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

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 

Justice & Public Safety Division, Donald E. Jeffrey, III, Senior 

Assistant Attorney General, Eugene P. Murphy, Senior Assistant 
2

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. 
3

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 
4

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 
5

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 
6

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 
7

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).
8

The Virginia Parole Board is responsible for deciding 

whether to grant petitions for Geriatric Release. Section 53.1-

40.01 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 
9

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. 
10

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 
11

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. 
12

II.

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 
13

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-
14

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 
15

unreasonable application of” Graham--the question to which we 

now turn.

III

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. 
16

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 
17

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 
18

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 
19

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. 
20

“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 
21

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. 

C.

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.”).
22

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”).
23

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.
24

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). 
25

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. 
26

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).
27

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 
28

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 
29

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)
30

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.
31

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 
32

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.
33

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 wa

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 
34

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 
35

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. 
36

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) 
37

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.
38

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. 

IV.

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-
39

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
40

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.
41

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. 
42

§ 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 
43

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 
44

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 
45

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.
46

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.
47

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.
48

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 
49

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.
50

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 
51

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 
52

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 
53

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 
54

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
55

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;
56

• 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 
57

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 
58

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 
59

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 
60

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 
61

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 
62

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 
63

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).
64

* * *

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.