PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 1 6
- 9 5 66

In re: JARIUS DAMAR PHILLIPS , Movant

.

Argued: December 5 , 2017 Decided: January 16, 2018

Before N IEMEYER , SHEDD , and DUNCAN , Circuit Judge s .

Motion for authorization under 28 U.S.C. § 2244 to file a successive habeas petition under 28 U.S.C. § 2254 denied by published opinion

. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Duncan joined.

ARGUED: Damon Clarke Andrews, KIRKLAND & ELLIS LLP, Washington, D.C., for Movant. Joseph Christian Obenshain, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent. ON BRIEF: Robert L. Littlehale, Matthew S. Brooker, James Bowden, Jr., KIRKLAND & ELLIS LLP, Washington, D.C., for Movant. Victoria N. Pearson, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent.2 NIEMEYER, Circuit Judge : On June 24, 2016, Jarius Phillips filed a motion in this court under 28 U.S.C. § 2244(b)(3)(A), seeking authorization to file a second or successive application in the
U.S. District Court for the Eastern District of Virginia for a writ of habeas corpus to challenge his 2001 sentence of four life terms p lus 45 years imposed by a Virginia state
court for nonhomicide crimes he committed as a juvenile. H is motion contends that his sentence violate s the Eighth Amendment’s Cruel and Unusual Punishments Clause, as
construe d in : Graham v. Florida , 560 U.S. 48 , 75 (2010) (holding that, under the Eighth Amendment, juvenile offende rs convicted of non homicide crim es may not be sentenced to life in prison without parole and that such offenders must be given “some meaningful opportunity to obtain release based on dem onstrated maturity and rehabilitation”); Miller v. Alabama , 567 U.S. 460 , 476, 483 (2012) (holding that, under the Eighth Amendment, juvenile homicide offenders may not receive “ mandatory life

- without

- parole sentences” and that , before sentencing such offe nders to life without parole , the sentencing court must consider their “you th and attendant characteristics ” (emphasis added) ) ; and LeBlanc v. Mathena , No. 2:12

- cv - 340, 2015 W L 4042175 (E.D. Va. July 1, 2015) (granting habeas relief to a Virginia juvenile nonhomicide offender serving two life terms with the possibility of “geriatric release” at the age of 60 after concluding that Virginia courts had unreasonably applied Graham )

. After we affirmed the decision in LeBlanc , see 841 F.3d 256 (4th Cir. 2016), we appointed counsel to r epresent Phillips on his motion in this case . A fter doing so , however, the Supreme Court reversed our decision in LeBlanc

. See Virginia v. LeBlanc ,3 137 S. Ct. 1726 , 1729 (2017) (per curiam) (holding that “it was not objectively unreasonable for the state court to conclude that, because [Virginia’s] geriatric release program employed normal parole factors, it satisfied Graham ’s requirement that juvenil es convicted of a nonhomicide crime have a meaningful opportunity to receive parole”).
We now deny Phillips’s motion because the claim that he seeks to present to the district court was raised in his first federal application for a writ of habeas corpus , a nd therefore Phillips has not made a “prima facie showing” that his successive habeas application w ould allege a claim that was not “ presented in a prior application, ” as the
statute r equires . 28 U.S.C. § 2244(b)(3)(C) ; id . § 2244(b)(1)

.

I In January 2001, a jury impaneled in the Circuit C ourt for the City of Newport News, Virginia, convicted Phillips of two counts of abduction with intent to defile, in violation of Va

. Code Ann. § 18.2

- 48; one count of rape, in violation of § 18.2

- 61(A)(i); one count of object sexual penetration, in violation of § 18.2

- 67.2(A)(1); one count of malicious wounding, in violation of § 18.2

- 51; and one count of robbery, in violation of § 18.2

- 58. Phillips committed these crimes on March 4, 2000, when he was 17 y ears old. After considering a presentence report and Virginia ’s discretionary sentencing guidelines, the trial court sentenced Phillips to four terms of life imprison ment on the convictions for abduction with intent to defile, rape, and object sexual penet ration, plus
20 years’ imprisonment for the malicious wounding conviction and 25 years’4 imprisonment for the robbery conviction. While Virginia had abolished traditional parole for felony offenders, see Va. Code Ann. § 53.1

- 165.1, Phillips was nonetheless subject to Virginia’s “geriatric release” program, which “allows older inmates to receive conditional release under some circumstances,” LeBlanc , 137 S. Ct. at 1727 (citing Va. Code Ann. § 53.1

- 40.01). Phillips appealed the judgments to the Court of A pp eals of Virginia, which denied his appeal by orders dated November 21, 2001 , and February 5, 2002

. T he S upreme C ourt of Virginia refused his further appeal on May 31, 2002 , and denied his petition for rehearing on July 30, 2002. Phillips filed a state ha beas petition in the trial court on September 12, 2003 , which the court dismissed on November 10, 2003, as time

- barred , and the same court denied his motion for reconsideration on December 17, 2003. The Virginia Supreme C ourt dismissed his petition for ap peal on July 1, 2004 , as untimely. Nearly 10 years later, on June 7, 2013, Phillips, a ct ing pro se , filed an application for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia , pursuant to 28 U.S.C. § 2254, claiming that he had been sentenced to life without parole for crimes he had committed as a juvenile, in violation of the Eighth Amendment, and seeking an or der requiring the Newport News Circuit C ourt to resentence him. He divided his Eighth Amendment claim, adva ncing two separate grounds for review. In “Ground One,” he alleged that his sentence was unconstitutional because he “was a juvenile convicted of a non

- homicidal offense and given multiple life sentences without the possibility of parole , ” a nd for support , he cited and quoted at length from the Supreme Court’s 2010 decision in Graham v. Florida . In “Ground Two,” he alleged,5 “Life in prison without possibility of parole sentence for juveniles violates [the] Eighth Amendment , ” and for support, he cited and quoted at length from the Supreme Court’s 2012 decision in Miller v. Alabama

. In conclu ding , Phillips argu ed that his application was timely under 28 U.S.C. § 2244(d) due to the Supreme Court’s decisions “in 2010 and again [in] 2012,” “prohibiting life wi thout possibility of parole to juvenile offenders.” Several months after filing his application , Phillips filed a motion for summary judgment in w hich he succinctly repeated his argument that , because he “was a juvenile when convicted of non

- homicidal of fenses and given (4) life terms plus 45 years,” his sentence was “in clear violation of the United States Constitutional ban on cruel and unusual punishment as set forth in Graham and Miller .” (Citations omitted). The Director of the Virginia Department o f Corrections filed a motion to dismiss Phillips’s habeas application, contending that his Eighth Amendment claim was untimely under 28 U.S.C. § 2244(d)(1)(C) , since, inter alia , Phillips had filed his h abeas application more than one year after the Suprem e Court decided Graham . The Director also filed an opposition to Phillips’s motion for summary judgment, arguing on the merits that Phillips’s life sentences did not violate the rule in Graham because Phillips would be eligible for parole under Virginia’s geriatric release program. In support, the Director cited the Virginia Supreme Court’s decision in Angel v. Commonwealth , 704 S.E.2d 386,
402 (Va. 2010) (holding that Virginia’s geriatric rel eas e program provided juvenile

non homicide offenders serving life sentences with a meaningful opportunity for release based on demonstrated maturity and rehabilitation, as required by Graham ).6 A magistrate judge recommended that the district court grant th e Director’s motion to dismiss Phillips’s habeas application on the ground that the application was time

- barred under § 2244(d)(1) and Phillips did not qualify for equitable tolling of the time limitation. By order dated May 21, 2014, the district court a dopted the magistrate judge’s report and recommendation, dismissed Phillips’s habeas application with prejudice, and declined to issue a certificate of appealability. On Phillips’s appeal, we too denied a certificate of appealability and dismissed his app eal in an unpublished per curiam order dated October 24, 2014. Nearly a year later, on October 15, 2015, Phillips filed a second application in the Eastern District of Virginia for a writ of habeas corpus under § 2254, again challenging the constitutionality of his life sentence s for non homicide crimes he committed as a juvenile and this time relying on the July 1, 2015 decision of the district court in LeBlanc , which granted habeas relief to another Virginia juvenile nonhomicide offender sen tenced to life imprisonment. In LeBlanc , the district court concluded that Virginia courts had unreasonably applied Graham in holding that the Commonwealth’s geriatric release program provided juvenile nonhomicide offenders serving life sentences with the
necessary meaningful opportunity for release. By order dated May 20, 2016, the district
court in this case dismissed Phillip’s application without prejudice because Phillips had failed to obtain a prefiling authorization from this court, as required by 28 U.S.C. § 2244(b)(3) for a second or successive habeas application. Phillips accordingly filed the current motion in this court on June 24, 2016 , for an order authorizing the district court to consider his second or suc cessive habeas7 application. The motion alleges that Phillips’ s life sentences for juvenile nonhomicide offenses were unconstitutional as cruel and unusual punishment s under Graham , Miller , and the district court’s decision in LeBlanc

. We placed Phillips’s motion in abeyance by order dated July 18, 2016, pending our review of the district court’s decision in LeBlanc . After we affirmed the grant of habeas relief in LeBlanc , we appointed counsel to represent Phillips in this proceeding

. After counsel’s appo intment, b ut b efore any briefs were filed, the Supreme Court reversed our decision in LeBlanc , holding that, under 28 U.S.C. § 2254(d)(1), “it was not objectively unreasonable for the state court to conclude that, because the geriatric release program empl oyed normal parole factors, it satisfied Graham ’s requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole

. ” LeBlanc , 137 S. Ct. at 1729. We now address Phillips’s motion.

II Before a person in state cu stody may file a second or successive habeas application in a federal district court, he must obtain authorization from “the appropriate court of appeals ” by filing a motion “for an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). The court of appeals may grant such a motion “ only if it determine s that the application makes a prima facie showing that [it] satis fies the requirements of [§ 2244(b)].” Id

. § 2244(b)(3)(C). As relevant here, t he application must thus make a prima facie showing: (1) that the second or successive application present s a claim that was not “presented in a prior application,” id

.8 § 224 4(b)(1); and (2) that such “ claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” id . § 2244(b)(2)(A). The term “ prima facie showing ” means that it must at least “appear [] reasonably likely ” that the second or successive application satisfies the § 2244(b) requirements so as to “warrant a fuller exploration by the district court” as to whether they are actually satisfied. In re Williams , 330 F.3d 277, 281 ( 4th Cir. 2003) (emphasis added) (quoting Bennett v. United States , 119 F.3d 468, 469

– 70 (7th Cir. 1997) ) ; see also 28 U.S.C. § 2244(b)(4) ( providing that “ [ a ] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of [§ 2244]”). Moreover, b ecause § 2244 provi des that a “court of appeals may authorize the filing of a second or successive application only if it determines” that the applicant has made a prima face showing as to § 2244(b)’s requirements, 28 U.S.C. § 2 244(b)(3)(C) (emphasis added), w e have conclude d that while the prima facie showing is a necessary condition to receiving prefiling authorization, t he statute does not limit this court to consider i n g only this necessary condition

. See In re Vassell , 751 F.3d 267, 271 (4th Cir. 2014) (“ [W] hile our primary consideration in reviewing a request for authorization in this kind of case is whether the applicant made the requisite prima facie showing,” nothing in “§ 2244 requires us to ignore other considerations and authorize the filing of a successive [ha beas application] that, for instanc e, would clearly be time

- barred ” )

.9 Turning to the motion now before us, Phillips originally s ought authorization to file a second or successive habeas application challenging the constitutionality of his sentences under Graham and Miller , as well as under the district court’s now reversed decision in LeBlanc . With the benefit of counsel, however, Phillips has clarified his position to assert that he “is relying on only Miller for purposes of this proceeding.” In doing so, he contends that he is eligible for prefiling authorization under § 2244(b) (3)(C) because he has made at least a prima facie showing (1 ) that his second or successive habeas application would present a claim that “ relies on” Miller ; (2) that Miller
est ablished “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court ” ; and ( 3 ) that Miller was “ previously un available” to him in 2013 when he filed his first federal habeas application because Miller was only “ma de retroactive to cases on collateral review by the Supreme Court” in its 2016 decision in Montgomery v. Louisiana , 136 S. Ct. 718, 732 (2016). He argues further, for essential ly the same reason, that when he filed his previous habeas application, he was legally incapable of “presenting” a Miller claim, as th e term “present” is used in § 2244(b)(1), because Miller had not then become retroactive. According to him, h is second application thereby now satisfies the requirements of both § 2244 (b)(1) and (b)(2 )(A).
As already noted, t o obtain authorization to file a second or successive application , Phillips must first make a prima facie showing that his proposed application would present a claim that was not presented in a prior application. 28 U.S.C. § 2244( b)(3)(C); id

. § 2244(b)(1) (providing in full, “ A claim presented in a second or successive habeas10 corpus application under section 2254 that was presented in a prior application shall be dismissed”). Phillips , however, has failed to make such a showing. In his 2013 application, Phillips relied extensively on Miller to attempt to obtain habeas relief. In the second of the two grounds that he advanced for relief i n that application , he stated : GROUND TWO : Life in prison without possibility of parole sentence for juveniles violates Eighth Amendment [

. ] Miller v. Alabama [ , ] Nos [

. ] 10

- 9646, 10

- 9647 [ , ] A rgued March 20, 2012 [ , ] D ecided June 25, 2012 [

. ] Decision of the United States Supreme Court, held that mandatory life imprisonment without parole for th ose under the age of 18 at the time of their crime s violates the Eighth Amendment’s prohibition on cruel and unusual punishment ( See Atth [

. ] B [ ) ]

.

* * * Atth[.] B[.] Miller v Alabama Ground Two cont’d. [ Miller ] [s]tates “Mandatory life without parole f or those under the age o f 18 at the time of their crimes violates the Eighth Amendment prohibition on cruel and unusual punishment [

. ] ” Also sentencing and punishment under Constitutional Amendment VIII states that “the Eighth Amendment prohibits a sentence of life without the possibility of parole for a child who committed a nonhomicide offense [

. ] ” Again, [ i ] mposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children. Again [ t ] he characteristics of youth, and the way they weaken rationales for punishment [,] can render a life

- without

- parole sentence disp roportionate punishment for a juvenile. The U.S. Supreme Court held that “the Eighth Amendment forbids a sentencing scheme that mandates life i n prison without possibility of parole for juvenile offenders. [”]11 In his current motion , Phi llips seeks leave to file a successive habeas application to present again a claim based on Miller , and therefore we must deny his motion for authorization

. See Williams , 330 F.3d at 282 (noting that “claims recycled from [the applicant’s] previous § 2254 application . . . may not form the basis for the granting of
pre - filing authorization because review is barred under § 2244(b)(1) ” )

. Phillips concedes that he “raised in his initial post conviction proceeding the Miller claim he now seeks to advance in his second proceeding .” But he argues nonetheless that he should be deemed as having not previously “presented” his Miller claim within the meaning of § 2244(b)(1) because, at the time of his 2013 application , Miller had not been made retroactively applicable to cases on collateral review. To mak e this argument, he relies on language in In re Vial , 115 F.3d 1192 (4th Cir. 1997) (en banc), which stat ed that “a new rule of constitutional law is not available to individ uals seeking to file second or successive motions for postconviction relief until the Supreme Court declares the applicability of that particular rule to collateral proceedings , ” i d . at 1196. According to Phillips, it follows from Vial that because it was unclear whether Miller would apply retroactively to cases on collateral review when he filed his first federal habeas application in June 2013, a Miller claim was not then “available” to him , and therefore he was legally incapable of “presenting” such a c laim at that time. H e contend s that , by including a Miller claim i n his 2013 application , he was merely “putting down a marker” within one year of the date Miller was decided to ensure that, should the Supreme Court later make Miller retroactive (as it ha s now done), his later filed Miller claim would be timely under § 2244(d)(1)(C) and thereby could be resurrected in a second or successive12 habeas application

— even though h is first habeas application was dismissed with prejudice . “Otherwise,” he argues, “applicants like [him] would confront Scylla and Charybdis ” w hen filing a habeas application based on the Supreme Court ’s recognition of a new rule of constitutional la w, suggesting that he was unacceptably given lose

- lose alternatives. *
There are several problems with Phillips’s argument. First, the language of our opinion in Vial , on which he relies , was addressing the limited issue

— later conclusively settled by the Supreme Court in Tyler v. Cain , 533 U.S. 65 6 (2001)

— of how to determine when a new ru le of constitutional law has been “made retroactive to cases on collateral review by the Supreme Court

. ” 28 U.S.C. § 2255(h)(2) (emphasis added); see also id

. § 2244(b)(2)(A) ( same )

. At issue , specifically, was whether the Supreme Court must “declare [] t he collateral availability of the rule in question” or whether “Supreme Court precedent [ can ] establish [] that the new rule is of the type available to those proceeding on collateral review.” Vial , 115 F.3d at 1196

– 97

. We conclud ed that “the plain language ” of the statute established that, “in order to be available to an individual pursuing a second or successive § 2255 motion, a new rule of constitutional law must itself be declared applicable to cases on collateral review by the S upreme Court

. ” Id

. at

* As described in Homer’s Odyssey , Book XII, Odysseus, on returning from Troy by ship, was confronted with a narrow s trait , which was impossible to navigate without harm. On one side Scylla, a six

- headed sea monster, would snatch six sailors from the ship, one for each head, and on the other side, Charybdis, a whirlpool, would suck the ship into its water funnel and destroy it. There was no safe lane between the two. Odysseus engaged Scylla and thus lost six sailors.13 1196. Thus, o ur opinion in Vial did not purport to answer any question as to when a claim based on a new rule of constitutional law is “presented” in a habeas application within the meaning of § 2244(b)(1). And any statement in Via l suggesting that a claim based on a new rule of constitutional law does not become legally available until the new rule has been made retroactive to cases on collateral review wa s dictum at best. More importantly, even such dictum has been undermined by the Supreme Court’s subsequent decision in Dodd v. United States , 545 U.S. 353 (2005).
In Dodd , the Court addressed the question of when the 1

- year limitation period that appli es to a prisoner’s federal post conviction proceeding begins to run, particularly when the prisoner’s claim is based on the Supreme Court’s new recognition of a federal right. Specifically, with respect to a federal prisoner’s collateral challenge to the final judgment in his criminal c ase, 28 U.S.C. § 2255(f) provides that “ [ t ] he limitation period shall run from the latest of” several events , including “the date on which the right asserted was initially recognized by the Supreme Court , if that right has been newly recognized by the Supr eme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3); cf

. id . § 2244(d)(1)(C) (using nearly identical language to provide that the 1

- year limitation period that applies to a state prisoner’s habeas application begins to “run from the latest of” various possible dates, one of which is “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 retroactive ly applicable to cases on collateral review”).14 The Dodd Court rejected the federal prisoner’s argument that, under § 2255 (f)(3) ,

“ the limitation period run s from the date on which the right asserted was made retroactively applicable

. ” 546 U.S. at 357 (emp hasis added) . I nstead , it h e ld that the statute’s text “unequivocally identifies one, and only one, date from which the 1

- year limitation period is measured: ‘the date on which the right asserted was initial ly recognized by the Supreme Court

. ’” I d

. (quoting § 2255(f)(3)). Thus, giving the statue’s text its “only natural reading,” the Court concluded that when it “decides a case recognizing a new right, a federal prisoner seeking to assert that right will have one year from [its] decision within whic h to file his § 2255 motion,” although he “may take advantage of [that] date . . . only if” “the right ‘has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.’” Id . at 358

– 59 (quoting § 2255(f)(3)). Critically, the Dodd Court expressly recognized and rejected the Scylla

- and

Charybdis problem identified by Phillips, acknowledging that by giving the statutory text its plain meaning, there was a “potential for harsh results in some cases,” particularly with respect to federal prisoners who have previously filed a § 2255 motion. 545 U.S. at 359. Indeed, the C ourt explicitly noted that, “because of the interplay between” § 2255(f)(3) and (h)(2), “an applicant who files a second or successive motion seeki ng to take advantage of a new rule of constitutional law will be time barred except in the rare

case in which this Court announces a new rule of constitutional law and makes it retroactive within one year.” Id . (emphasis added). But this “potential for h arsh results,”15 the Court concluded, did not give it license “to rewrite the statute that Congress has enacted.” Id

. We conclude that Dodd ’s reasoning is controlling here. Distilled to its essence, Phillips’s argument is that, based on the operation of th e statute of limitations in § 2244(d)(1)(C), we should ignore the plain text of § 2244(b)(1) and hold that although he raised a claim based on Miller in his 2013 habeas application , the claim was nonetheless not “ presented ” then because Miller ’s new rule h ad not yet been made retroactively applicable to cases on collateral review. But, as Dodd so clearly instructs, “we are not free to rewrite the statute that Congress has enacted” to avoid what w ould admittedly be “harsh results in some cases.” 545 U.S. at 359. Phillips fully presented his Miller claim in 2013 and now proposes to file a second or successive application to present the same claim. S ubs ection s 2244(b)(1) and 2244 (b)(3)(C) forbid this.
Because Phillips has failed to make the necessary prima facie showing that his successive habeas application would present a claim that was not “presented” in his first, his motion for leave to file a successive application must be denied. We therefore need not address the separate issue s of whether he made a prima facie showing that his proposed claim “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable , ” 28 U. S.C. § 2244(b)(2)(A), or whether his motion should otherwise be denied because his successive application would be untimely under § 2244(d) , see Vassell , 751 F.3d at 268

– 72. MOTION DENIED