind Bars: The Aging Prison Population in the United States, at 24, http://www.hrw.org/sites/default/files/reports/usprisons0112webwcover_0.pdf.
The rising number of elderly inmates has created a corresponding increase in costs for departments of corrections, as expenses associated with incarcerating older prisoners are drastically higher. For example, in Virginia, the average offsite medical cost for a prisoner under age 50 was about $800, but the average offsite medical costs for prisoners 50 and over was $5,400. Human Rights Watch, at 77. It has been estimated that in general, the health care costs of elderly inmates is three to nine times higher than that of younger ones. Jamie Fellner, Graying Prisoners, The New York Times (Aug. 18, 2013), available at http://www.nytimes.com/2013/08/19/opinion/graying-prisoners.html. Therefore, in an attempt to address the increase in costs required to care for this growing population, Virginia, along with at least fourteen other states and the District of Columbia, have enacted statutes that provide a mechanism for elderly prisoners to apply for release based on illness or age-based infirmities.5
5 Indeed, most of the states that have this type of provision either enacted the statute or amended their existing medical parole statute to include an age based provision in the 1990s and early 2000s, when the population of aging inmates began to grow rapidly. See Colo. Rev. Stat. § 171-102 (amended to included age-related provision in 2000); 2000 Colo. Sess. Laws Ch. 312; Conn. Gen. Stat. § 54-131k (enacted in 2004); D.C. Code § 24-465 (enacted in1993); Md. Code Ann., Crim. Law § 14-101(f) (enacted in 2002); Miss. Code Ann. § 47-5-139 (amended to include agerelated provision in 1995); 1995 Miss. Laws Ch. 596; Mo. Rev. Stat. § 217.250 (amended to include age-related provision in 1994); 1994 Mo. Laws S.B. 763; N.M. Stat. Ann. § 31-21-25.1 (enacted in 1994); Okla. Stat. tit. 57, § 332.7 (amended to include age-related provision in 1997); 1997 Okla. Sess. Laws Ch. 133; Ore. Rev. Stat. § 144.122(1)(c) (amended to include age-related provision in 1993), 1993 Ore. Laws Ch. 198; Tex. Gov’t Code § 508.146 (enacted in 1997); Va. Code An. § 53.1-
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These statutes are not meant to provide an evaluation of an inmate's rehabilitation and potential for successfully reentering and becoming a contributing member of society. Instead of a mechanism to review the appropriateness of a prisoner's sentence, these statutes are intended to alleviate budgetary concerns of state departments of corrections by releasing prisoners who are costly to the system. The Graham decision requires states to give children convicted of nonhomicide offenses an opportunity to demonstrate their "maturity of judgment and self-recognition of human worth and potential." Graham, 130 S. Ct. at 2032. Consequently, Virginia’s statute that provides prisoners the potential for release only if they can demonstrate a “compelling reason” related to medical and age-based infirmities does not satisfy the Eighth Amendment requirement that prisoners like Mr. LeBlanc have a meaningful opportunity for release based on demonstrated growth and rehabilitation. IV. NO JUVENILE NON-HOMICIDE OFFENDERS ARE YET ELIGIBLE TO APPLY
FOR VIRGINIA’S GERIATRIC PROVISION. Finally, this Court asked Mr. LeBlanc to identify statistics on juvenile non-homicide offenders who have applied for geriatric release. However, Virginia first eliminated parole for any type of conviction or sentence other than the death penalty in 1982 and therefore, the oldest that a person who is parole ineligible and who was under age 18 at the time of their offense could be today is 49. Virginia’s geriatric provision does not allow a prisoner to apply for conditional release until he or she turns 60. Consequently, no one who was sentenced to life in Virginia for a non-homicide offense as a child is eligible yet to apply for its geriatric provision.6 In the Graham decision, the
40.01 (enacted in 1995). 6 There are two ways a child could be sentenced to life without parole in Virginia. First, in
1982, Virginia eliminated parole eligibility for “three time losers,” who were convicted of three 10

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Supreme Court stated that Virginia’s Department of Corrections reported that there were eight juvenile nonhomicide offenders serving life without parole sentences. 130 S. Ct. at 2024. Most of these prisoners received their LWOP sentences under the 1995 statute, and consequently are decades away from being theoretically eligible for geriatric review under current law. See, e.g., Angel v. Commonwealth, 704 S.E.2d 386, 401 (Va. 2011); Pet. for Writ of Habeas Corpus (Doc 1, at *1), Blount v. Clarke, No. 2:12cv699 (E.D. Va. Dec. 21, 2012).
separate felony offenses of murder, rape, or armed robbery, for people who were convicted of three separate controlled substance related felony offenses, and for people serving life sentences who were convicted of escape. Va. Code. Ann. § 53.1-151 (B), (B1), (B2). Prior to the enactment of this statute in 1982 however, under Virginia law, every person convicted of a felony offense, except for persons sentenced to death, was parole eligible after serving a defined amount of time. Franklin v. Shields, 569 F.2d 784, 788 (4th Cir. 1977) (persons with term of year sentences parole eligible after serving one-fourth of term or twelve years, whichever is less, and persons serving life sentences parole eligible after serving fifteen years) (citing Va. Code Ann. § 53-239 (1976 Cum. Supp.)). Then, in 1995, Virginia abolished parole entirely for all felony convictions. Va. Code Ann. § 53.1165.1. This is the provision under which Mr. LeBlanc is parole ineligible.
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CONCLUSION

Virginia alone has chosen to argue that its geriatric provision satisfies the Graham

requirement. Every other state has expressly or implicitly determined that the mere potential for

release under an infirmity-based provision does not bring their sentencing laws in compliance with

the Eighth Amendment. Habeas relief is necessary and warranted here because the last state court

to reach the merits of the claim issued a decision that was an unreasonable application both of the

facts and of clearly established Federal law. For these reasons, Mr. LeBlanc requests this Court to

grant him habeas corpus relief under 28 U.S.C. § 2254.

Respectfully submitted,

/s/ Jennifer T. Stanton

JENNIFER T. STANTON

Virginia State Bar # 32448

J.T. STANTON, P.C.

555 East Main Street #801

Norfolk, VA 23510

Phone:

(757) 622-3628

Fax:

(757) 622-3630

stantonlaw500@gmail.com

RANDALL S. SUSSKIND*

STEPHEN CHU*

JENNAE R. SWIERGULA*

Equal Justice Initiative

122 Commerce Street

Montgomery, AL 36104

Phone:

(334) 269-1803

Fax:

(334) 269-1806

rsusskind@eji.org

schu@eji.org

jswiergula@eji.org

Counsel for Dennis LeBlanc

* Admitted pro hac vice

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 11th day of November, 2013, I will electronically file the
foregoing with the Clerk of Court using the CM/ECF system, which will then send a notification of
such filing (NEF) to the following:
Lara K. Jacobs Office of the Attorney General Public Safety and Enforcement Division 900 East Main Street Richmond, Virginia 23219 ljacobs@oag.state.va.us
/s/ Jennifer T. Stanton Jennifer T. Stanton

 
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PUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7151
DENNIS LEBLANC, Petitioner - Appellee,
v. RANDALL MATHENA, Chief Warden, Red Onion State Prison, Pound, Virginia; COMMONWEALTH OF VIRGINIA,
Respondents - Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:12-cv-00340-AWA-LRL)

Argued: May 10, 2016

Decided: November 7, 2016

Amended: November 10, 2016

Before NIEMEYER and WYNN, Circuit Judges, and Thomas E. JOHNSTON, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the opinion, in which Judge Johnston joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF

VIRGINIA, Richmond, Virginia, for Appellants.

Bryan A.

Stevenson, EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for

Appellee. ON BRIEF: Mark R. Herring, Attorney General of

Virginia, Linda L. Bryant, Deputy Attorney General, Criminal

Appeal: 1C5a-s7e1521:12-cDv-o0c0:35400-AWA-LFRileLd:D1o1c/1u0m/2e0n1t650 FPigle:d21o1f/6140/16 Page 2 of 64 PageID# 727 Justice & Public Safety Division, Donald E. Jeffrey, III, Senior Assistant Attorney General, Eugene P. Murphy, Senior Assistant Attorney General, Katherine Quinlan Adelfio, Assistant Attorney General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellants. Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk, Virginia; Randall S. Susskind, Jennae R. Swiergula, Stephen Chu, EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for Appellee.
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WYNN, Circuit Judge:

Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the

Eighth Amendment forbids the sentence of life without parole”

for juvenile offenders convicted of nonhomicide offenses.

Accordingly, the Supreme Court held that States must provide

juvenile nonhomicide offenders sentenced to life imprisonment

with “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.” Id. at 75.

Nearly a decade before the Supreme Court decided Graham,

Respondent, the Commonwealth of Virginia, sentenced Petitioner

Dennis LeBlanc to life imprisonment without parole for a

nonhomicide offense he committed at the age of sixteen. In

light of Graham, Petitioner sought postconviction relief from

his sentence in Virginia state courts. The state courts denied

Petitioner relief, holding that Virginia’s geriatric release

program--which was adopted more than fifteen years before the

Supreme Court decided Graham and will allow Petitioner to seek

release beginning at the age of sixty--provides the “meaningful

opportunity” for release that Graham requires.

Mindful of the deference we must accord to state court

decisions denying state prisoners postconviction relief, we

nonetheless conclude that Petitioner’s state court adjudication

constituted an unreasonable application of Graham.

Most

significantly, Virginia courts unreasonably ignored the plain

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language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id. Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.
I. On July 15, 2002, a Virginia state trial court found Petitioner guilty of rape and abduction. Petitioner committed the offenses on July 6, 1999, when he was sixteen years old. The court sentenced Petitioner to two terms of life imprisonment. Petitioner was ineligible for parole pursuant to Va. Code Ann. § 53.1-165.1, which abolished parole for individuals convicted of a felony committed after January 1, 1995. Petitioner did not appeal his conviction or sentence. In 2011, Petitioner filed a motion to vacate his sentence in state trial court. The motion argued that Graham rendered Petitioner’s life sentence invalid. In opposition, Respondents asserted that, notwithstanding Virginia’s abolition of parole, Petitioner’s life sentence did not violate Graham because
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Virginia allows for conditional release of “geriatric prisoners,” Va. Code Ann. § 53.1-40.01 (“Geriatric Release”).
At a hearing on August 9, 2011, the state trial court orally denied Petitioner’s motion to vacate. In rendering its decision, the trial court relied on the Supreme Court of Virginia’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), which held that Geriatric Release provides juveniles sentenced to life in prison a “meaningful opportunity for release” and therefore complies with Graham’s parole requirement. J.A. 157. Petitioner appealed the trial court’s decision to the Supreme Court of Virginia, which summarily denied his petition for appeal.
On June 19, 2012, Petitioner filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Virginia. A federal magistrate judge reviewed the petition and recommended that the district court deny it. LeBlanc v. Mathena, No. 2:12-cv-340, 2013 WL 10799406, at *1 (E.D. Va. July 24, 2013). Petitioner filed objections to the magistrate judge’s report. Finding the objections well-taken, the district court granted Petitioner’s habeas petition, holding that his state court adjudication was contrary to, and an unreasonable application of, Graham. LeBlanc v. Mathena, No. 2:12cv340, 2015 WL 4042175, at *9 (E.D. Va. July 1, 2015). In particular, the district court concluded
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that Geriatric Release does not offer juvenile offenders sentenced to life imprisonment, like Petitioner, the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” required by Graham. Id. at *9, *11–18. The district court further concluded that Geriatric Release did not comply with Graham’s dictate that state penal systems reflect the lesser culpability of juvenile offenders, explaining that Geriatric Release “treats children worse” than adult offenders. Id. at *14 (emphasis in original). Accordingly, the district court remanded Petitioner’s case to the state court for resentencing in accordance with Graham. Id. at *19.
Respondents filed a timely appeal, and the district court stayed its judgment pending resolution of that appeal.
II. A. The Virginia General Assembly established Geriatric Release in 1994--more than 15 years before the Supreme Court decided Graham--as part of its “truth-in-sentencing” reform package. J.A. 169. The primary goal of truth-in-sentencing reform was to close the gap between prisoners’ original sentences and the amount of time they actually served. Brian J. Ostrom et al., Truth-in-Sentencing in Virginia 17-20 (April 5, 2001), available at https://www.ncjrs.gov/pdffiles1/nij/grants/187677.pdf. The centerpiece of the reform package was the elimination of parole 6

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for all offenders who committed felonies on or after January 1,
1995. Id.
The statutory provision governing Geriatric Release, as
amended,1 provides, in its entirety:
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. The Parole Board shall promulgate regulations to implement the provisions of this section.
Va. Code Ann. § 53.1-40.01. Unlike with other components of the
truth-in-sentencing reform package,2 we have identified no
evidence in the contemporaneous legislative record speaking to
the General Assembly’s goal in enacting Geriatric Release or
providing guidance regarding the implementation of Geriatric
Release.
1 The original provision applied only to offenders who were ineligible for parole. A 2001 amendment expanded the provision to apply to all inmates.
2 The legislative history of the truth-in-sentencing reform package focuses on the abolition of parole, establishment of uniform sentencing guidelines and a sentencing commission, elimination of “good time” credits, and imposition of longer sentences for violent offenders. Commonwealth of Va. Comm’n on Sentencing & Parole Reform, Report of the Commission on Sentencing & Parole Reform to the Governor and General Assembly of Virginia, H. Doc. No. 18 (Dec. 23, 1994).
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The Virginia Parole Board is responsible for deciding whether to grant petitions for Geriatric Release. Section 53.140.01 directs the Parole Board to promulgate regulations necessary to implement the statute. Pursuant to that authority, the Parole Board established administrative procedures governing implementation of the Geriatric Release provision (the “Geriatric Release Administrative Procedures”).
The Geriatric Release Administrative Procedures set forth a two-stage review process for Geriatric Release petitions. At the “Initial Review” stage, the Parole Board reviews a prisoner’s petition--which must provide “compelling reasons for conditional release”--and the prisoner’s “central file and any other pertinent information.” J.A. 287. The Parole Board may deny the petition at the Initial Review stage based on a majority vote. Neither the statute nor the Geriatric Release Administrative Procedures states what constitute “compelling reasons for conditional release,” nor does either document require the Parole Board to consider any particular factors in conducting the Initial Review, nor does either document set forth any criteria for granting or denying a prisoner’s petition at the Initial Review stage.
If the Parole Board does not deny a petition at the Initial Review stage, the petition moves forward to the “Assessment Review” stage. As part of the Assessment Review, a Parole Board
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member or designated staff member interviews the prisoner. During that interview, the prisoner may present written and oral statements as well as any written material bearing on his case for parole. The interviewer then drafts a written assessment of the prisoner’s “suitability for conditional release” and, based on that assessment, recommends whether the Parole Board should grant the petition. J.A. 288. In order to grant Geriatric Release to a prisoner sentenced to life imprisonment, at least four members of the five-member Parole Board must vote in favor of release.
In engaging in the Assessment Review, Parole Board members should consider “[a]ll factors in the parole consideration process including Board appointments and Victim Input.” Id. The Virginia Parole Board Policy Manual includes a long list of “decision factors” to be considered in the parole review process. J.A. 297. These factors include: public safety, the facts and circumstances of the offense, the length and type of sentence, and the proposed release plan. The Parole Board also should consider certain characteristics of the offender, including “the individual’s history, physical and mental condition and character, . . . conduct, employment, education, vocational training, and other developmental activities during incarceration,” prior criminal record, behavior while incarcerated, and “changes in motivation and behavior.” J.A.
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297–99. Finally, the Parole Board should consider impressions gained from interviewing the prisoner as well as information from family members, victims, and other individuals.
B. There are several key ways in which Geriatric Release differs from Virginia’s parole system, which remains in place for prisoners who committed their offenses before January 1, 1995. The first--and most obvious--is the age limitation. In order to seek Geriatric Release, an inmate must be at least sixty years of age. By contrast, most parole-eligible inmates serving a life sentence will be considered for parole for the first time after serving fifteen years of their sentence. Va. Code Ann. § 53.1-151(C). Other prisoners will be considered for parole when they serve a certain percentage of their sentence. Id. § 53.1-151(A). Accordingly, whereas Petitioner would have been considered for parole after serving twenty years of his sentence, Petitioner cannot apply for Geriatric Release until roughly twenty years later. The second difference is that an inmate must actively petition for Geriatric Release once he or she becomes eligible, whereas the Parole Board automatically considers, on an annual basis, whether to release each parole-eligible inmate. A third difference is that, unlike with parole, the Parole Board may deny a petition for Geriatric Release at the Initial
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Review stage without considering any of the “decision factors” enumerated in the Parole Board Policy Manual. Indeed, unlike the parole system, which has established criteria that the Parole Board must consider in granting or denying parole, Geriatric Release affords the Parole Board unconstrained discretion to deny a petition for Geriatric Release at the Initial Review stage. Relatedly, in their petition, prisoners must “identify compelling reasons” why they should receive Geriatric Release, notwithstanding that the “compelling reasons” requirement has no statutory basis and that the Geriatric Release Administrative Procedures do not provide any guidance regarding what constitutes a “compelling reason.” J.A. 287. By contrast, there is no requirement that a parole-eligible inmate demonstrate “compelling reasons” in order to obtain parole.
Fourth, the Parole Board or its designee interviews prisoners undergoing parole review as a matter of course. By contrast, the Parole Board can deny a petition for Geriatric Release at the Initial Review stage “on a review of the record,” without interviewing the inmate. J.A. 287.
A final notable difference is that four members of the five-member Parole Board must approve Geriatric Release of inmates sentenced to life imprisonment. By contrast, only three members of the Parole Board must approve parole of paroleeligible prisoners.
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III. We review the district court’s decision to grant Petitioner’s habeas petition de novo. Richardson v. Branker, 668 F.3d 128, 138 (4th Cir. 2012). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which accords deference to final judgments of state courts, circumscribes our review. Nicolas v. Att’y Gen. of Md., 820 F.3d 124, 129 (4th Cir. 2016). Under AEDPA, a federal court may grant habeas relief to a state prisoner, like Petitioner, if the prisoner’s state court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding,” id. § 2254(d)(2). Respondents contend that the Virginia courts’ conclusion that Geriatric Release complies with Graham’s parole requirement amounted to a finding of fact, and therefore that the standard set forth in 28 U.S.C. § 2254(d)(2) applies. Federal courts review habeas petitions raising questions of law or mixed questions of law and fact under Section 2254(d)(1). Horn v. Quarterman, 508 F.3d 306, 312 (5th Cir. 2007); see also, e.g., Barnes v. Joyner, 751 F.3d 229, 246-52 (4th Cir. 2014) (analyzing habeas petition raising mixed question of law and
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fact under Section 2254(d)(1)). By contrast, Section 2254(d)(2) applies to questions of historical fact. Weaver v. Palmateer, 455 F.3d 958, 963 n.6 (9th Cir. 2006); Ouber v. Guarino, 293 F.3d 19, 27 (1st Cir. 2002) (“[T]he special prophylaxis of section 2254(d)(2) applies only to determinations of basic, primary, or historical facts.” (internal quotation omitted)).
Here, the Virginia courts’ evaluation of whether Geriatric Release complies with Graham’s parole requirement implicates questions of law, and therefore is subject to review under Section 2254(d)(1). See, e.g., Moore v. Biter, 725 F.3d 1184, 1191 (9th Cir. 2013) (holding that a state court decision was contrary to clearly established law when it held that Graham did not bar a juvenile nonhomicide offender’s sentence under which he would be eligible for parole in 127 years); Bunch v. Smith, 685 F.3d 546, 549-50 (6th Cir. 2012) (analyzing whether 89-year sentence was functional equivalent of life sentence for purposes of Graham under Section 2254(d)(1)). Therefore, we must determine whether the state court’s decision was “contrary to, or involved an unreasonable application of clearly established” Supreme Court law. 28 U.S.C. § 2254(d)(1).
In assessing a state prisoner’s habeas claims, we review the “last reasoned” state court decision. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); Grueninger v. Dir., Va. Dep’t of Corrs., 813 F.3d 517, 525 (4th Cir. 2016). “Unless a state-
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court opinion adopts or incorporates the reasoning of a prior opinion, AEDPA generally requires federal courts to review one state decision.” Wooley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012) (internal quotation omitted). However, “[i]f the last reasoned decision adopts or substantially incorporates the reasoning from a previous state court decision, we may consider both decisions to fully ascertain the reasoning of the last decision.” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (internal quotation omitted); Brian R. Means, Federal Habeas Manual § 3:7 (2016) (“[W]here the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous decision, it is acceptable for the federal court to look at both state court decisions to fully ascertain the reasoning of the last decision.”).
The Supreme Court of Virginia summarily affirmed the trial court’s oral denial of Petitioner’s motion to vacate. Accordingly, the trial court decision constitutes the last reasoned decision for purposes of our analysis. Nicolas, 820 F.3d at 129. The trial court relied on Angel’s reasoning regarding the Geriatric Release provision’s compliance with Graham’s parole requirement. Accordingly, we must consider both the trial court’s decision and Angel in determining whether Petitioner’s state court adjudication was “contrary to, or an
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unreasonable application of” Graham--the question to which we now turn.
IV. A. The Eighth Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII; Roper v. Simmons, 543 U.S. 551, 560 (2005). “To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to ‘the evolving standards of decency that mark the progress of a maturing society.’” Graham, 560 U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm, 463 U.S. 277, 284 (1983). Graham rests on a long line of Supreme Court decisions addressing the constraints imposed by the Eighth Amendment on the punishment of juvenile offenders. In Thompson v. Oklahoma, 487 U.S. 815, 838 (1988), the Supreme Court held that the Eighth Amendment prohibits the death penalty for offenders who committed their crimes before the age of sixteen. The Court grounded its decision on the principle “that punishment should be directly related to the personal culpability of the criminal defendant.” Id. at 834 (quoting California v. Brown, 479 U.S. 15

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538, 545 (1987)). “[A]dolescents as a class are less mature and responsible than adults,” the Court explained. Id. “Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.” Id. at 835. Accordingly, a juvenile’s transgression is “not as morally reprehensible as that of an adult.” Id. Because juvenile offenders are not as personally culpable as adult offenders, juvenile offenders should not receive punishments as severe as those inflicted on adult offenders, the Court held. Id. at 834.
In Roper v. Simmons, the Supreme Court again emphasized the unique characteristics of youth when it extended Thompson’s bar on the death penalty to all individuals who committed their offenses before the age of eighteen. 543 U.S. at 578. Like Thompson, the Roper Court highlighted juveniles’ “lack of maturity and underdeveloped sense of responsibility” and propensity for “reckless behavior.” Id. at 569 (citations omitted). Roper further noted that “the character of a juvenile is not as well formed as that of an adult” and juveniles’ “personality traits are more transitory, less fixed.” Id. at 570. As a result, “it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of
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irretrievably depraved character.” Id.

“Indeed, ‘[t]he

relevance of youth as a mitigating factor derives 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.’” Id. (quoting Johnson v.

Texas, 509 U.S. 350, 368 (1993)).

Against this backdrop, Graham held that “for a juvenile

offender who did not commit homicide the Eighth Amendment

forbids the sentence of life without parole.” 560 U.S. at 74.

The Court explained 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. (emphasis

added).

In reaching this conclusion, the Court again

highlighted the “lessened culpability” of juveniles, noting that

“developments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds. For

example, parts of the brain involved in behavior control

continue to mature through late adolescence.” Id. at 68.

Moreover, “[j]uveniles are more capable of change than are

adults, and their actions are less likely to be evidence of an

‘irretrievably depraved character’ than are the actions of

adults.” Id. (quoting Roper, 543 U.S. at 570).

Graham explained that life without parole is “the second

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most severe penalty permitted by law,” behind only the death penalty, because it “deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—-the remote possibility of which does not mitigate the harshness of the sentence.” Id. at 69–70 (citations omitted). If a juvenile is sentenced to life in prison without the possibility of parole, he or she has “no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Id. at 79.
Additionally, “[b]y denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability.” Id. at 74. Accordingly, the sentence of life without parole for a juvenile nonhomicide offender will always be “disproportionate” under the Eighth Amendment because it always relies on a judgment “made at the outset” that the defendant is incorrigible. Id. at 73. And while some juvenile offenders may ultimately prove to pose a risk to society for the rest of their lives, “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity” later in life. Id. at 73 (emphasis added).
Although Graham left it to “the State[s], in the first 18

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instance, to explore the means and mechanisms” to comply with

its dictates, id. at 75, the decision established at least three

minimum requirements for parole or early release programs for

juvenile nonhomicide offenders sentenced to life imprisonment,

like Petitioner.3

First, Graham held that such offenders must have the

opportunity “to obtain release based on demonstrated maturity

and rehabilitation.” Id. at 75 (emphasis added).

Put

differently, the juvenile offender must have a “chance to later

demonstrate that he is fit to rejoin society” and that “the bad

acts he committed as a teenager are not representative of his

true character.” Id. at 79. To that end, a parole or early

release system does not comply with Graham if the system allows

for the lifetime incarceration of a juvenile nonhomicide

offender based solely on the heinousness or depravity of the

offender’s crime. Id. at 75 (“[The Eighth Amendment] prohibit[s]

States from making the judgment at the outset that [juvenile

nonhomicide offenders] never will be fit to reenter society.”);

id. at 76 (stating that the Eighth Amendment prohibits courts

3 We address these three requirements because they are particularly relevant to the Geriatric Release program and Petitioner’s state court adjudication. We take no position on whether Graham established--clearly or otherwise--other minimum requirements for parole or early release programs for juvenile nonhomicide offenders sentenced to life imprisonment.
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“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’”

(quoting Roper, 543 U.S. at 572)).

Second, Graham held that the opportunity to obtain release

must be “meaningful,” which means that the opportunity must be

“realistic” and more than a “remote possibility.” Id. at 70, 75,

82.

Graham’s “meaningful[ness]” requirement reflects the

Supreme Court’s long-standing characterization of “[p]arole [a]s

a regular part of the rehabilitative process. Assuming good

behavior, it is the normal expectation in the vast majority of

cases.” Solem, 463 U.S. at 300-03. Because parole is the

“normal expectation,” it should be “possible to predict, at

least to some extent, when parole might be granted.” Id.

(holding that, for purposes of the Eighth Amendment, executive

clemency is not a substitute for parole because clemency is an

“ad hoc” process that provides inmates with nothing more than a

“bare possibility” of release). To that end, Graham held that

the availability of executive clemency did not satisfy the

“meaningful opportunity to obtain release” requirement. 560 U.S.

at 69-70.

Third, Graham held that a state parole or early release

program must account for the lesser culpability of juvenile

offenders: “An offender’s age is relevant to the Eighth

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Amendment, and criminal procedure laws that fail to take
defendants’ youthfulness into account at all would be flawed.”
Id. at 76; see also Miller v. Alabama, 132 S. Ct. 2455, 2465-66
(2012) (explaining that Graham’s “foundational principle” is
“that imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children”).4
Accordingly, a state parole or early release system that
subjects juvenile offenders to more severe punishments than
their adult counterparts necessarily violates Graham.
B.
With these three principles in mind--(1) that juvenile
nonhomicide offenders sentenced to life imprisonment must have
the “opportunity to obtain release based on demonstrated
maturity and rehabilitation,” (2) that this opportunity must be
“meaningful,” and (3) that the early release or parole system
4 The Supreme Court decided Miller after Petitioner’s statecourt adjudication. Although Petitioner may obtain relief only based on law clearly established by the Supreme Court as of the date of his adjudication, we may look to decisions post-dating his adjudication for guidance regarding the interpretation and application of clearly established Supreme Court precedent predating the state court adjudication. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522-23 (2003) (relying on post-adjudication opinion to “illustrat[e] . . . proper application” of clearly established precedent); Frazer v. South Carolina, 430 F.3d 696, 716 (4th Cir. 2005) (Motz, J., concurring) (“Where . . . a Supreme Court decision post-dating state collateral review . . . simply illustrates the appropriate application of Supreme Court precedent that pre-dates the state-court determination . . . , a federal court on habeas may consider the postdated opinion.”).
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must take into account the lesser culpability of juvenile
offenders--we must determine whether the conclusion of the trial
court and Angel that Geriatric Release complies with Graham’s
parole requirement was “contrary to, or an unreasonable
application of” Graham.5
1.
A state court adjudication is contrary to clearly
established law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of
law” or “if the state court confronts facts that are materially
5 It is important to note that this case does not present the question of whether a lengthy term-of-years sentence for a juvenile is the functional equivalent of life without parole under Graham. That question has thus far divided courts. Compare Bunch, 685 F.3d at 550 (holding that Graham did not clearly establish that an lengthy term-of-years sentence for a juvenile offender would violate the Eighth Amendment), Vasquez v. Commonwealth, 781 S.E.2d 920, 925 (Va. 2016) (holding that Graham did not address term-of-years sentences, even if they exceed the prisoner’s life expectancy), and State v. Brown, 118 So. 3d 332, 342 (La. 2013) (concluding that Graham did not reach term-of-years sentences), with Moore, 725 F.3d at 1186 (holding that Graham clearly prohibited a sentence under which a juvenile offender who would not be eligible for parole until age 144), Casiano v. Comm’r of Corr., 115 A.3d 1031, (Conn. 2015) (holding 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 chance for reconciliation with society, no hope’” (quoting Graham, 560 U.S. at 79)), Bear Cloud v. State, 334 P.3d 132, 136, 141–42 (Wyo. 2014) (holding that a sentence that would keep the defendant in prison until age sixty-one was the functional equivalent of a life sentence), and State v. Null, 836 N.W.2d 41, 72 (Iowa 2013) (holding that “Miller's principles are fully applicable to a lengthy term-of-years sentence”).
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indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite] result.” Williams v. Taylor, 529 U.S. 362, 405 (2000); Barbe v. McBride, 521 F.3d 443, 453-54 (4th Cir. 2006).
Here, Angel, upon which the state trial court entirely relied, correctly identified Graham as controlling and recognized each of the three minimum requirements set forth above for a parole or early release program for juvenile nonhomicide offenders sentenced to life imprisonment. In particular, Angel repeatedly stated that Graham requires that juvenile offenders be afforded an opportunity for “release based on maturity and rehabilitation.” 704 S.E.2d at 402. Likewise, the Angel court acknowledged that the opportunity for release must be “meaningful.” Id.6 And Angel recognized that Graham demands that state penal systems account for the “limited moral culpability of juvenile offenders.” Id. at 401. Accordingly, Petitioner’s state court adjudication was not “contrary to” Graham. Bell v. Cone, 535 U.S. 685, 698 (2002) (holding that
6 Notwithstanding their contention that Graham “does not address what type of parole is necessary to meet its standard,” Respondents concede that Graham held that juvenile nonhomicide offenders sentenced to life imprisonment must have the opportunity to “obtain release based on maturity and rehabilitation” and that this opportunity must be “meaningful.” Appellants’ Br. at 37, 49. Accordingly, even Respondents concede that Graham establishes minimum requirements for parole or early release programs.
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state court adjudication that “correctly identified the principles announced [by the Supreme Court] as those governing the analysis . . . was [not] contrary to . . . clearly established law”).
2. Petitioner, therefore, may obtain relief only if his state court adjudication amounted to an “unreasonable application” of Graham. A state court decision amounts to an “unreasonable application” of clearly established Supreme Court precedent if it “‘identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts’ of the prisoner’s case.” Grueninger, 813 F.3d at 524 (quoting Wiggins, 539 U.S. at 520). To satisfy this standard, the state court adjudication must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). That being said, to reach a decision that constitutes an “unreasonable application” of Supreme Court precedent, a state court need not address an identical factual or legal scenario to that previously addressed by the Supreme Court: “even a general standard may be applied in an unreasonable manner.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007).
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For several reasons, we agree with Petitioner that his state court adjudication constituted an “unreasonable application” of Graham.
First, Geriatric Release does not necessarily provide Petitioner--or any other inmate, juvenile or otherwise--the opportunity to obtain release “based on demonstrated maturity and rehabilitation,” as Graham requires. In concluding that Geriatric Release satisfied this requirement, Angel emphasized that “if the prisoner meets the qualifications for consideration contained in the statute, the factors used in the normal parole consideration process apply to conditional release decisions under this statute.” 704 S.E.2d at 402. Assuming arguendo the “decision factors” used in the normal parole consideration process adequately account for a juvenile offender’s “maturity and rehabilitation,”7 this conclusion ignores the Parole Board’s authority to deny Geriatric Release for any reason--and without consideration of the “decision factors”--and therefore is objectively unreasonable.
7 The dissent incorrectly asserts that we conclude that the parole “decision factors” do not account for a juvenile offender’s “maturity and rehabilitation.” Post at 19. To the contrary, because the Parole Board may deny a juvenile offender Geriatric Release at the Initial Review stage without considering the “decision factors,” we need not--and thus do not--decide whether the “decision factors” adequately account for a juvenile offender’s “maturity and rehabilitation,” as Graham requires.
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Under the Geriatric Release Administrative Procedures, the Parole Board must consider the “decision factors”--the “factors used in the normal parole consideration process”--during the Assessment Review stage. But the Parole Board may deny a petition for Geriatric Release for any reason--without consideration of the “decision factors”--at the Initial Review stage. It was objectively unreasonable to conclude that Geriatric Release satisfied Graham’s requirement that juvenile offenders be able to obtain release “based on maturity and rehabilitation,” when, under the plain and unambiguous language of the governing procedures, the Parole Board can deny every juvenile offender Geriatric Release for any reason whatsoever.8
Like Respondents, the dissent seeks to insulate Angel from collateral review by claiming that “the Virginia Supreme Court’s conclusion that Virginia law requires consideration of ‘normal parole factors’ such as rehabilitation and maturity is one of state law and thus is binding on this court.” Post at 19-20. But, contrary to Respondents’ and the dissent’s
8 Because the Geriatric Release Administrative Procedures do not require consideration of maturity and rehabilitation--or any other factors--we need not, and thus do not, decide whether a statute or regulation requiring only that a state decision-maker consider “maturity and rehabilitation” satisfies Graham’s requirement that juvenile offenders have the opportunity to obtain release “based on demonstrated maturity and rehabilitation.” 560 U.S. at 75 (emphasis added).
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characterization, Angel does not hold that the Geriatric Release Administrative Procedures “require” consideration of the “decision factors.” Rather, Angel states that the “decision factors” “apply to conditional release decisions,” but never addresses whether--much less holds that--the Parole Board must consider the “decision factors” in reviewing every petition for Geriatric Release. 704 S.E.2d at 402 (emphasis added).
Indeed, by reading Angel as “requir[ing]” consideration of the “decision factors,” the dissent puts Angel into direct conflict with the plain language of the Geriatric Release Administrative Procedures, which permit the Parole Board to deny a petition for Geriatric Release at the Initial Review stage for any reason, and without consideration of the “decision factors.” See supra Part II. But in predicting how state courts would resolve an unsettled issue of state law, we must reject, if at all possible, predictions that would ascribe absurd or irrational conclusions to state courts. See, e.g., Pena v. Greffet, 110 F. Supp. 3d 1103, 1134 (D.N.M. 2015) (refusing to predict that state court would resolve unsettled issue of state law in a way that “would produce absurd results”); Union Cnty. Ill. v. MERSCORP, Inc., 920 F. Supp. 2d 923, 931 (S.D. Ill. 2013) (adopting prediction of state law that was “[t]he only non-absurd, non-inconvenient way to read the language of the law itself and the language of Illinois appellate courts”); Jakomas
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v. McFalls, 229 F. Supp. 2d 412, 424 (W.D. Pa. 2002) (rejecting

plaintiff’s contention that state court would interpret state

law in a way that would lead to an “absurd result”).

Accordingly, we refuse to read Angel’s description of the

Geriatric Release Administrative Procedues as “apply[ing]” the

“decision factors” as requiring that the Parole Board consider

those factors at the Initial Review stage, as the dissent

proposes.

Contrary to the dissent’s position, Angel’s error is not

that it irrationally interpreted the Geriatric Release

Administrative Procedures as requiring consideration of the

“decision factors.” Rather, Angel unreasonably concluded that

the potential for consideration of maturity and rehabilitation

at the Assessment Review stage is adequate to comply with

Graham’s requirement that States afford juvenile nonhomicide

offenders a “meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation,” 569 U.S. at 75, when

the Procedures allow the Parole Board to deny Geriatric Release

for any reason at the Initial Review stage and therefore provide

no guarantee that the Parole Board will consider a juvenile

offender’s maturation and rehabilitation--a question of federal

constitutional law.

Indeed, under the Geriatric Release

Administrative Procedures, the Parole Board could allow

Petitioner to die in prison without ever having considered

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whether Petitioner had matured or was rehabilitated. Graham does not countenance such a possibility. 560 U.S. at 74, 79 (rejecting sentences of life without parole for juvenile nonhomicide offender because such a penalty “guarantee[s] [the offender] will die in prison without any meaningful opportunity to obtain release” and “foreswears altogether the rehabilitative ideal”).
Geriatric Release also fails to comply with Graham’s requirement that juvenile offenders have the opportunity to obtain release “based on demonstrated maturity and rehabilitation” because it allows for the lifetime incarceration of a juvenile nonhomicide offender based solely on the heinousness or depravity of the offender’s crime. Data provided by the Virginia Criminal Sentencing Commission shows that, to date, 95.4 percent of the denials of Geriatric Release have been based on the “serious nature of the crime.” J.A. 178.9

9 The Sentencing Commission’s 95.4 percent figure reflects

adjudications of Geriatric Release petitions filed by adult

offenders only.

There is no data available regarding

adjudications of Geriatric Release petitions by juvenile

offenders because no juvenile offender sentenced to life

imprisonment without parole in Virginia has reached the age of

sixty. Respondents maintain the absence of data on the

adjudication of Geriatric Release petitions by juvenile

offenders precludes reliance on this data. We agree with the

district court, however, that “[c]ompelling 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

(Continued)

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Accordingly, the Parole Board denies Geriatric Release petitions in nearly every case on grounds that the petitioners’ “crimes demonstrate an ‘irretrievably depraved character’”--directly contrary to Graham’s instruction that state penal regimes take into account a juvenile nonhomicide offender’s greater “capacity for change” relative to his adult counterparts by giving such offender the opportunity “to demonstrate that the bad acts he committed as a teenager are not representative of his true character.” 560 U.S. at 73, 79.
For this reason, the dissent misconstrues Graham when it appeals to the conduct giving rise to Petitioner’s conviction and Petitioner’s conduct at sentencing to justify its position. Post at 5-6. Rather, Graham forbids States from making a “judgment . . . at the outset” that a juvenile offender is “incorrigible” because juvenile offenders have a “capacity for change.” 560 U.S. at 73, 79.
A second reason Petitioner’s adjudication was objectively unreasonable is that the Geriatric Release program does not offer juvenile nonhomicide offenders the “meaningful” opportunity for release traditionally afforded by parole.
statistics related to geriatric release perpetuates the injustice that Graham sought to correct.” LeBlanc, 2015 WL 4042175, at *17.
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Tellingly, when analyzing whether Geriatric Release complied with Graham, the Angel court said that “the effect of [the juvenile defendant’s life] sentences is that [he] will spend the rest of his life confined in the penitentiary.” 704 S.E.2d at 401 (emphasis added). The Supreme Court of Virginia, therefore, expected the defendant in Angel--who was 17 when he committed his offenses and less than 4 years older when the Supreme Court of Virginia decided his appeal--would spend his life jail, notwithstanding the availability of Geriatric Release and that the defendant had had only four years to “grow[] and matur[e].” Graham, 560 U.S. at 73. But under clearly established Supreme Court precedent--precedent repeatedly relied on by Graham, id. at 70--“parole” should be the “normal expectation in the vast majority of cases,” Solem, 463 U.S. at 300-03. It was objectively unreasonable, therefore, for the Supreme Court of Virginia to take the position that a penal regime under which it concedes early release is the exception, rather than the expectation, complies with Graham’s meaningfulness requirement.
Relatedly, Geriatric Release also fails to satisfy the “meaningful” opportunity requirement because there are no standards governing the denial of Geriatric Release petitions. In the context of determining whether a life sentence without parole complied with the Eighth Amendment, the Supreme Court explained that “[t]he law generally specifies when a prisoner
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will be eligible to be considered for parole, and details the
standards and procedures applicable at that time,” allowing
prisoners “to predict, at least to some extent, when parole
might be granted.” Id. at 300-01. By contrast, mechanisms that
allow a decision-maker to grant or deny early release “for any
reason without reference to any standards,” offer inmates
nothing more than a “bare possibility” of release and therefore
do not constitute “parole” for purposes of the Eighth
Amendment.10 Id. at 301.
As explained above, the Geriatric Release statute does not
provide the Parole Board with any guidance regarding what
factors it must consider in deciding whether to release a
geriatric prisoner. See supra Part II.A. And, as Petitioner
correctly notes, the Geriatric Release Administrative Procedures
10 The dissent claims that Graham only “requir[es] that the parole board have an ability to consider . . . evidence [of maturity and rehabilitation] in deciding whether the offender should be released.” Post at 22 (emphasis added). Graham’s holding that executive clemency does not comply with the “meaningful opportunity for release” requirement belies the dissent’s assertion. In particular, notwithstanding that an executive has unfettered discretion to grant clemency--and therefore is “able” to consider an offender’s rehabilitation and maturity in deciding whether to grant clemency--executive clemency does not comply with Graham’s parole requirement because it is an “ad hoc” process without any governing standards. 560 U.S. at 69-70 (citing Solem, 463 U.S. at 300-01). For purposes of Graham, the key issue is not whether the Parole Board is “able” to consider a juvenile offender’s rehabilitation and maturity--it is whether the Parole Board must consider rehabilitation and maturation. See supra.
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authorize the Parole Board to deny a petition for Geriatric Release at the Initial Review stage for any reason. Without any statutory or administrative guidance regarding what constitutes a “compelling reason” warranting release or setting forth the criteria for denying a juvenile offender’s petition for Geriatric Release at the Initial Review stage, it is impossible to predict whether and when--if at all--the Parole Board will grant Geriatric Release. Accordingly, Geriatric Release does not afford juvenile nonhomicide offenders the “meaningful” opportunity to obtain release to which Graham entitles them. See Graham, 560 U.S. at 69-70 (holding that executive clemency, which the Supreme Court has recognized lacks governing standards, did not constitute “meaningful opportunity to obtain release” for juvenile offenders sentenced to life imprisonment).
Third, the state courts unreasonably concluded that the Geriatric Release program complies with Graham’s dictate that state punishment regimes account for the lesser culpability of juvenile offenders. In particular, even if the Parole Board was required to consider the “decision factors” in deciding whether to grant a petition for Geriatric Release--which it is not--a prisoner’s youth at the time of his offense is not among those decision factors. Therefore, neither the Geriatric Release statute nor the Geriatric Release Administrative Procedures
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require that the Parole Board consider the “special mitigating force of youth,” Thompson, 487 U.S. at 834, as Graham requires.
More significantly--and as the district court correctly noted--Geriatric Release treats juvenile offenders sentenced to life imprisonment “worse” than adult offenders receiving the same sentence because juvenile offenders “must serve a larger percentage of their sentence than adults do before eligibility to apply for geriatric release.” LeBlanc, 2015 WL 4042175, at *14. For example, under Geriatric Release, a fifty-year-old sentenced to life in prison will be eligible to apply for Geriatric Release in ten years, but a sixteen-year-old will have to serve forty-four years before receiving his first opportunity to apply for Geriatric Release. Graham emphasized that a life sentence is “especially harsh” for a juvenile offender relative to an adult offender because, under such a sentence, the “juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.” 560 U.S. at 70. Given that (1) the Supreme Court specifically held that sentencing systems that require juvenile offenders to serve more years and/or a greater percentage of their lives relative to adult offenders violate the Eighth Amendment’s proportionality principle and that (2) Geriatric Release subjects juvenile offenders to longer--and proportionately longer--sentences, it was objectively
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unreasonable to conclude that Geriatric Release complied with Graham.
3. The dissent does not dispute that the Geriatric Release Administrative Procedures permit the Parole Board to deny a petition for Geriatric Release for any reason at the Initial Review stage, without consideration of the “decision factors,” post at 21-22, contrary to Graham’s holding that juvenile nonhomicide offenders sentenced to life imprisonment must have an opportunity “to obtain release based on demonstrated maturity and rehabilitation,” 560 U.S. at 75 (emphasis added). And the dissent does not dispute that Geriatric Release subjects juvenile offenders, on average, to longer—-and proportionately longer—-sentences, post at 23, contrary to Graham’s dictate that state penal regimes account for the lesser culpability of juvenile offenders, 560 U.S. at 76. Nonetheless, the dissent maintains that Petitioner is not entitled to relief because we fail to afford his state court adjudication the level of deference Section 2254(d)(1) requires, as the Supreme Court interpreted that provision in Harrington v. Richter, 562 U.S. 86 (2011). We disagree. In Harrington, the petitioner claimed that his state court adjudication amounted to an unreasonable application of the test for ineffective assistance of counsel set forth in Strickland v.
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Washington, 466 U.S. 668 (1984). Harrington, 562 U.S. at 105. In rejecting the petition, the Supreme Court explained that “[t]he standards created by Strickland and § 2254(d) are both ‘highly deferential,’ . . . and when the two apply in tandem, review is ‘doubly’ so . . . .” Id. at 105 (quoting Strickland, 466 U.S. at 689; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Notably, Harrington further explained that “evaluating whether a rule application was unreasonable [for purposes of Section 2254(d)(1)] requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Id. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Court held that the Strickland standard “is a general one, so the range of reasonable applications is substantial.” Id. at 105 (citing Knowles, 556 U.S. at 123). This echoes the Court’s earlier pronouncement in Yarborough, upon which the dissent also relies: “If a legal rule is specific . . . [a]pplications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment.” 541 U.S. at 664; see post at 13. Thus, determining whether a state court’s decision was “unreasonable” for purposes of Section 2254(d)(1)
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depends on the specificity of the constitutional rule the state court applied.
A court applying Strickland must determine two things: that the defendant’s counsel’s representation “fell below an objective standard of reasonableness,” and that the deficient performance was “prejudicial to the defense.” 466 U.S. at 687– 91. By contrast, Graham set forth a categorical rule barring sentences of life without parole for juvenile nonhomicide offenders. 560 U.S. at 77–79. And Graham clearly established that parole or early release programs for such offenders must (1) provide an opportunity to obtain release “based on demonstrated maturity and rehabilitation” and (2) account for the lesser culpability of juvenile offenders. See supra Part III.A. The Court characterized these minimum requirements as establishing a “boundar[y]” on state courts’ authority to make “case-by-case” sentencing determinations. 560 U.S. at 77. Accordingly, Graham’s categorical rule and its minimum requirements for parole or early release programs do not afford state courts the same “leeway” that the “reasonableness” and “prejudice” components of Strickland permit. Indeed, the dissent misconstrues Harrington when it affords the same “doubly” deferential review to Petitioner’s state court adjudication as federal courts apply in reviewing state court decisions applying Strickland.
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Contrary to the dissent, we do not engage in de novo review. Rather, we hold that the Supreme Court of Virginia unreasonably applied Graham when it acknowledged Graham’s minimum requirements for parole or early release programs for juvenile nonhomicide offenders sentenced to life imprisonment but concluded that Geriatric Release—-which permits the Parole Board to deny petitions for Geriatric Release without ever considering a petitioner’s maturity or rehabilitation and which treats juvenile offenders worse than adult offenders--complied with those requirements.
V. Nevertheless, Respondents and the dissent seek refuge in Supreme Court’s statement that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with Graham’s requirements. Appellants’ Br. at 24, 38, 42-43; post at 2. According to Respondents and the dissent, this single sentence effectively immunized Petitioner’s sentence--and those of all other juvenile nonhomicide offenders sentenced to life imprisonment eligible for any form of early release other than executive clemency--from collateral review. But the Supreme Court’s proper regard for States’ independent judgment regarding how best to operate their penal systems does not, “[e]ven in the context of federal habeas, . . . imply abandonment or abdication of judicial review.” Miller-
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El v. Cockrell, 537 U.S. 322, 340 (2003). This is particularly true when, as here, the Supreme Court clearly sets forth minimum constitutional requirements to guide state courts’ and policymakers’ decisions--requirements that the Supreme Court of Virginia readily determined from the plain language of Graham.
In sum, we hold that notwithstanding its recognition of Graham’s “governing legal principles,” the Supreme Court of Virginia unreasonably concluded that Geriatric Release--a program that predated Graham by more than 15 years, that permits the Parole Board to deny release for any reason whatsoever, and that treats juvenile offenders worse than adult offenders-complies with Graham’s parole requirement. Accordingly, we affirm the district court’s decision and remand so that the Petitioner can be resentenced in accordance with Graham and the Eighth Amendment.
AFFIRMED
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NIEMEYER, Circuit Judge, dissenting:

In affirming the grant of Dennis LeBlanc’s habeas petition

brought under 28 U.S.C. § 2254, the majority holds that the

Virginia Supreme Court concluded unreasonably that Virginia’s

geriatric release program provided a meaningful opportunity for

release to juveniles and therefore satisfied the requirements of

Graham v. Florida, 560 U.S. 48 (2010).

Graham forbids

sentencing juveniles to life in prison without parole for

nonhomicide crimes. In reaching its conclusion, the majority

relies simply on its expressed disagreement with the Virginia

Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d

386 (Va. 2011), and effectively overrules it. The Virginia

court’s opinion, however, is demonstrably every bit as

reasonable as the majority’s opinion in this case and should be

given deference under § 2254(d)(1).

After 16-year-old LeBlanc raped a 62-year-old woman in

Virginia Beach, Virginia, in 1999, he was convicted in the

Virginia Beach Circuit Court of abduction and rape. The court

sentenced him in 2003 to life imprisonment on each count. While

Virginia had, in 1994, abolished traditional parole for felony

offenders, see Va. Code Ann. § 53.1-165.1, it had at the same

time adopted a “geriatric release” program that allows for the

conditional release of inmates who serve at least 10 years of

their sentence and reach the age of 60, see id. § 53.1-40.01.

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In 2010, the U.S. Supreme Court handed down its decision in Graham, where it held that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 560 U.S. at 74. The Court explained that a State must provide this class of juvenile offenders “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” but that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance.” Id. at 75.
In its first application of Graham, the Virginia Supreme Court held that the factors Virginia applies in considering candidates for geriatric release were the same as “the factors used in the normal parole consideration process” and that, while Virginia’s geriatric release program had “an age qualifier,” it nonetheless afforded inmates, including juvenile offenders, “the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Angel, 704 S.E.2d at 402 (quoting Graham, 560 U.S. at 75).
After Angel had been decided, LeBlanc filed a motion in the Virginia Beach Circuit Court to vacate his sentence as invalid under Graham. The Circuit Court denied his motion, relying on Angel to conclude that Virginia had “an appropriate mechanism in place” to enable LeBlanc “to receive some form of parole.” But when LeBlanc sought federal habeas relief under 28 U.S.C.
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§ 2254, the district court granted LeBlanc’s petition, concluding, contrary to the Virginia court’s decision, that Virginia’s geriatric release program fell short of Graham’s requirements.
In now affirming, the majority unfortunately fails to respect, in any meaningful way, the deference Congress requires federal courts to give to state court decisions on postconviction review under § 2254. Under even a loose application of the governing standard in § 2254(d), a reviewing federal court would be constrained to conclude that the Virginia Beach Circuit Court’s ruling was not contrary to or an unreasonable application of Graham. See 28 U.S.C. § 2254(d)(1). To hold otherwise would require finding that the Virginia Supreme Court’s decision in Angel, as well as the Virginia Beach Circuit Court’s decision relying on it, amounted to an “extreme malfunction in the state criminal justice system.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
To reach its conclusion that Virginia’s geriatric release program does not provide juveniles with a meaningful opportunity to obtain release, the majority conducts its own de novo review of the program, concluding that the program lacks “governing standards” for release. The majority, however, fails to recognize that our task on a § 2254 habeas petition is not to evaluate state parole systems de novo but rather to determine
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whether the Virginia Supreme Court’s evaluation of its own program was an unreasonable application of Graham, see 28 U.S.C. § 2254(d)(1), which it clearly was not. Graham held that the Eighth Amendment forbids States from determining, at the time of sentencing, that a juvenile offender who did not commit a homicide “never will be fit to reenter society,” 560 U.S. at 75 (emphasis added), and that such offenders must have “a chance to demonstrate growth and maturity,” id. at 73. Analyzing the sufficiency of Virginia’s geriatric release program under Graham, the Virginia Supreme Court reasonably concluded that the program, which employs the same “factors used in the normal parole consideration process,” provides nonhomicide juvenile offenders with “the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Angel, 704 S.E.2d at 402 (quoting Graham, 560 U.S. at 75). While the majority may disagree with the Virginia Supreme Court’s conclusion, the fact that it was reasonable precludes LeBlanc from obtaining relief under § 2254.
Moreover, beyond this case, the majority’s approach will encourage federal courts to scrutinize state policies and parole determinations under similar systems, a result that Congress clearly intended to forestall when it imposed the restrictions stated in § 2254. Indeed, the Supreme Court also sought to avoid this result by explicitly leaving the application of
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Graham to the States. See Graham, 560 U.S. at 75 (noting that it is for the State “to explore the means and mechanisms for compliance”).
At bottom, when applying the prescribed standards to evaluate the Virginia court’s application of Graham, it is clear that LeBlanc’s petition for a federal writ of habeas corpus must be denied. I now address his petition under those standards.
I During the morning of July 6, 1999, Dennis LeBlanc, who was at the time 16 years old, asked a 62-year-old woman, who was walking home from a grocery store, for a cigarette. After the woman told him that she did not smoke, LeBlanc pushed her down, dragged her to nearby bushes, raped her, and stole her purse. When police were later able to match LeBlanc’s DNA with that of the sperm sample taken from the woman, LeBlanc was charged and convicted in the Virginia Beach Circuit Court of rape, in violation of Virginia Code § 18.2-61, and abduction with intent to defile, in violation of Virginia Code § 18.2-48. He was sentenced to life imprisonment on each count in March 2003. The court noted that “the two offenses have to be some of the most serious charges I’ve ever heard about.” When imposing life imprisonment, the court did not mention parole, as traditional parole had been abolished in 1994 when the geriatric release
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program was adopted.∗ In response to the sentence given, LeBlanc told the court twice, “F--k you.”
More than seven years after LeBlanc’s sentencing, the Supreme Court decided Graham, holding for the first time that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” 560 U.S. at 74 (emphasis added). The Court explained that while “[a] State [was] not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime,” it was required to provide the juvenile offender with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75. The Court, however, directed that “[i]t is for the State, in the first instance, to explore the means and mechanisms for compliance” with that command. Id.
After the Graham decision had been handed down, the Virginia Supreme Court considered whether Virginia’s geriatric release program satisfied Graham’s requirements, and it held that the program did so. See Angel, 704 S.E.2d at 402. More specifically, the court explained that Virginia’s geriatric
∗ The majority claims that LeBlanc was sentenced to “life imprisonment without parole,” ante at 3 (emphasis added), but its statement begs the question. LeBlanc was sentenced simply to life imprisonment, and, at the time, his sentence allowed for the possibility of release under Virginia’s geriatric release program, leaving the question whether the program functions as a form of parole.
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release program, as set forth in Virginia Code § 53.1-40.01, allows for the conditional release of inmates when they reach age 60 and have served 10 years and that “the factors used in the normal parole consideration process” apply to such determinations. Id. The court concluded that, “[w]hile [the geriatric release program] has an age qualifier, it provides . . . the ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Id. (quoting Graham, 560 U.S. at 75).
In May 2011, several months after Angel was decided, LeBlanc filed a motion in the Virginia Beach Circuit Court to vacate his life sentence as invalid under Graham. He contended that Angel was wrongly decided and that he did not indeed have a meaningful opportunity for release. The Circuit Court, however, denied LeBlanc’s motion, explaining:
[The] Supreme Court of Virginia has already looked at this issue in the Angel case and determined that there was an appropriate mechanism in place . . . for a defendant to receive some form of parole as enunciated in [Graham], and they denied Mr. Angel’s appeal. . . . The court feels and finds and is so ordering that there is an appropriate mechanism in place, that the sentence rendered back in 2003 for Mr. LeBlanc . . . in which the defendant received two life sentences . . . was the appropriate sentence . . . . (Emphasis added). The Virginia Supreme Court summarily denied LeBlanc’s petitions for appeal and for rehearing.
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LeBlanc filed this federal habeas petition pursuant to § 2254, contending again that the Virginia Supreme Court had wrongly decided Angel and that, based on statistics that he had presented to the state court, he had only a “remote possibility of release,” which did not amount to the “meaningful opportunity” for release required by Graham. A magistrate judge recommended dismissing LeBlanc’s petition, but the district court disagreed and granted the petition, ordering that the Virginia Beach Circuit Court resentence LeBlanc. The district court concluded that “the state court’s decision was both contrary to, and an unreasonable application of, clearly established federal law set forth in Graham,” explaining that “[t]here is no possibility that fairminded jurists could disagree that the state court’s decision conflicts with[] the dictates of Graham.” The court noted further that the geriatric release program “falls far short of the hallmarks of compassion, mercy and fairness rooted in this nation’s commitment to justice.”
From the district court’s judgment, the respondents -- the Commonwealth of Virginia and Randall Mathena, the Warden of Red Onion State Prison (collectively herein, the “Commonwealth” or “Virginia”) -- filed this appeal.
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II The operative state court decision for our review is the decision of the Virginia Beach Circuit Court. See Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 525 (4th Cir. 2016) (“‘look[ing] through’” the Virginia Supreme Court’s summary refusal to review the defendant’s appeal and “evaluat[ing] the Circuit Court’s reasoned decision”). That decision concluded that Virginia’s geriatric release program provides an “appropriate mechanism” for implementing Graham. The Circuit Court relied on the Virginia Supreme Court’s opinion in Angel, which applied Graham and concluded that Virginia’s geriatric release program, which uses the “normal” parole factors for determining release, provided “the ‘meaningful opportunity to obtain released based on demonstrated maturity and rehabilitation’ required by the Eighth Amendment.” Angel, 704 S.E.2d at 402 (quoting Graham, 560 U.S. at 75). Faced with the district court’s contrary conclusion, we must decide whether the Circuit Court’s decision “was contrary to, or involved an unreasonable application of,” Graham, 28 U.S.C. § 2254(d)(1).
A First, to satisfy the requirement of § 2254(d)(1) that the state court decision be shown to be “contrary to” Graham, LeBlanc would have to show (1) that the state court “applie[d] a
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rule different from the governing law set forth in [Supreme Court] cases,” or (2) that it decided this case “differently than [the Supreme Court] [has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694 (2002). Therefore, “a run-of-the-mill state-court decision applying the correct legal rule from [Supreme Court] cases to the facts of a prisoner’s case would not fit comfortably within [the] ‘contrary to’ clause.” Williams v. Taylor, 529 U.S. 362, 406 (2000).
In this case, no one can seriously argue that the Virginia Beach Circuit Court failed to correctly identify Graham as stating the applicable legal rule. In denying LeBlanc’s motion to vacate his sentence, the Circuit Court specifically discussed Graham, noting how “the U.S. Supreme Court in rendering its decision gave the court[s] guidelines to deal with defendants who were juveniles at the time of their offenses.” Because the Circuit Court operated under the correct U.S. Supreme Court rules and did not reach an opposite conclusion from the Supreme Court on a question of law, the argument that the Virginia Beach Circuit Court produced a decision “contrary to” Graham can survive only if the facts of Graham were “materially indistinguishable” from LeBlanc’s case. Bell, 535 U.S. at 694. But LeBlanc cannot make this showing either.
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Graham involved a juvenile offender convicted in Florida for a nonhomicide crime, who was sentenced to life in prison without any possibility of parole. As such, his sentence:
guarantee[d] he will die in prison without any meaningful opportunity to obtain release, no matter what he might do to demonstrate that the bad acts he committed as a teenager [were] not representative of his true character, even if he [were to] spend[] the next half century attempting to atone for his crimes and learn from his mistakes. 560 U.S. at 79. Because Florida had abolished its parole system, the life sentence gave Graham “no possibility of release unless he [was] granted executive clemency.” Id. at 57 (emphasis added). The Court noted, however, that executive clemency provided Graham only a “remote possibility” of release, id. at 70, and that Florida had effectively “denied him any chance to later demonstrate that he [was] fit to rejoin society,” id. at 79. In these circumstances, the Court held that the Eighth Amendment prohibits the imposition of a sentence of life without the possibility of parole for juvenile offenders who commit nonhomicide crimes. Id. at 74. LeBlanc’s case differs materially. Unlike Florida law before Graham, Virginia’s geriatric law affords a juvenile sentenced to life imprisonment some opportunity for release. The geriatric law provides in relevant part: Any person serving a sentence imposed upon a conviction for a felony offense . . . who has reached the age of sixty or older and who has served at least
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ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this section. Va. Code Ann. § 53.1-40.01. And the Virginia Supreme Court -the ultimate authority on Virginia law -- has construed “[t]he regulations for conditional release under [§ 53.1-40.01] [to] provide that if the prisoner meets the qualifications for consideration contained in the statute, the factors used in the normal parole consideration process apply to conditional release decisions under this statute.” Angel, 704 S.E.2d at 402 (emphasis added). Thus, LeBlanc cannot show that the facts in Graham, where the prisoner enjoyed no opportunity for release outside of clemency, are materially indistinguishable from the facts of this case, where LeBlanc has an opportunity to be released by the Parole Board.
B Second, LeBlanc is also unable to demonstrate that the decision by the Virginia Beach Circuit Court, applying Angel, was an “unreasonable application of” Graham. See 28 U.S.C. § 2254(d)(1). To satisfy this requirement, LeBlanc would have to show that, even “if the state court identifie[d] the correct governing legal principle from [Supreme Court] decisions,” it “unreasonably applie[d] that principle to the facts of the . . . case.” Williams, 529 U.S. at 365. And to show that the state
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court unreasonably applied governing legal principles, he would have to show that the state court’s decision was “‘objectively unreasonable,’” rather than “merely wrong” or involving “clear error.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).
To emphasize the difficulty of meeting this standard, the Supreme Court has said that a prisoner would have to show “that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103; see also id. at 101 (“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision” (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))). Not surprisingly, the rare decision finding § 2254(d)(1) satisfied typically arises from the misapplication of a long-established Supreme Court standard. See, e.g., Rompilla v. Beard, 545 U.S. 374, 389 (2005) (finding it was objectively unreasonable for the state court to conclude that, under Strickland v. Washington, 466 U.S. 668 (1984), capital defense lawyer’s failure to consult prior conviction file that was certain to contain aggravating evidence was not
52

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ineffective assistance); Wiggins v. Smith, 539 U.S. 510, 527-28 (2003) (similar for file containing mitigating evidence).
In this case, after the Virginia Beach Circuit Court correctly identified Graham as the governing law, it applied that decision to the facts of LeBlanc’s case. In doing so, the Circuit Court considered the Graham requirement that States must provide a mechanism that affords a juvenile sentenced to life imprisonment “a meaningful opportunity for release.” Since the Graham Court stated that its holding applied only to juvenile offenders convicted of a nonhomicide crime and sentenced to life imprisonment without parole, Graham, 560 U.S. at 75, and since the Virginia Supreme Court had held that the geriatric release program employed normal parole factors, the Circuit Court reasonably concluded that LeBlanc’s sentence did not violate Graham.
Indeed, it strains credulity to conclude that the Circuit Court’s application of Graham was “so lacking in justification” that it fell “beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. For one, Graham’s focus on the parallel between life without parole and the death penalty, see 560 U.S. at 69-70, along with the Court’s indictment of life without parole as impermissibly deeming a “juvenile offender forever . . . a danger to society,” id. at 72 (emphasis added), suggests that the Court saw no constitutional
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problem with state parole systems that allow for release only later in life. Indeed, the Court emphasized that “[t]he Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.” Id. at 75 (emphasis added). Thus, the state court was justified in reading Graham’s Eighth Amendment concerns as limited to traditional sentences of life without any possibility of parole.
Further, Graham did not define the bounds of its singular requirement that a juvenile must have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” 575 U.S. at 75. Rather, in adopting “[a] categorical rule against life without parole for juvenile nonhomicide offenders,” id. at 79, Graham declined to address what characteristics render a parole or release program “meaningful.” The Court did not dictate, for example, how frequently a parole board must meet regarding a juvenile nonhomicide offender or when, after a sentence is imposed on the offender, it must first begin meeting. Graham required only that, under a procedure that the Court did not specify, the offender be given a meaningful opportunity for release based on demonstrated maturity and rehabilitation. Given Graham’s leeway
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with respect to procedures and decisionmaking, the range of

permissible state court interpretation is commensurately broad.

See Yarborough, 541 U.S. at 664 (“[E]valuating whether a rule

application was unreasonable requires considering the rule’s

specificity. The more general the rule, the more leeway courts

have in reaching outcomes in case-by-case determinations”).

This is for good reason. Federal courts simply cannot be

inserting themselves so deeply into state parole procedures that

they effectively usurp the role of a state parole board. See

Vann v. Angelone, 73 F.3d 519, 521 (4th Cir. 1996) (“It is

difficult to imagine a context more deserving of federal

deference than state parole decisions”).

Affording the proper deference to its interpretation of

Graham’s broad rule, it is readily apparent that the Virginia

Beach Circuit Court operated well within its margin of error in

concluding that Virginia’s geriatric release program provides a

“meaningful opportunity to obtain release.”

The program

includes the Parole Board’s review of the inmate’s circumstances

by considering a range of factors, such as:

• Whether the individual’s history, physical and mental condition and character, and the individual’s conduct, employment, education, vocational training, and other developmental activities during incarceration, reflect the probability that the individual will lead a law abiding life in the community and live up to all conditions of [geriatric release] if released;

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• Length of sentence; • Facts and circumstances of the offense; • Mitigating and aggravating factors; • Inter-personal relationships with staff and inmates;
and • Changes in attitude toward self and others. Virginia Parole Board Policy Manual 2-4 (Oct. 2006). These factors on their face allow for consideration of an offender’s maturity, rehabilitation, and youth at the time of the offense. Further, inmates such as LeBlanc know in advance that the Virginia Parole Board will be considering these factors when it determines geriatric release so that “it is possible to predict, at least to some extent, when [geriatric release] might be granted.” Solem v. Helm, 463 U.S. 277, 301 (1983). Thus, the Virginia Beach Circuit Court’s conclusion, after applying Angel, that Virginia’s geriatric release law provided the meaningful opportunity to obtain release, certainly was not “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103; see also id. at 102 (“It bears repeating that even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable”). To hold otherwise would require a finding in effect that the Virginia Beach Circuit Court judge
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and the Virginia Supreme Court justices failed to meet the definition of “fairminded jurists.” See id. at 101.
LeBlanc concedes, as he must, that the geriatric release program provides some opportunity for release. He argues, rather, that the opportunity is not meaningful because of the low level of success shown by statistics. The statistics to which he refers, however, provide him with minimal support as they relate to older inmates and do not reflect the outcomes of offenders similarly situated to him. Given that Virginia’s parole reforms apply only to felony offenders who committed their crimes after 1994, juvenile offenders sentenced after 1994 will not gain eligibility for geriatric release for years to come, as they must first reach the age of 60. A 17-year-old juvenile offender who committed a nonhomicide offense in 1995, for example, would not become eligible for geriatric release until 2038. Because of this timing, relevant statistics for juvenile offenders simply do not exist.
I conclude that, just as the Virginia Beach Circuit Court did not rule “contrary to” Graham, it also was not an “unreasonable application of” Graham to LeBlanc’s circumstances within the meaning of § 2254(d)(1).
III Nonetheless, the majority, for purposes I do not fully understand, engages in an aggressive effort to prop up LeBlanc’s
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claim. To do so, it rests on its unsupported conclusions that Virginia’s geriatric release program does not adequately allow for release “based on maturity and rehabilitation”; that it does not account for youth as a mitigating factor; and that it lacks governing standards. Even if the majority’s rigorous, de novo scrutiny of the Virginia court’s reasoning did not defy § 2254(d)’s deferential standard of review, its conclusions are demonstrably mistaken on their own terms.
The majority first claims that Virginia’s program fails to provide any consideration for the “special mitigating force of youth,” ante at 34; see also ante at 30-31, and for an inmate’s progress with respect to “maturity and rehabilitation,” ante at 28-29. Yet, in the very same opinion, it contradictorily quotes the factors that the Parole Board is required to consider in granting release under the program, noting that the Parole Board is to consider “certain” characteristics of the offender, including “‘the individual’s history, physical and mental condition and character, . . . conduct, employment, education, vocational training, and other developmental activities during incarceration,’ prior criminal record, behavior while incarcerated, and ‘changes in motivation and behavior.’” Ante at 9-10 (emphasis added). Saying that these factors do not account for maturity and rehabilitation flaunts reason. But more importantly, the Virginia Supreme Court’s conclusion that
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Virginia law requires considerations of “normal parole factors”

such as rehabilitation and maturity is one of state law and thus

is binding on this court. And once it is understood that

Virginia law requires consideration of maturity and

rehabilitation, it follows that, under the § 2254(d) standard,

Virginia’s geriatric release program satisfied Graham.

Second, the majority’s conclusion that the Virginia program

lacks “governing standards” for release is puzzling in light of

the majority’s own description of the Virginia program, which

includes a detailed description of the relevant standards:

The Geriatric Release Administrative Procedures set forth a two-stage review process for Geriatric Release petitions. [Id.] At the “Initial Review” stage, the Parole Board reviews a prisoner’s petition -- which must provide “compelling reasons for conditional release” -- and the prisoner’s “central file and any other pertinent information.” J.A. 287. The Parole Board may deny the petition at the Initial Review stage based on a majority vote. [Id.] Neither the statute nor the Geriatric Release Administrative Procedures states what constitute “compelling reasons for conditional release” nor does either document set forth any criteria for granting or denying a prisoner’s petition at the Initial Review stage. [Id.]

If the Parole Board does not deny a petition at

the Initial Review stage, the petition moves forward

to the “Assessment Review” stage. [Id. at 288] As

part of the Assessment Review, a Parole Board member

or designated staff member interviews the prisoner.

[Id.] During that interview, the prisoner may present

written and oral statements as well as any written

material bearing on his case for parole.

The

interviewer then drafts a written assessment of the

prisoner’s “suitability for conditional release” and,

based on that assessment, recommends whether the

Parole Board should grant the petition. J.A. 288. In

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order to grant geriatric release to a prisoner sentenced to life imprisonment, at least four members of the five-member Parole Board must vote in favor of release. [Id.]

In engaging in the Assessment Review, Parole

Board members should consider “[a]ll factors in the

parole consideration process including Board

appointments and Victim Input.” Id. The Virginia

Parole Board Policy Manual includes a long list of

“decision factors” to be considered in the parole

review process. J.A. 297. These factors include:

public safety, the facts and circumstances of the

offense, the length and type of sentence, and the

proposed release plan. [J.A. 297–99.] The Parole

Board also should consider certain characteristics of

the offender, including “the individual’s history,

physical and mental condition and character, . . .

conduct, employment, education, vocational training,

and

other

developmental

activities

during

incarceration,” prior criminal record, behavior while

incarcerated, and “changes in motivation and

behavior.” J.A. 297–99. Finally, the Parole Board

should consider impressions gained from interviewing

the prisoner as well as information from family

members, victims, and other individuals. [J.A. 300.]

Ante at 8-10 (emphasis added; brackets in original).

The majority’s effort to bypass the “governing standards”

that it quotes is, in essence, an argument that the Parole Board

may not deny release without considering the juvenile offender’s

maturity and rehabilitation and that the Parole Board must, on

each application for release, explicitly consider maturity and

rehabilitation, regardless of what is presented in the

application. This argument, however, reads into Graham far more

than the case actually holds. Graham does not dictate parole

board procedures and decisionmaking. And, more particularly, it

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does not limit the permissible factors for denying release. Rather, it requires that the juvenile offender be given an opportunity for release based on “demonstrated maturity and rehabilitation,” imposing the burden on the juvenile offender to present evidence of maturity and rehabilitation and in turn requiring that the parole board have an ability to consider that evidence in deciding whether the offender should be released. Within this structure, therefore, when the Virginia Parole Board is presented with a juvenile offender’s application that makes a showing of maturity and rehabilitation, the Board is authorized, on the stated factors under which it operates, to grant release. This is just the meaningful opportunity that the Supreme Court describes in Graham. And Angel thus properly held that the Virginia Geriatric Release factors provide that ability to grant release on demonstrated maturity and rehabilitation, particularly in stating that the Parole Board should consider the juvenile offender’s developmental activities during incarceration, his behavior while incarcerated, and the changes in his motivation and behavior.
Stated otherwise, under the majority’s view, to satisfy Graham a State would have to consider only the Graham factors in considering release, denying the Parole Board the opportunity to consider any of the non-Graham factors that might be relevant to the juvenile offender’s application for release and the Board’s
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decision on that application. That aggressive reading of Graham would, I think, surprise the Supreme Court that decided it. But more importantly, it certainly was not unreasonable for the Virginia Circuit Court to understand Graham as not mandating the precise factors that every parole board must consider when reviewing juvenile offenders’ applications for release.
The majority also faults the geriatric release program because it allows for longer sentences to juveniles than adults, relying simply on the fact that juveniles commit their crimes earlier in life. See ante at 21, 34-35. It is a reality that a person who commits a serious crime at age 35 or, indeed, as a juvenile, will have the possibility of serving more years in prison than a person who commits the same crime at age 62. But if that reality violates Graham, it is hard to see how any termof-years sentence for a juvenile could withstand Eighth Amendment scrutiny; a young person’s chances of serving a full sentence are inherently higher than an older person’s.
Finally, the majority surmises that the Virginia Supreme Court in Angel expected that Angel would spend the rest of his life in jail and that therefore the court’s application of Graham was unreasonable because this observation implied that early release would be “the exception, rather than the expectation.” Ante at 31. This ground for attacking the Virginia Supreme Court can rest only on wild speculation, as no
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juvenile offender has yet been processed under the State’s geriatric release program, and the majority has pointed to no data to predict how the Parole Board will decide applications of juveniles for early release when they first qualify. Graham did not require that juveniles be released at any given time; it required that the juveniles be given a meaningful opportunity to prove themselves and to persuade the Parole Board to grant them release. If the Parole Board is given that authority by law, as the Virginia court found it is, then Graham is satisfied.
In short, the majority has reviewed de novo Virginia’s parole criteria based on its own expectations of how the system might work and has failed to appreciate that our sole task on a § 2254 petition is to determine whether the Virginia Supreme Court’s decision in applying Graham was unreasonable. And in fulfilling the task given by § 2254, it is not sufficient to show simply that the Virginia Supreme Court was wrong or even committed clear error; rather, it must be shown that the court erred in a manner “well understood and comprehended in existing law,” such that its error was “beyond any possibility for fairminded disagreement.” See White, 134 S. Ct. at 1702 (quoting Harrington, 562 U.S. at 103).
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Because of the limitations of the Supreme Court’s holding in Graham, the directly relevant holding by the Supreme Court of Virginia in Angel, and the restrictions imposed by § 2254(d), we are simply not free to grant LeBlanc’s habeas petition. Unfortunately, the majority, in its adventuresome opinion, pays only lip service to the required standards of review. Were it to have applied them meaningfully, I submit, the judgment of the district court granting LeBlanc his habeas petition would have to be reversed and the case remanded with instructions to dismiss the petition.
64

 
 Case: 2:12-cv-340 As of: 04/01/2018 09:49 PM EDT 1 of 7
APPEAL,HABEAS,STAYED
U.S. District Court Eastern District of Virginia − (Norfolk) CIVIL DOCKET FOR CASE #: 2:12−cv−00340−AWA−LRL

LeBlanc v. Mathena et al Assigned to: District Judge Arenda L. Wright Allen Referred to: Magistrate Judge Lawrence R. Leonard Case in other court: Richard H. Sewell, Case Manager,
15−07151 Cause: 28:2254 Petition for Writ of Habeas Corpus (State)
Petitioner

Date Filed: 06/19/2012 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: Federal Question

Dennis LeBlanc

represented by Jennifer Tope Stanton J. T. Stanton, P. C. 207 Granby Street #200 Norfolk, VA 23510 (757) 314−2354 Fax: 757−314−2352 Email: stantonlaw500@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennae Rose Swiergula Equality Justice Initiative 122 Commerce Street Montgomery, AL 36104 **NA** (334) 269−1803 Fax: (334) 269−1806 Email: jswiergula@eji.org PRO HAC VICE ATTORNEY TO BE NOTICED

Randall Scott Susskind Equal Justice Initiative 122 Commerce St Montgomery, AL 36104 **NA** (334) 269−1803 Fax: (334) 269−1806 Email: rsusskind@eji.org PRO HAC VICE ATTORNEY TO BE NOTICED

Stephen Chu Equal Justice Initiative 122 Commerce St Montgomery, AL 36104 **NA** (334) 269−1803 Fax: (334) 269−1806 Email: schu@eji.org PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Respondent
Randall Mathena Chief Warden, Red Onion State Prison,

represented by Lara Kate Jacobs Todd Office of the Attorney General

Case: 2:12-cv-340 As of: 04/01/2018 09:49 PM EDT 2 of 7

Pound, Virginia

(Richmond) 202 North 9th Street Richmond, VA 23219 (804) 786−0030 Fax: (804) 786−4239 Email: ljacobs@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Alan Raphael Office of the Attorney General (Richmond) 202 North 9th Street Richmond, VA 23219 804−786−7240 Fax: 804−371−0200 Email: sraphael@hunton.com TERMINATED: 09/08/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trevor Stephen Cox Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 (804) 786−7704 Fax: (804) 371−0200 Email: tcox@oag.state.va.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Quinlan Adelfio Office of the Attorney General (Richmond) 900 E Main St Richmond, VA 23219 (804) 786−5093 Fax: (804) 371−0151 Email: kadelfio@oag.state.va.us ATTORNEY TO BE NOTICED

Respondent Commonwealth of Virginia

represented by Lara Kate Jacobs Todd (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stuart Alan Raphael (See above for address) TERMINATED: 09/08/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trevor Stephen Cox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/19/2012

# Docket Text
1 PETITION for Writ of Habeas Corpus ( Filing fee $ 5 receipt number 246830160841.), filed by Dennis LeBlanc. (Service Copies Provided) (Attachments: #

Case: 2:12-cv-340 As of: 04/01/2018 09:49 PM EDT 3 of 7

06/27/2012 06/28/2012 06/28/2012 06/28/2012 06/28/2012 07/27/2012 07/27/2012 07/27/2012 07/27/2012 09/28/2012
10/04/2012 10/31/2012 10/31/2012 11/01/2012

1 Civil Cover Sheet, # 2 Cover Letter, # 3 Receipt)(bnew) (Entered: 06/20/2012)
2 Motion to appear Pro Hac Vice by Randall Scott Susskind, Jennae Rose Swiergula, Stephen Chu and Certification of Local Counsel Jennifer T. Stanton Filing fee $ 75, receipt number 0422−3098062. by Dennis LeBlanc. (Attachments: # 1 Proposed Order)(Stanton, Jennifer) (Entered: 06/27/2012)
Notice of Correction re 2 Motion to appear Pro Hac Vice − There needs to be a individual motion and proposed order for each individual attorney appearing Pro Hac Vice. The Motions do not have the Civil Case Number in the header. Also, a $75 payment is required for each application. (bnew) (Entered: 06/28/2012)
3 Motion to appear Pro Hac Vice by Stephen Chu and Certification of Local Counsel Jennifer T. Stanton Filing fee $ 75, receipt number 0422−3100046. by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 06/28/2012)
4 Motion to appear Pro Hac Vice by Jennae Rose Swiergula and Certification of Local Counsel Jennifer T. Stanton Filing fee $ 75, receipt number 0422−3100068. by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 06/28/2012)
5 MOTION to Amend/Correct 2 Motion to appear Pro Hac Vice by Randall Scott Susskind, Jennae Rose Swiergula, Stephen Chu and Certification of Local Counsel Jennifer T. Stanton Filing fee $ 75, receipt number 0422−3098062. to add civil case number by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 06/28/2012)
6 ORDER finding as moot 2 Motion for Randall Scott Susskind to appear Pro hac vice because this motion will be granted as amended in doc. 5. Signed by District Judge Arenda L. Wright Allen on 07/27/2012. (Allen, Arenda) (Entered: 07/27/2012)
7 ORDER granting 3 Motion to appear Pro Hac Vice by Stephen Chu (Certification by Local Counsel Jennifer T. Stanton). Signed by District Judge Arenda L. Wright Allen on 7/27/2012. (Allen, Arenda) (Entered: 07/27/2012)
8 ORDER granting 4 Motion to appear Pro Hac Vice by Jennae Rose Swiergula (Certification by Local Counsel Jennifer T. Stanton). Signed by District Judge Arenda L. Wright Allen on 7/27/2012. (Allen, Arenda) (Entered: 07/27/2012)
9 ORDER granting 5 Motion to Amend/Correct as follows: the prior Motion for Randall Scott Susskind to to appear Pro Hac Vice 2 is GRANTED as amended by this motion. Signed by District Judge Arenda L. Wright Allen on 7/27/2012. (Allen, Arenda) (Entered: 07/27/2012)
10 ORDER − It is hereby ORDERED that the respondent file within thirty days from the date of this Order an answer to the petition conforming to the requirements of Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, together with the attachments specified in Rule 5. If the petitioner has exhausted his state court remedies pertaining to his allegations either by appeal of his conviction or by a state habeas corpus proceeding, the respondent is requested to cause the state court records and transcripts of the petitioner's original trial and related proceedings, and the state court's habeas corpus transcripts and records, if any, applicable to the grounds alleged in the petition, to be forwarded to this Court for examination WITHIN THIRTY DAYS FROM THE DATE OF THIS ORDER. Said state court records and transcripts will be carefully maintained and will be returned to the clerk of the proper court upon termination of this proceeding. Signed by Magistrate Judge F. Bradford Stillman and filed on 9/28/2012. (bnew, ) (Entered: 09/28/2012)
Case reassigned to Magistrate Judge Lawrence R. Leonard. Magistrate Judge F. Bradford Stillman no longer assigned to the case. (jcow, ) (Entered: 10/04/2012)
11 NOTICE of Appearance by Lara Kate Jacobs on behalf of Commonwealth of Virginia, Randall Mathena (Jacobs, Lara) (Entered: 10/31/2012)
12 MOTION for Extension of Time to File Response/Reply as to 10 Order,,,, by Commonwealth of Virginia, Randall Mathena. (Jacobs, Lara) Modified on 11/16/2012 (bnew). (Entered: 10/31/2012)
Notice of Correction re 12 MOTION for Extension of Time to File Response/Reply as to 10 Order: Motion was untimely filed. Support brief is required pursuant to Local

Case: 2:12-cv-340 As of: 04/01/2018 09:49 PM EDT 4 of 7

11/02/2012 11/02/2012 11/05/2012 11/15/2012 11/15/2012 11/15/2012
11/27/2012
12/11/2012 04/30/2013
05/13/2013 06/12/2013 07/22/2013 07/24/2013
08/01/2013 10/11/2013

Civil Rule 7. (bnew) (Entered: 11/01/2012)
13 MOTION for Extension of Time to File Response/Reply as to 10 Order,,,, by Commonwealth of Virginia, Randall Mathena. (Jacobs, Lara) (Entered: 11/02/2012)
14 Brief in Support to 10 Order,,,, 13 MOTION for Extension of Time to File Response/Reply as to 10 Order,,,, filed by Commonwealth of Virginia, Randall Mathena. (Jacobs, Lara) (Entered: 11/02/2012)
15 ORDER granting 13 Motion for Extension of Time to File Response; Respondents are ORDERED to file responsive pleadings on or before November 16, 2012. Signed by Magistrate Judge Lawrence R. Leonard and filed on 11/5/12. Copy mailed as directed on 11/5/12. (jcow, ) (Entered: 11/05/2012)
16 Rule 5 Answer RESPONSE to Petition for Writ of Habeas Corpus by Commonwealth of Virginia, Randall Mathena.(Jacobs, Lara) (Entered: 11/15/2012)
17 MOTION to Dismiss by Commonwealth of Virginia, Randall Mathena. (Jacobs, Lara) (Entered: 11/15/2012)
18 Memorandum in Support re 17 MOTION to Dismiss filed by Commonwealth of Virginia, Randall Mathena. (Attachments: # 1 Exhibit A − VSC Record 111985 − part 1 of 2, # 2 Exhibit A − VSC Record 111985 − part 2 of 2, # 3 Exhibit B − Case No. CR02−1515 − part 1 of 7, # 4 Exhibit B − Case No. CR02−1515 − part 2 of 7, # 5 Exhibit B − Case No. CR02−1515 − part 3 of 7, # 6 Exhibit B − Case No. CR02−1515 − part 4 of 7, # 7 Exhibit B − Case No. CR02−1515 − part 5 of 7, # 8 Exhibit B − Case No. CR02−1515 − part 6 of 7, # 9 Exhibit B − Case No. CR02−1515 − part 7 of 7)(Jacobs, Lara) (Entered: 11/15/2012)
19 NOTICE to Court to include the attached exhibits as part of the record of the case re 1 Petition for Writ of Habeas Corpus, 16 Response to Habeas Petition, 17 MOTION to Dismiss, 18 Memorandum in Support,, by Dennis LeBlanc. (Attachments: # 1 Exhibit Missing from prior pleadings)(Stanton, Jennifer) Modified on 11/27/2012 (bnew). (Entered: 11/27/2012)
MOTION REFERRED to Magistrate Judge Lawrence R. Leonard. 17 MOTION to Dismiss (jcow, ) (Entered: 12/11/2012)
20 ORDER re 17 MOTION to Dismiss filed by Randall Mathena, Commonwealth of Virginia. Petitioner is ORDERED to respond to motion by Tuesday, May 14, 2013. Respondent may file their reply within seven days thereafter. Signed by Magistrate Judge Lawrence R. Leonard on 04/30/2012. Copies mailed 5/1/2013.(tjoh, ) (Entered: 05/01/2013)
21 RESPONSE to Motion re 17 MOTION to Dismiss and Answer by Commonwealth filed by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 05/13/2013)
22 MOTION for Leave to File Additional authority by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 06/12/2013)
23 ORDER granting 22 Motion for Leave to File.. Signed by Magistrate Judge Lawrence R. Leonard on 07/22/2013. Copies mailed 7/22/2013. (tjoh, ) (Entered: 07/22/2013)
24 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Dennis LeBlanc. For the following reasons, the undersigned RECOMMENDS the Respondents' Motion to Dismiss, ECF No 17, be GRANTED and LeBlanc's Petition, ECF No. 1, be DENIED and DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Lawrence R. Leonard on 07/24/2013. Copies mailed via NEF 7/24/2013.(tjoh, ) (Entered: 07/24/2013)
25 Objection to 24 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Dennis LeBlanc filed by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 08/01/2013)
26 ORDER Supplemental Briefing to be filed within thirty days of this order. Respondents shall file a Sur−Reply to Petitioner's Supplemental Briefing. Signed by District Judge Arenda L. Wright Allen on 10/11/2013. (tbro) (Entered: 10/15/2013)

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11/11/2013 11/18/2013 11/18/2013 12/02/2013 12/13/2013 12/16/2013 01/08/2014 03/27/2014 07/01/2015
07/01/2015 07/06/2015 07/06/2015 07/16/2015 07/20/2015 07/20/2015 07/21/2015

27 Reply to 26 Order, 24 REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Dennis LeBlanc, 25 Objection filed by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 11/11/2013)
28 MOTION for Extension of Time to File Response/Reply as to 26 Order, 27 Reply by Commonwealth of Virginia, Randall Mathena. (Todd, Lara) (Entered: 11/18/2013)
29 RESPONSE to Motion re 28 MOTION for Extension of Time to File Response/Reply as to 26 Order, 27 Reply filed by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 11/18/2013)
30 ORDER granting 28 Motion for Extension of Time to File Response/Reply. Respondents shall file a Sur−Reply to Petitioner's supplemental briefing within 15 days of this Order. Signed by District Judge Arenda L. Wright Allen on 12/2/13. (afar) (Entered: 12/03/2013)
31 Response to 27 Reply Respondents' Response to Petitioner's Supplemental Brief filed by Commonwealth of Virginia, Randall Mathena. (Attachments: # 1 Exhibit A − affidavit of William W. Muse)(Todd, Lara) (Entered: 12/13/2013)
32 MOTION for Leave to File & Supplemental Response by Dennis LeBlanc. (Stanton, Jennifer) (Entered: 12/16/2013)
33 ORDER granting 32 Motion for Leave to File. Signed by District Judge Arenda L. Wright Allen on 1/7/14 and filed on 1/8/14. (tbro) (Entered: 01/08/2014)
34 ORDER: The Court hereby DEFERS ruling re 17 MOTION to Dismiss filed by Randall Mathena, Commonwealth of Virginia, pending the outcome of a closely related matter, which may significantly impact the resolution of this case. Signed by District Judge Arenda L. Wright Allen on 3/27/14. (tbro) (Entered: 03/27/2014)
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' 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. 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, ) (Entered: 07/01/2015)
36 CLERK'S JUDGMENT. Signed by Clerk and filed on 7/1/15. Copies distributed to all parties 7/1/15.(ldab, ) (Entered: 07/01/2015)
37 NOTICE of Appearance by Katherine Quinlan Adelfio on behalf of Randall Mathena (Adelfio, Katherine) (Entered: 07/06/2015)
38 CERTIFICATE of Service − Corrected re 37 Notice of Appearance by Katherine Quinlan Adelfio on behalf of Randall Mathena (Adelfio, Katherine) (Entered: 07/06/2015)
39 NOTICE of Appearance by Stuart Alan Raphael on behalf of Commonwealth of Virginia, Randall Mathena (Raphael, Stuart) (Entered: 07/16/2015)
40 NOTICE of Appearance by Trevor Stephen Cox on behalf of Commonwealth of Virginia, Randall Mathena (Cox, Trevor) (Entered: 07/20/2015)
41 NOTICE OF APPEAL as to 35 Order on Report and Recommendations, Order on Motion to Dismiss,,,,,, 36 Clerk's Judgment by Commonwealth of Virginia, Randall Mathena. Filing fee $ 505, receipt number 0422−4552307. (Raphael, Stuart) (Entered: 07/20/2015)
42 Transmission of Notice of Appeal to US Court of Appeals re 41 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (jmey, ) (Entered: 07/21/2015)

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07/21/2015 07/21/2015 07/22/2015 07/24/2015
08/07/2015 11/07/2016 11/07/2016
11/10/2016 11/10/2016 11/21/2016 01/20/2017 01/24/2017 02/01/2017 03/31/2017 06/12/2017
08/07/2017 08/09/2017 08/09/2017

Assembled INITIAL Electronic Record Transmitted to 4CCA re 41 Notice of Appeal. (jmey, ) (Entered: 07/21/2015)
43 Consent MOTION to Stay re 35 Order on Report and Recommendations, Order on Motion to Dismiss,,,,,, 36 Clerk's Judgment by Commonwealth of Virginia, Randall Mathena. (Attachments: # 1 Proposed Order)(Raphael, Stuart) (Entered: 07/21/2015)
44 USCA Case Number 15−7151 − Richard H. Sewell, Case Manager for 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. (jmey, ) (Entered: 07/24/2015)
45 ORDER. ORDERED that the judgment of this Court entered July 1, 2015 (ECF No. 36), and the accompanying Memorandum Opinion and Order (ECF No. 35), are hereby stayed pending issuance of the mandate in this case by the United States Court of Appeals for the Fourth Circuit. Signed by District Judge Arenda L. Wright Allen on 7/23/2015. Copies mailed 7/24/2015. (jmey, ) (Entered: 07/24/2015)
46 ORDER of USCA as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The court appoints Jennifer T. Stanton to represent Dennis LeBlanc. (15−7151) (jmey, ) (Entered: 08/13/2015)
47 Opinion of USCA (Copy) re 41 Notice of Appeal. (15−7151) (jmey, ) (Entered: 11/07/2016)
48 USCA JUDGMENT as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The Judgment of the district court is affirmed. This judgment shall take effect upon issuance of the court's mandate in accordance with Fed. R. App. P. 41. (15−7151) (jmey, ) (Entered: 11/07/2016)
49 ORDER of USCA as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The Court amends its opinion filed November 7, 2016. (15−7151) (jmey, ) (Entered: 11/14/2016)
50 Amended Opinion of USCA (Copy) re 41 Notice of Appeal. (15−7151) (jmey, ) (Entered: 11/14/2016)
51 Appeal Remark re 41 Notice of Appeal : Stay of Mandate. The mandate is stayed pending further order of this court. (15−7151) (jmey, ) (Entered: 11/22/2016)
52 ORDER of USCA as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The court denies the petition for rehearing en banc. (15−7151) (jmey, ) (Entered: 01/23/2017)
53 Appeal Remark re 41 Notice of Appeal : The mandate is stayed pending further order of this court. (15−7151) (jmey, ) (Entered: 01/26/2017)
54 ORDER of USCA as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The court grants the motion to stay mandate pending the filing of a petition for a writ of certiorari. (15−7151) (jmey, ) (Entered: 02/07/2017)
55 Appeal Remark re 41 Notice of Appeal : Supreme Court Remark. The petition for a writ of certiorari in the above entitled case was filed on March 28, 2017 and placed on the docket March 30, 2016 as No. 16−1177. (15−7151) (jmey, ) (Entered: 04/03/2017)
56 Appeal Remark re 41 Notice of Appeal : Supreme Court Remark. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted, and the judgment of the Court of Appeals is reversed. (15−7151) (jmey, ) (Entered: 06/20/2017)
57 Appeal Remark re 41 Notice of Appeal : Supreme Court Remark. The petition for writ of certiorari is granted. (15−7151) (jmey, ) (Entered: 08/09/2017)
58 MOTION to Withdraw as Attorney by Commonwealth of Virginia, Randall Mathena. (Attachments: # 1 Proposed Order Granting Motion to Withdraw)(Raphael, Stuart) (Entered: 08/09/2017)
59 ORDER of USCA as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The Court grants Solicitor General Stuart A. Raphael's motion to withdraw from further representation on appeal. (15−7151) (jmey, ) (Entered: 08/10/2017)

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08/25/2017 08/25/2017 09/08/2017 10/02/2017

60 USCA JUDGMENT as to 41 Notice of Appeal filed by Randall Mathena, Commonwealth of Virginia. The judgment of the district court is reversed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. (15−7151) (jmey, ) (Entered: 08/28/2017)
61 USCA Mandate re 41 Notice of Appeal. The judgment of this court, entered takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (15−7151) (jmey, ) (Entered: 08/28/2017)
62 ORDER granting 58 , the Motion to Withdraw as Attorney. Attorney Stuart Alan Raphael is withdrawn as one of several counsel of record for respondents for good cause shown. Signed by District Judge Arenda L. Wright Allen on 9/08/2017. (Allen, Arenda) (Entered: 09/08/2017)
63 Appeal Remark re 41 Notice of Appeal : Supreme Court Remark. Amended Supreme Court Judgment. (15−7151) (jmey, ) (Entered: 10/03/2017)