Fourth Circuit Denies Successive Habeas Petition, Shrugs Off Defendant’s “Scylla and Charybdis” Bind

In re: Jarius Dama Phillips (No. 16-9566)

Defendant was convicted in Virginia state court for abduction, rape, and related charges. He was 17 years old at the time of the offense, and was sentenced to four terms of life imprisonment. Virginia has abolished traditional parole, thus these sentences amount to a life-without-parole sentence, as it is understood nationwide.

Phillips filed appeals in state court, to no avail. In 2013, Phillips filed a 28 USC § 2254 application, arguing that his life-without-parole sentence ran afoul of the Eighth Amendment, citing the Supreme Court’s decisions in Graham v. Florida and Miller v. Alabama. Phillips’ petition was dismissed due to being time-barred.

Phillips filed a second  2254 application in 2015, again challenging his sentences on the same grounds. The district court dismissed that action due to the fact that he had previously filed a 2254 petition in 2013. Phillips responded to this by filing a request with the Fourth Circuit for permission to file a successive 2254 petition, as required by statute. The Fourth Circuit notes that in order to receive authorization to file a successive 2254 application, the applicant must show (1) that the second application presents a claim that was not presented in the prior application, and (2) that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

Herein lies the issue: Phillips’ prior 2254 application did rely on Miller, but Miller was only made retroactive (and thus available to successive 2254 applicants) in 2016. Before the Fourth Circuit, Phillips now argues that his Miller claim was never “presented” in the prior application, since it was not technically available to him yet. The Fourth Circuit points to the Supreme Court’s analysis in Dodd v. United States, in which the Supreme Court acknowledged that this very issue would often arise in habeas corpus litigation: “an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and makes it retroactive within one year.” The Court acknowledged that this confluence of rules gave rise to the “potential for harsh results,” which it simply shrugged off. The Fourth Circuit follows suit, shrugging off Phillips’ case.

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