Lunsford v. Clarke

          UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          ROBERT J. KRASK, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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 at 1.

         Lunsford 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.

         Under 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 collateral review.”

         Lunsford's 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.

         Courts 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, 2017).^[1]

         The 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”).

         In 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.

         Recently, 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 sentences.

         Lunsford 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.

         Lunsford 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).^[2] 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.

         Lunsford 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.

         By copy 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 a ...