United States District Court, E.D. Virginia, Alexandria Division
O' GRADY UNITED STATES DISTRICT JUDGE.
Reyes DeJesus, a Virginia inmate, initially filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 pro se, to challenge a life sentence imposed in
1998 for his conviction of first degree murder in the
Richmond City Circuit Court. Counsel subsequently noticed an
appearance on behalf of petitioner. [Dkt. No. 7] On April 5,
2017, respondent filed a Rule 5 Answer and a Motion to
Dismiss the petition with a supporting brief. [Dkt. 8 -10] On
April 22, 2017, petitioner submitted a reply to the Motion to
Dismiss with a supporting brief [Dkt. No. 13-14] Accordingly,
the matter is now ripe for disposition. For the reasons that
follow, respondent's Motion to Dismiss the petition must
1998, a jury convicted DeJesus of first degree murder and use
of a firearm in the commission of a felony in the death of
Diedre Mikos. DeJesus was seventeen (17) years old when he
committed the offenses. The trial court sentenced DeJesus to
life in prison for the murder conviction pursuant to Va. Code
§16.1-272 and to three additional years for the firearms
offense. Case NosCR97-1802 and-1803.
took a direct appeal, arguing that the evidence was
insufficient to sustain the convictions and that the court
erred at sentencing in considering certain evidence regarding
his criminal history. The Court of Appeals of Virginia denied
the petition for appeal on July 22, 1998, sub norn,
Martinez v. Commonwealth, R. No. 0267-98-2 (Va. Ct.
App. July 22, 1998); Resp. Ex. A. The Supreme Court of
Virginia refused a second-tier appeal on January 11, 1999.
Martinez v. Commonwealth, R. No. 982022 (Va. Jan.
June, 2001, petitioner, through counsel, filed a pleading
captioned as a Motion to Vacate Pursuant to Baker v.
Commonwealth in the Richmond Circuit Court, alleging
that the court lacked jurisdiction to try him as an adult
because his father was not notified of the initiation of
criminal proceedings. Case Nos. F-97-1802 through -1804. The
motion was denied in a Decision and Order dated October 30,
2001, on the holdings that (1) any Baker violation
would not have rendered petitioner's convictions void,
but merely voidable, and (2) the Motion to Vacate was filed
untimely and the claim was barred. DeJesus appealed that
decision to the Supreme Court of Virginia, and it refused the
appeal on July 9, 2002. (Record No. 020260).
reports, and the Case Status and Information website of the
Supreme Court of Virginia confirms, that DeJesus filed a
counseled petition for a writ of habeas corpus in that Court
on July 16, 2003 which was dismissed as untimely pursuant to
Va. Code §8.01-654(A)(2) on December 5, 2003.
Martinez v. Warden, Sussex II Corr. Center. R. No.
April 21, 2014, DeJesus filed a "Motion to Vacate Life
Sentence" in the Richmond Circuit Court, asserting that
his sentence violates the rule announced by the United States
Supreme Court in Miller v. Alabama, 567 U.S. 460
(2012). Because petitioner used his original 1997 criminal
case numbers in filing the motion, the court dismissed the
action as untimely pursuant to Va. Sup. Ct. Rule 1:1, which
provides that "[a]ll final judgments, orders and
decrees ... shall remain under the control of the
trial court and subject to be modified, vacated, or suspended
for twenty-one days after the date of entry, and no
longer." Apparently, petitioner did not appeal that
decision. See Pet., Dkt. No. 1 at p. 5.
next turned to the federal forum and filed this action for
§ 2254 relief by placing his petition into his
prison's mailing system on January 16, 2017. Pet. at 15;
see Houston v. Lack, 487 U.S. 266 (1988). He makes
the sole claim that the life sentence based on a conviction
of murder imposed while he was juvenile amounts to cruel and
unusual punishment in violation of the Eighth Amendment
because it does not comport with Montgomery v.
Louisiana, ___U.S. ___, 136 S.Ct. 718 (2016) and
Virginia's geriatric release provision is
"inadequate." Pet. at 6.
opinion upholding DeJesus' conviction on direct appeal,
the Court of Appeals of Virginia described the evidence as
.... Rachel Carter arranged for [DeJesus] to sell cocaine to
Katherine Dalrymple at Carter's home. The victim, Diedre
Mikos, lived with Carter. On the day of the meeting,
Dalrymple weighed [DeJesus'] drugs and told him that the
weight was off by "about four grams." [DeJesus]
agreed to make up the deficiency, but needed a ride to the
area of Floyd and Granby streets. Carter drove [DeJesus] to
that area. [DeJesus] told Carter to stay in the car. After
about ten minutes, [DeJesus] returned to the car and told
Carter to wait another twenty-five minutes for him because he
had to cook the crack cocaine.
However, [DeJesus] returned to Carter's home without her,
and told Dalrymple that Carter had gone to the store to buy
[DeJesus] and Dalrymple went into the living room. Meanwhile,
Mikos and Brian Fisher were in the kitchen making pizza. From
the kitchen window, Mikos saw someone in the backyard
"creeping" around her car. Fisher let his dog out
and gave the command to attack. The dog caught the man by the
arm, but the man "shook him off." Once the dog
returned to the house, [DeJesus] became more nervous after
learning the dog attacked the man. [DeJesus] and Dalrymple
returned to the living room. Dalrymple began to weigh her
marijuana that she wanted to exchange for some of
[DeJesus'] cocaine. At this point, [DeJesus] pulled out a
gun, put it on Dalrymple's head, and demanded all her