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Malvo v. Mathena

United States Court of Appeals, Fourth Circuit

June 21, 2018

LEE BOYD MALVO, Petitioner - Appellee,
v.
RANDALL MATHENA, Chief Warden, Red Onion State Prison, Respondent - Appellant. HOLLY LANDRY, Amicus Supporting Appellee. LEE BOYD MALVO, Petitioner - Appellee,
v.
RANDALL MATHENA, Chief Warden, Red Onion State Prison, Respondent - Appellant. HOLLY LANDRY, Amicus Supporting Appellee.

          Argued: January 23, 2018

          Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:13-cv-00375-RAJ-LRL; 2:13-cv-00376-RAJ-LRL)

         ARGUED:

          Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant.

          Craig Stover Cooley, Richmond, Virginia, for Appellee.

         ON BRIEF:

          Mark R. Herring, Attorney General, Trevor S. Cox, Acting Solicitor General, Donald E. Jeffrey III, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellant.

          Michael Arif, ARIF & ASSOCIATES, P.C., Fairfax, Virginia, for Appellee.

          Danielle Spinelli, Beth C. Neitzel, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amicus Curiae.

          Before NIEMEYER, KING, and DIAZ, Circuit Judges.

          NIEMEYER, CIRCUIT JUDGE.

         In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence. After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.

         Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder - both of which he also committed when 17 years old - and received two additional terms of life imprisonment without parole.

         After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18. It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court's new rules. See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

         In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo's life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo's sentencings were not satisfied during his sentencings. Accordingly, we affirm the district court's order vacating Malvo's four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his "crimes reflect permanent incorrigibility" or (2) whether those crimes instead "reflect the transient immaturity of youth, " in which case he must receive a sentence short of life imprisonment without the possibility of parole. Montgomery, 136 S.Ct. at 734.

         I

         A

         Over the course of almost seven weeks in the fall of 2002, Lee Malvo and John Muhammad - better known as the "D.C. Snipers" - murdered 12 individuals, inflicted grievous injuries on 6 others, and terrorized the entire Washington, D.C. metropolitan area, instilling an all-consuming fear into the community.

         The violence began on September 5, 2002, when Malvo - who was at the time 17 years old - ran up to a man's car in Clinton, Maryland, shot him six times with a .22 caliber handgun, and stole his laptop and $3, 500 in cash. See Muhammad v. Kelly, 575 F.3d 359, 362 (4th Cir. 2009). Ten days later, again in Clinton, Maryland, Malvo approached a man who was ...


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