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Media Alerts - Clem v. Fleming, Warden, Keen Mountain Correctional Center -- Fourth Circuit
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December 7, 2016
  Clem v. Fleming, Warden, Keen Mountain Correctional Center -- Fourth Circuit
Common Courtesy - Fourth Circuit Instructs District Court to Wait for Virginia Supreme Court's Ruling Before Resolving Habeas Petition

Areas of Law: Constitutional Law, Criminal Law, Habeas Corpus

Issue Presented: Whether the Virginia statute that mandates life imprisonment without parole for juveniles convicted of capital murder violates the United States Supreme Court's holding in Miller v. Alabama, 132 S. Ct. 2455 (2012).

Brief Summary: The United States Court of Appeals for the Fourth Circuit vacated the district court's order denying Jason Clem's successive habeas petition. Clem argued that his sentence as a juvenile to life without parole violated the Eighth Amendment, and the Supreme Court's ruling in Miller v. Alabama, 132 S. Ct. 2455 (2012). The Fourth Circuit remanded the case, but instructed the district court not to rule on Clem's petition until after the Supreme Court of Virginia rules on Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014), a case challenging the same Virginia sentencing statute.

Extended Summary: On March 8, 2004, Clem was indicted in Virginia for capital murder after he hit a co-worker with a hammer and then stabbed the co-worker with a knife. The co-worker died because of the attack.

On May 12, 2005, a jury found Clem guilty of capital murder. Because Clem was 16-years old at the time of his conviction, the judge instructed the jury that it could not sentence Clem to death. Instead, under Virginia law the jury could either impose a sentence of life imprisonment, or life imprisonment with a fine up to $100,000. The jury returned a verdict of life imprisonment with a $100,000 fine. After a sentencing hearing where the judge heard evidence of Clem's "tumultuous upbringing and history of mental illness" the judge found "no reason to deviate from the jury verdict," and imposed a sentence of life without parole and a $100,000 fine.

The Supreme Court of Virginia denied relief on direct appeal. Clem also unsuccessfully filed a state habeas petition wherein he argued that sentencing a juvenile to life without parole was cruel and unusual punishment. The Supreme Court of Virginia found Clem was procedurally barred from making the claim because it had not been raised on direct appeal. The United States District Court for the Western District of Virginia also rejected Clem's federal habeas petition where he presented similar arguments.

When the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) seven years later, Clem filed an authorized successive habeas petition in district court, challenging his sentence. In Miller, the Court held that the Eighth Amendment prohibits a mandatory life sentence without the possibility of parole for juveniles. Miller also requires a judge or jury to consider mitigating circumstances, including the juvenile's youth and attendant circumstances, during sentencing. On review of Clem's petition, the district court assumed, without deciding, that Miller applied retroactively, and found that Clem was excused from exhausting all of his state remedies before filing a federal habeas petition. However, the district court denied Clem's petition, finding that the judge in the original sentencing hearing considered mitigating factors consistent with the Miller requirements. While Clem's appeal to the Fourth Circuit was being decided, the United States Supreme Court expressly declared that the Miller rule is a substantive rule that applies retroactively. Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

The Fourth Circuit found that Clem had not exhausted all his state remedies because he never raised a Miller claim in the state court. However, the court reasoned that requiring exhaustion would provide no real remedy for Clem because of Virginia's statute of limitations for habeas petitions.

The Fourth Circuit also instructed the district court to wait for the Supreme Court of Virginia to rule in Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014), before ruling on Clem's habeas petition. Jones challenged the same Virginia statute that Clem challenged in his petition. The Supreme Court of Virginia ruled on Jones after Clem's federal habeas petition was already dismiss. Even though the Supreme Court of Virginia assumed that the Miller rule applied retroactively when deciding Jones, the United States Supreme Court vacated the ruling. The Supreme Court remanded Jones, and instructed the Supreme Court of Virginia to re-consider Jones' petition, because the Supreme Court officially declared that the Miller rule applied retroactively in Montgomery. The outcome in Jones may give Clem a state remedy that he has yet to exhaust or may allow the federal district court to rule because Clem has exhausted all his state remedies.

In a brief concurrence, Senior Judge Davis noted that the Supreme Court of Virginia already assumed the ruling in Miller applied when deciding Clem's petition, so the Court's announcement in Montgomery that Miller applied retroactively should be inconsequential. Judge Davis also reasoned that determining whether a state law violates the Eighth Amendment under Miller and Montgomery is a federal issue, not a state issue.

To read the full opinion, click here.

Panel: Judges Traxler and Duncan, and Senior Judge Davis.

Argument Date: 09/20/2016

Date of Issued Opinion: 10/19/16

Docket Number: No. 14-6682

Decided:
Vacated and remanded by unpublished per curiam opinion. Senior Judge Davis wrote a separate concurring opinion.

Case Alert Author: Fernando Kirkman, Univ. of Maryland Carey School of Law

Counsel:
ARGUED: Amy Lynn DeLine, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

ON BRIEF: Guy S. Neal, Matthew J. Warren, SIDLEY AUSTIN LLP, Washington, D.C., for Appellant. Mark R. Herring, Attorney General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Author of Opinion:
Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/07/2016 11:25 AM     4th Circuit  

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