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;
Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant.
Stover Cooley, Richmond, Virginia, for Appellee.
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,
Danielle Spinelli, Beth C. Neitzel, WILMER CUTLER PICKERING
HALE AND DORR LLP, Washington, D.C., for Amicus Curiae.
NIEMEYER, KING, and DIAZ, Circuit Judges.
NIEMEYER, CIRCUIT JUDGE.
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.
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
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).
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.
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
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