United States District Court, E.D. Virginia, Alexandria Division
Jarrett D. Holden, Petitioner,
Harold Clarke, Respondent.
T. S. ELLIS, III, District Judge.
Jarrett D. Holden, a Virginia inmate proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his life sentence following Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012). On June 20, 2014, respondent filed a Motion to Dismiss and Rule 5 Answer, with a supporting brief and numerous exhibits. Petitioner was given the opportunity to file responsive materials, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), and he filed a reply on July 8, 2014. For the reasons that follow, respondent's Motion must be granted, and the petition must be dismissed.
On April 10, 1998, petitioner was convicted by a jury of one count of capital murder, one count of attempted robbery, and one count of use of a firearm in the commission of attempted robbery in the Circuit Court for the County of Accomack. Commonwealth v. Holden, Case no. CR97-141. Petitioner committed these crimes when he was seventeen years old. On June 11, 1998, he was sentenced to life in prison without parole plus thirteen years. Both the Court of Appeals of Virginia and the Supreme Court of Virginia denied his petition for appeal. See Holden v. Commonwealth, R. No. 1554-98-1; Holden v. Commonwealth, R. No. 991372. On September 25, 2000, petitioner filed a petition for a writ of habeas corpus in the trial court. alleging that the trial court erred in refusing to appoint a ballistics expert for the defense. The trial court found that petitioner's claim was barred by Slavton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974), and dismissed the petition on November 30, 2000. Holden v. John Tavlor. Warden, Case No. CL96-00. Petitioner did not appeal, but filed a second habeas petition in the Supreme Court of Virginia on December 20, 2000. On March 19, 2001, the court dismissed the petition as untimely filed. Holden v. Warden, Sussex I State Prison, R. No. 003062.
Petitioner filed his first federal petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on or about May 4, 2001. See Holden v. Braxton, Case No. 1:01-cv-709-TSE. His petition was dismissed as time-barred on April 22, 2002. The United States Court of Appeals for the Fourth Circuit dismissed the ensuing appeal on August 20, 2002. See Holden v. Braxton. Case No. 02-6816 (4th Cir. Aug. 20, 2002).
On July 17, 2013, petitioner filed a second federal petition for a writ of habeas corpus, asserting that his sentence of life imprisonment without parole, imposed for a crime committed when he was seventeen years old, violated the U.S. Supreme Court's decision in Miller, 132 S.Ct. at 2455, which held, for the first time, that the imposition of a life sentence without parole on a juvenile violates the Eighth Amendment. Along with his petition, petitioner enclosed letter stating that he had been granted authorization to file a successive § 2254 petition from the Fourth Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A). See Holden v. Clarke, Case No. 1:13-cv-897 (TSE/TRJ), Review of the Fourth Circuit's docket confirms that the court received petitioner's § 2244 motion on May 31, 2013 and granted this motion on June 19, 2013, permitting the filing of a successive § 2254 petition. Petitioner attached his § 2254 petition, executed on May 22, 2013, to his § 2244 motion, as required by Fourth Circuit Rule 22(d). See In re: Holden, Case No. 13-264(4th Cir. June 19, 2013). On September 20, 2013, the petition was dismissed without prejudice on the ground that petitioner had failed to exhaust his claim before the Supreme Court of Virginia. See Case No. l:13-cv-897, Dkt. 3. Petitioner then appealed this dismissal, and the Fourth Circuit denied a certificate of appealability and dismissed the appeal on February 20, 2014. See Holden v. Clarke, Case No. 13-7629 (4th Cir. Feb. 20, 2014).
In the meantime, petitioner filed a petition for a writ of habeas corpus raising his Miller claim in the Supreme Court of Virginia. This petition was dismissed as procedurally defaulted and untimely filed, pursuant to Virginia Code §§ 8.01-654(A)(2), (B)(2), on November 7, 2013. Holden v. Dir. of the Deo't of Corr., R. No. 131604. Petitioner then re-filed his federal petition here on November 21, 2013. By Order dated January 10, 2014, this petition was dismissed without prejudice to petitioner's ability to move a panel of the Fourth Circuit for authorization to file a successive petition, pursuant to 28 U.S.C. § 2244(b)(2)(B). See Dkt. 3. On appeal, the Fourth Circuit vacated the dismissal Order, on March 11, 2014, finding that his motion for authorization to file a successive petition was "unnecessary, " as the court had "already granted Holden the requisite authorization under § 2244 [on June 19, 2013]." See In re: Holden, Case No. 14-140 (4th Cir. Mar. 11, 2014). Therefore, the petition was reinstated on April 30, 2014, and respondent was directed to show cause why the writ should not be granted. Dkt. 9.
The sole argument petitioner raises in the instant petition is that his sentence of life imprisonment without the possibility of parole, imposed for a crime committed as a juvenile violates the Eighth Amendment under the rule in Miller, 132 S.Ct. at 2455. See, e.g., Pet., at 6. He argues that Miller is a new rule of constitutional law, made retroactive to his case pursuant to Teaeue v. Lane., 489 U.S. 288 (1989). Respondent argues that (1) the instant petition is untimely, and (2) Miller is not applicable to petitioner's case. For the reasons that follow, respondent's Motion to Dismiss must be granted, as it appears on this record that the petition is untimely filed. Alternatively, the petition fails on the merits, as the rule in this circuit is that Miller is not retroactive to cases on collateral review.
A § 2254 petition for a writ of habeas corpus must be dismissed if filed more than one year after (1) the judgment of conviction becomes final; (2) the removal of any state-created impediment to the filing of the petition; (3) recognition by the United States Supreme Court of the constitutional right asserted; or (4) the factual predicate of the claim could have been discovered with due diligence. 28 U.S.C. § 2244(d)(l)(A)-(D). As petitioner's conviction became final fifteen years ago, petitioner does not argue that the instant petition is timely under § 2244(d)(1)(A). Rather, he asserts that his petition is timely under § 2244(d)(1)(C), as he states that Miller established a new rule of constitutional law that is retroactive to cases on collateral review. Accordingly, whether this petition is timely depends on (1) whether petitioner filed the instant petition within one year of the decision in Miller; and (2) whether Miller applies retroactively to cases on collateral review.
The timeliness of the instant petition is a complicated issue for which there is no disposition controlling precedent. The timeline of this case is as follows;
>June 25, 2012: The United States Supreme Court issues its decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).
May 22, 2013: Petitioner signs and executes his § 2254 petition. Case No. 1:13-cv-897 (TSE/TRJ), Dkt. 2, at 10.
May 31, 2013: The Fourth Circuit receives petitioner's motion for authorization to file a successive § 2254 Petition. Pursuant to Fourth Circuit Rule 22(d), petitioner's § 2254 petition is ...