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In re Phillips

United States Court of Appeals, Fourth Circuit

January 16, 2018

In re: JARIUS DAMAR PHILLIPS, Movant.

          Argued December 5, 2017

         Motion for authorization under 28 U.S.C. § 2244 to file a successive habeas petition under 28 U.S.C. § 2254 denied by published opinion. Judge Niemeyer wrote the opinion, in which Judge Shedd and Judge Duncan joined.

         ARGUED:

          Damon Clarke Andrews, KIRKLAND & ELLIS LLP, Washington, D.C., for Movant.

          Joseph Christian Obenshain, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent.

         ON BRIEF:

          Robert L. Littlehale, Matthew S. Brooker, James Bowden, Jr., KIRKLAND & ELLIS LLP, Washington, D.C., for Movant.

          Victoria N. Pearson, Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Respondent.

          Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.

          NIEMEYER, CIRCUIT JUDGE:

         On June 24, 2016, Jarius Phillips filed a motion in this court under 28 U.S.C. § 2244(b)(3)(A), seeking authorization to file a second or successive application in the U.S. District Court for the Eastern District of Virginia for a writ of habeas corpus to challenge his 2001 sentence of four life terms plus 45 years imposed by a Virginia state court for nonhomicide crimes he committed as a juvenile. His motion contends that his sentence violates the Eighth Amendment's Cruel and Unusual Punishments Clause, as construed in: Graham v. Florida, 560 U.S. 48, 75 (2010) (holding that, under the Eighth Amendment, juvenile offenders convicted of nonhomicide crimes may not be sentenced to life in prison without parole and that such offenders must be given "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation"); Miller v. Alabama, 567 U.S. 460, 476, 483 (2012) (holding that, under the Eighth Amendment, juvenile homicide offenders may not receive "mandatory life-without-parole sentences" and that, before sentencing such offenders to life without parole, the sentencing court must consider their "youth and attendant characteristics" (emphasis added)); and LeBlanc v. Mathena, No. 2:12-cv-340, 2015 WL 4042175 (E.D. Va. July 1, 2015) (granting habeas relief to a Virginia juvenile nonhomicide offender serving two life terms with the possibility of "geriatric release" at the age of 60 after concluding that Virginia courts had unreasonably applied Graham).

         After we affirmed the decision in LeBlanc, see 841 F.3d 256 (4th Cir. 2016), we appointed counsel to represent Phillips on his motion in this case. After doing so, however, the Supreme Court reversed our decision in LeBlanc. See Virginia v. LeBlanc, 137 S.Ct. 1726, 1729 (2017) (per curiam) (holding that "it was not objectively unreasonable for the state court to conclude that, because [Virginia's] geriatric release program employed normal parole factors, it satisfied Graham's requirement that juveniles convicted of a nonhomicide crime have a meaningful opportunity to receive parole").

         We now deny Phillips's motion because the claim that he seeks to present to the district court was raised in his first federal application for a writ of habeas corpus, and therefore Phillips has not made a "prima facie showing" that his successive habeas application would allege a claim that was not "presented in a prior application, " as the statute requires. 28 U.S.C. § 2244(b)(3)(C); id. § 2244(b)(1).

         I

         In January 2001, a jury impaneled in the Circuit Court for the City of Newport News, Virginia, convicted Phillips of two counts of abduction with intent to defile, in violation of Va. Code Ann. § 18.2-48; one count of rape, in violation of § 18.2-61(A)(i); one count of object sexual penetration, in violation of § 18.2-67.2(A)(1); one count of malicious wounding, in violation of § 18.2-51; and one count ...


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