United States District Court, E.D. Virginia, Norfolk Division
UNITED STATES MAGISTRATE JUDGE'S REPORT AND
J. KRASK, UNITED STATES MAGISTRATE JUDGE.
Keith Donaldo Lunsford (“Lunsford”), submitted a
pro se petition, pursuant to 28 U.S.C. § 2254,
on January 23, 2017, while incarcerated in Virginia. ECF No.
1. In the Circuit Court for the City of Hampton, a jury
convicted Lunsford of three counts of use of a firearm, two
counts of malicious wounding, and one count of first-degree
murder. Id. at 1. Lunsford was then a juvenile, but
was tried as an adult, and accordingly was sentenced by the
court rather than by the jury. Va. Code Ann. §
16.1-272(A) (West 2014). On May 5, 2009, the trial judge
sentenced Lunsford to life plus 33 years in prison. ECF No. 1
appealed to the Virginia Court of Appeals, which denied his
petition on December 16, 2009. Id. at 2. Lunsford
then appealed to the Virginia Supreme Court, which refused
his petition on August 27, 2010. Id. On January 28,
2016, Lunsford filed a writ of habeas corpus in the Circuit
Court for the City of Hampton, alleging ineffective
assistance of counsel. Id. at 3.
28 U.S.C. § 2244(d)(1)(C), a habeas petitioner has one
year to file a petition from “the date on which the
constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
habeas claim is based on the Supreme Court's decisions in
Miller v. Alabama, 567 U.S. 460 (2012) and
Montgomery v. Louisiana, 136 S.Ct. 718 (2016).
Lunsford filed his state habeas petition on January 28, 2016,
within one year of Montgomery, which was decided on
January 25, 2016, but nearly four years after
Miller. The petition was dismissed on January 23,
2017. ECF No. 8 at 2. Lunsford did not appeal to the Supreme
Court of Virginia, but filed his federal petition the same
day. Id. On April 19, 2017, respondent filed a Rule
5 answer and motion to dismiss, arguing that
Montgomery did not announce a new rule of
constitutional law, but merely held that the Miller
rule had retroactive effect. ECF Nos. 6-8. Respondent argues
that Lunsford's petition should therefore be dismissed as
untimely. ECF No. 8 at 2-3; see Dodd v. United
States, 545 U.S. 353, 357-58 (2005) (holding that the
one-year limitation period begins to run on the date on which
the Court “initially recognized” the right
asserted in a petitioner's motion, not the date on which
the right was made retroactive). Lunsford responds that
Montgomery announced a new rule of constitutional
law that was substantively different than the rule announced
in Miller. According to Lunsford, Miller
ruled that mandatory sentencing schemes which subject
juveniles to life imprisonment without parole are
unconstitutional, and Montgomery expanded that rule
to also include discretionary sentencing schemes.
have routinely rejected Lunsford's position that
Montgomery announced a new rule of constitutional
law, and have held § 2254 petitions to be untimely when
they were filed within one year of Montgomery, but
not within one year of Miller. See, e.g., Thomas
v. Clarke, No. 3:16cv962, 2017 WL 4544675, at *3 (E.D.
Va. Oct. 11, 2017) (Payne, J.), appeal docketed, No.
17-7415 (4th Cir. Oct. 24, 2017); United States v.
Johnson, No. 3:01cr304, 2017 WL 3082660, at *3 (E.D. Va.
July 19, 2017) (Lauck, J.), appeal docketed, No.
17-7030 (4th Cir. Aug. 11, 2017); Malvo v. Mathena,
259 F.Supp.3d 321, 330 (D. Md. 2017); Gray v.
Dorethy, No. 17 C 258, 2017 WL 4263985, at *2-3 (N.D.
Ill. Sep. 26, 2017); Crockett v. Cain, No. 15-319,
2016 WL 7717434, at *4 n.27 (E.D. La. Dec. 1, 2016),
report and recommendation adopted, 2017 WL 111180
(E.D. La. Jan. 11, 2017); Hauser v. Cain, No.
14cv2654, 2016 WL 4703974, at *4 (W.D. La. July 18, 2016),
report and recommendation adopted, 2016 WL 4703509
(W.D. La. Sept. 6, 2016); Young v. Biter, No.
CV16-520-JLS, 2016 WL 4775465, at *3 (C.D. Cal. July 8,
2016), report and recommendation adopted, 2016 WL
4770027 (C.D. Cal. Sept. 12, 2016). All of these courts have
concluded that a petitioner alleging a
Miller/Montgomery violation must file a petition
within one year of the date of the Miller decision
on June 25, 2012. See Thomas, 2017 WL 4544675, at
*3. To quote the United States District Court for the
District of Arizona, “[a]t this point, everyone seems
to be in agreement that Montgomery did not create a
new claim.” Amaral v. Ryan, No.
CV-16-594-PHX-JAT, 2017 WL 4349390, at *1 (D. Az. Oct. 2,
Fourth Circuit has not had occasion to specifically rule on
this issue, but it has, on several occasions, described
Montgomery as a “clarification” of
Miller. See Pinckney v. Clarke, 697
Fed.Appx. 768, 769 (4th Cir. 2017) (“clearly
established federal law as determined in Miller and
then clarified by Montgomery”); United
States v. Under Seal, 819 F.3d 715, 719 (4th Cir. 2016)
(“in Montgomery . . . the Supreme Court
clarified that Miller contained both a substantive
and procedural component”).
support of Lunsford's argument that Miller
applies to mandatory sentences, and Montgomery
applies to discretionary sentences, Lunsford cites language
from the Montgomery decision stating that courts
must do more than simply consider a criminal offender's
youth in sentencing. ECF No. 12 at 2-3. However, even in the
language which Lunsford quotes, the Supreme Court makes it
clear that it is interpreting Miller, not
establishing a new rule. See Montgomery, 136 S.Ct.
at 734 (“Miller, then, did more than require a
sentencer to consider a juvenile offender's youth before
imposing life without parole;” “Miller
determined that sentencing a child to life without parole is
excessive for all but ‘the rare juvenile offender whose
crime reflects irreparable corruption;'”
“Miller did bar life without parole [ ] for all but the
rarest of juvenile offenders”). Throughout the
quotations cited by Lunsford, the Supreme Court explains, or
clarifies, the holding of Miller.
this Court held that Miller applies to discretionary
sentences, as well as mandatory sentences. Malvo v.
Mathena, 254 F.Supp.3d 820, 827 (E.D. Va. 2017)
(Jackson, J.), appeal docketed, No. 17-6758 (4th
Cir. June 14, 2017). This holding, however, was not based on
Montgomery announcing a new rule. Rather, this Court
stated that “the rule announced in Miller
applies to all situations in which juveniles receive a
life-without-parole sentence, ” and that, “[i]n
Montgomery, the Supreme Court clarified the scope of
the rule in Miller.” Id.; see
also Dumas v. Clarke, No. 2:13cv398, 2017 WL 3446640, at
*5-6 (E.D. Va. July 14, 2017) (Leonard, J.). In other words,
this Court was not recognizing a split between
Miller and Montgomery, as Lunford argues,
but was instead recognizing that Miller, as
clarified by Montgomery, applies to discretionary
cites to the Tenth Circuit's opinion in Cardoso v.
McCollum, 660 Fed.Appx. 678, 680 (10th Cir. 2016),
particularly its statement that “[i]n
Montgomery, the Court described
Miller's holding as perhaps broader than some
previously believed.” This may be true, but the Tenth
Circuit's statement still identifies Montgomery
as describing Miller's holding, rather than
breaking new ground. Further, the Tenth Circuit in
Cardoso expressed no opinion and made no ruling with
respect to Montgomery, but merely remanded the case
to the district court to consider Montgomery in the
first instance. Id. at 681.
makes two further arguments that Montgomery
recognized a new rule of law: (1) the respondent, in a
previous oral argument, argued that Montgomery was a
new rule of law; and (2) the dissenting opinion in
Montgomery accused the majority of rewriting
Miller. ECF No. 12 at 3-4. According to the
petitioner, the respondent previously argued to the Supreme
Court of Virginia in Jones v. Commonwealth, 795
S.E.2d 705 (Va. 2017) that Montgomery was a
“substantial expansion of Miller.”
Id. That the respondent previously took this
position is not particularly compelling, and the Court notes
that the Supreme Court of Virginia rejected that argument in
its ultimate opinion. Jones, 795 S.E.2d at 709,
721-22 (stating that “[t]he holding in
Montgomery tracked that in Miller”
and holding that Montgomery did not expand
Miller to cover discretionary
sentences). As for the dissent in Montgomery,
while the dissent accused the majority of breaking new
ground, the majority denied doing just that, repeatedly
formulating its opinion as an interpretation of Miller.
See Montgomery, 136 S.Ct. at 735 (“That
Miller did not impose a formal factfinding
requirement does not leave States free to sentence a child
whose crime reflects transient immaturity to life without
parole. To the contrary, Miller established that
this punishment is disproportionate under the Eighth
Amendment.”). Ultimately, this Court is bound by the
holding of the majority opinion, not the dissent's
characterization of that opinion.
was required to file his petition for habeas corpus by June
25, 2013, one year after Miller. Instead, he filed
his petition on January 28, 2016. For this reason, his
petition is untimely, and the Court RECOMMENDS that
respondent's motion to dismiss the petition be GRANTED.
of this Report and Recommendation, the parties are notified
that pursuant to 28 U.S.C. § 636(b)(1)(C):
1. Any party may serve upon the other party and file with the
Clerk written objections to the foregoing findings and
recommendations within 14 days from the date of mailing of
this report to the objecting party, see 28 U.S.C.
§ 636(b)(1), computed pursuant to Rule 6(a) of the
Federal Rules of Civil Procedure. Rule 6(d) of the Federal
Rules of Civil Procedure permits an extra three (3) days, if
service occurs by mail. A party may respond to any other
party's objections within 14 days after being served with