Johnson v. Ponton
| Decision Date | 05 March 2015 |
| Docket Number | No. 13–7824.,13–7824. |
| Citation | 780 F.3d 219 |
| Parties | Shermaine Ali JOHNSON, Petitioner–Appellant, v. Henry PONTON, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED:John Longstreth, K & L Gates LLP, Washington, D.C., for Appellant. Alice Theresa Armstrong, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee. ON BRIEF:Charles R. Mills, Noam A. Kutler, Eric T. Mitzenmacher, K & L Gates LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellee.
Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.
Petitioner–Appellant Shermaine Ali Johnson appeals the district court's dismissal of his habeas petition under 28 U.S.C. § 2254, challenging his sentence of life imprisonment without parole. He argues that the rule announced in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), is retroactively applicable to him on collateral review. Miller held that imposing mandatory life imprisonment without the possibility of parole for juvenile homicide offenders—i.e., imposing that sentence without any individualized consideration of their status as juveniles—violates the Eighth Amendment. For the reasons that follow, we conclude that the Miller rule is not retroactively applicable to cases on collateral review. We therefore affirm.1
The facts pertinent to this appeal are as follows:
Johnson v. Ponton, No. 3:13–CV–404, 2013 WL 5663068, at *1 (E.D.Va. Oct. 16, 2013) (footnote omitted). Johnson's conviction and sentence “became final on September 7, 2005, which was the last date on which he could have sought direct review by the Supreme Court.” Id. at *3 ; see generally 28 U.S.C. § 2244(d)(1)(A).
Roughly seven years later, in June 2012, the Supreme Court decided Miller. The Court held that a mandatory, life-without-the-possibility-of-parole sentence imposed on a homicide offender who was a juvenile at the time of the offense violates the Eighth Amendment. The concern motivating the Court's decision was that such a sentencing scheme precludes consideration of “how children are different” from adults. Miller, 132 S.Ct. at 2469. The Court noted that “it is the odd legal rule that does not have some form of exception for children,” id. at 2470, and cited its decisions in Roper, 543 U.S. at 572–73, 125 S.Ct. 1183, which categorically barred the death penalty for juveniles, and Graham v. Florida, 560 U.S. 48, 82, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which categorically barred life-without-parole sentences for juvenile nonhomicide offenders. Unlike in Roper and Graham, however, the Miller Court did “not categorically bar a penalty for a class of offenders or type of crime.” Miller, 132 S.Ct. at 2471. Rather, the Court “mandate[d] only that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty.” Id.
Just under one year later, in June 2013, Johnson sought collateral review of his sentence by filing a petition pursuant to 28 U.S.C. § 2254. Johnson argued that his sentence violates the Eighth Amendment because Miller applies retroactively on collateral review. He requested that the district court vacate his sentence and order a new sentence consistent with Miller. The district court found that Johnson's claim was justiciable and properly exhausted, but untimely. The court explained that “a petitioner has only one year from the time his state-court conviction becomes final in which to apply for a writ of habeas corpus,” unless, as relevant here, “the constitutional right asserted by the petitioner is ‘newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.’ ” Johnson, 2013 WL 5663068, at *2 (quoting 28 U.S.C. § 2244(d)(1)(C) ). The court found that the Supreme Court had not made the Miller rule retroactive, and therefore dismissed Johnson's petition as untimely. The court, however, granted a certificate of appealability “as to the specific issue regarding whether the new constitutional rule announced in Miller is retroactively applicable to cases on collateral review.” J.A. 96. This appeal followed.
Before turning to the question of the Miller rule's retroactivity, we must first address a threshold jurisdictional question. Respondent–Appellee Henry Ponton (the “Warden”) contends that Johnson's claim is nonjusticiable as moot because, under Virginia's three-time offender law, even if we invalidate his sentence under Miller, Johnson would still be parole ineligible.2 Johnson counters that constitutional challenges to sentences currently being served are not moot, and we agree. Justiciability is a question of law that we review de novo. See Green v. City of Raleigh, 523 F.3d 293, 298 (4th Cir.2008). That review, however, is largely circumscribed by Supreme Court precedent.
The Supreme Court held in Walker v. Wainwright, 390 U.S. 335, 88 S.Ct. 962, 19 L.Ed.2d 1215 (1968) (per curiam), that a habeas petition is not moot where, if successful, the petitioner would not be released because he would be subject to another sentence. See id. at 337, 88 S.Ct. 962 (). This reasoning applies even where the same sentence might await a successful habeas petitioner due to other convictions. See Mancusi v. Stubbs, 408 U.S. 204, 205–06, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). These cases establish that a person “confined under a sentence from which he has not been unconditionally released ... can validly contest [that sentence] in federal court.” Adamson v. Lewis, 955 F.2d 614, 618 (9th Cir.1992). Applying this principle to the facts before us, we conclude that Johnson's petition is justiciable because he is currently serving the sentence he challenges.
Finding Johnson's appeal justiciable, we turn to the question whether the rule announced in Miller is retroactively applicable on collateral review. Before addressing Johnson's arguments, we provide an overview of the circumstances under which new rules of constitutional law apply retroactively.
In general, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.”3 Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). However, a rule may apply retroactively on collateral review if “the Supreme Court has itself held that the rule is retroactive, or [if] ‘the Court's holdings logically permit no other conclusion than that the rule is retroactive.’ ” San–Miguel v. Dove, 291 F.3d 257, 260 (4th Cir.2002) (citation omitted) (quoting Tyler v. Cain, 533 U.S. 656, 669, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (O'Connor, J., concurring)). Where the Supreme Court has not expressly made a rule retroactive through a holding, the Court's holdings logically prescribe the retroactivity of a rule where the rule falls into one of the two exceptions identified in Teague: (1) “the rule is substantive” rather than procedural, or (2) “the rule is a ‘watershed rul[e] of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007) (alteration in original) (quoting Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) ); see also Teague, 489 U.S. at 307, 109 S.Ct. 1060.
A new rule is substantive if it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense.”Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). A watershed rule of criminal procedure is one that “requires the observance of ‘those procedures that ... are implicit in the concept of ordered liberty.’ ” Teague, 489 U.S. at 307, 109 S.Ct. 1060 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in the judgment)). The watershed-rule exception is “extremely narrow.” Schriro v. Summerlin, 542 U.S. 348, 352, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Indeed, the Supreme Court has never found a new procedural rule to be “watershed” despite the fact that it has considered the question fourteen times. See Jennifer H. Berman, Comment, Padilla v. Kentucky: Overcoming Teague's “Watershed”...
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