                                   PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                    No. 16-9566


In re: JARIUS DAMAR PHILLIPS,

            Movant.



Argued: December 5, 2017                                  Decided: January 16, 2018


Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.


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.
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,


                                             2
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 of robbery, in violation of

§ 18.2-58. Phillips committed these crimes on March 4, 2000, when he was 17 years old.

       After considering a presentence report and Virginia’s discretionary sentencing

guidelines, the trial court sentenced Phillips to four terms of life imprisonment on the

convictions for abduction with intent to defile, rape, and object sexual penetration, plus

20 years’ imprisonment for the malicious wounding conviction and 25 years’



                                            3
imprisonment for the robbery conviction. While Virginia had abolished traditional parole

for felony offenders, see Va. Code Ann. § 53.1-165.1, Phillips was nonetheless subject to

Virginia’s “geriatric release” program, which “allows older inmates to receive

conditional release under some circumstances,” LeBlanc, 137 S. Ct. at 1727 (citing Va.

Code Ann. § 53.1-40.01).

       Phillips appealed the judgments to the Court of Appeals of Virginia, which denied

his appeal by orders dated November 21, 2001, and February 5, 2002. The Supreme

Court of Virginia refused his further appeal on May 31, 2002, and denied his petition for

rehearing on July 30, 2002. Phillips filed a state habeas petition in the trial court on

September 12, 2003, which the court dismissed on November 10, 2003, as time-barred,

and the same court denied his motion for reconsideration on December 17, 2003. The

Virginia Supreme Court dismissed his petition for appeal on July 1, 2004, as untimely.

       Nearly 10 years later, on June 7, 2013, Phillips, acting pro se, filed an application

for a writ of habeas corpus in the U.S. District Court for the Eastern District of Virginia,

pursuant to 28 U.S.C. § 2254, claiming that he had been sentenced to life without parole

for crimes he had committed as a juvenile, in violation of the Eighth Amendment, and

seeking an order requiring the Newport News Circuit Court to resentence him. He

divided his Eighth Amendment claim, advancing two separate grounds for review. In

“Ground One,” he alleged that his sentence was unconstitutional because he “was a

juvenile convicted of a non-homicidal offense and given multiple life sentences without

the possibility of parole,” and for support, he cited and quoted at length from the

Supreme Court’s 2010 decision in Graham v. Florida. In “Ground Two,” he alleged,


                                             4
“Life in prison without possibility of parole sentence for juveniles violates [the] Eighth

Amendment,” and for support, he cited and quoted at length from the Supreme Court’s

2012 decision in Miller v. Alabama. In concluding, Phillips argued that his application

was timely under 28 U.S.C. § 2244(d) due to the Supreme Court’s decisions “in 2010 and

again [in] 2012,” “prohibiting life without possibility of parole to juvenile offenders.”

       Several months after filing his application, Phillips filed a motion for summary

judgment in which he succinctly repeated his argument that, because he “was a juvenile

when convicted of non-homicidal offenses and given (4) life terms plus 45 years,” his

sentence was “in clear violation of the United States Constitutional ban on cruel and

unusual punishment as set forth in Graham and Miller.” (Citations omitted).

       The Director of the Virginia Department of Corrections filed a motion to dismiss

Phillips’s habeas application, contending that his Eighth Amendment claim was untimely

under 28 U.S.C. § 2244(d)(1)(C), since, inter alia, Phillips had filed his habeas

application more than one year after the Supreme Court decided Graham. The Director

also filed an opposition to Phillips’s motion for summary judgment, arguing on the merits

that Phillips’s life sentences did not violate the rule in Graham because Phillips would be

eligible for parole under Virginia’s geriatric release program. In support, the Director

cited the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386,

402 (Va. 2010) (holding that Virginia’s geriatric release program provided juvenile

nonhomicide offenders serving life sentences with a meaningful opportunity for release

based on demonstrated maturity and rehabilitation, as required by Graham).




                                              5
       A magistrate judge recommended that the district court grant the Director’s

motion to dismiss Phillips’s habeas application on the ground that the application was

time-barred under § 2244(d)(1) and Phillips did not qualify for equitable tolling of the

time limitation. By order dated May 21, 2014, the district court adopted the magistrate

judge’s report and recommendation, dismissed Phillips’s habeas application with

prejudice, and declined to issue a certificate of appealability. On Phillips’s appeal, we

too denied a certificate of appealability and dismissed his appeal in an unpublished per

curiam order dated October 24, 2014.

       Nearly a year later, on October 15, 2015, Phillips filed a second application in the

Eastern District of Virginia for a writ of habeas corpus under § 2254, again challenging

the constitutionality of his life sentences for nonhomicide crimes he committed as a

juvenile and this time relying on the July 1, 2015 decision of the district court in LeBlanc,

which granted habeas relief to another Virginia juvenile nonhomicide offender sentenced

to life imprisonment. In LeBlanc, the district court concluded that Virginia courts had

unreasonably applied Graham in holding that the Commonwealth’s geriatric release

program provided juvenile nonhomicide offenders serving life sentences with the

necessary meaningful opportunity for release. By order dated May 20, 2016, the district

court in this case dismissed Phillip’s application without prejudice because Phillips had

failed to obtain a prefiling authorization from this court, as required by 28 U.S.C.

§ 2244(b)(3) for a second or successive habeas application.

       Phillips accordingly filed the current motion in this court on June 24, 2016, for an

order authorizing the district court to consider his second or successive habeas


                                             6
application. The motion alleges that Phillips’s life sentences for juvenile nonhomicide

offenses were unconstitutional as cruel and unusual punishments under Graham, Miller,

and the district court’s decision in LeBlanc.

       We placed Phillips’s motion in abeyance by order dated July 18, 2016, pending

our review of the district court’s decision in LeBlanc. After we affirmed the grant of

habeas relief in LeBlanc, we appointed counsel to represent Phillips in this proceeding.

After counsel’s appointment, but before any briefs were filed, the Supreme Court

reversed our decision in LeBlanc, holding that, under 28 U.S.C. § 2254(d)(1), “it was not

objectively unreasonable for the state court to conclude that, because the 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.” LeBlanc, 137 S. Ct. at 1729. We now address Phillips’s motion.


                                                II

       Before a person in state custody may file a second or successive habeas

application in a federal district court, he must obtain authorization from “the appropriate

court of appeals” by filing a motion “for an order authorizing the district court to consider

the application.” 28 U.S.C. § 2244(b)(3)(A). The court of appeals may grant such a

motion “only if it determines that the application makes a prima facie showing that [it]

satisfies the requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). As relevant here, the

application must thus make a prima facie showing: (1) that the second or successive

application presents a claim that was not “presented in a prior application,” id.



                                                7
§ 2244(b)(1); and (2) that such “claim relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable,” id. § 2244(b)(2)(A).

       The term “prima facie showing” means that it must at least “appear[] reasonably

likely” that the second or successive application satisfies the § 2244(b) requirements so as

to “warrant a fuller exploration by the district court” as to whether they are actually

satisfied. In re Williams, 330 F.3d 277, 281 (4th Cir. 2003) (emphasis added) (quoting

Bennett v. United States, 119 F.3d 468, 469–70 (7th Cir. 1997)); see also 28 U.S.C.

§ 2244(b)(4) (providing that “[a] district court shall dismiss any claim presented in a

second or successive application that the court of appeals has authorized to be filed unless

the applicant shows that the claim satisfies the requirements of [§ 2244]”). Moreover,

because § 2244 provides that a “court of appeals may authorize the filing of a second or

successive application only if it determines” that the applicant has made a prima face

showing as to § 2244(b)’s requirements, 28 U.S.C. § 2244(b)(3)(C) (emphasis added), we

have concluded that while the prima facie showing is a necessary condition to receiving

prefiling authorization, the statute does not limit this court to considering only this

necessary condition. See In re Vassell, 751 F.3d 267, 271 (4th Cir. 2014) (“[W]hile our

primary consideration in reviewing a request for authorization in this kind of case is

whether the applicant made the requisite prima facie showing,” nothing in “§ 2244

requires us to ignore other considerations and authorize the filing of a successive [habeas

application] that, for instance, would clearly be time-barred”).




                                             8
       Turning to the motion now before us, Phillips originally sought authorization to

file a second or successive habeas application challenging the constitutionality of his

sentences under Graham and Miller, as well as under the district court’s now reversed

decision in LeBlanc. With the benefit of counsel, however, Phillips has clarified his

position to assert that he “is relying on only Miller for purposes of this proceeding.” In

doing so, he contends that he is eligible for prefiling authorization under § 2244(b)(3)(C)

because he has made at least a prima facie showing (1) that his second or successive

habeas application would present a claim that “relies on” Miller; (2) that Miller

established “a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court”; and (3) that Miller was “previously unavailable” to him in

2013 when he filed his first federal habeas application because Miller was only “made

retroactive to cases on collateral review by the Supreme Court” in its 2016 decision in

Montgomery v. Louisiana, 136 S. Ct. 718, 732 (2016). He argues further, for essentially

the same reason, that when he filed his previous habeas application, he was legally

incapable of “presenting” a Miller claim, as the term “present” is used in § 2244(b)(1),

because Miller had not then become retroactive.           According to him, his second

application thereby now satisfies the requirements of both § 2244(b)(1) and (b)(2)(A).

       As already noted, to obtain authorization to file a second or successive application,

Phillips must first make a prima facie showing that his proposed application would

present a claim that was not presented in a prior application. 28 U.S.C. § 2244(b)(3)(C);

id. § 2244(b)(1) (providing in full, “A claim presented in a second or successive habeas




                                             9
corpus application under section 2254 that was presented in a prior application shall be

dismissed”). Phillips, however, has failed to make such a showing.

       In his 2013 application, Phillips relied extensively on Miller to attempt to obtain

habeas relief. In the second of the two grounds that he advanced for relief in that

application, he stated:

       GROUND TWO: Life in prison without possibility of parole sentence for
       juveniles violates Eighth Amendment[.] Miller v. Alabama[,] Nos[.] 10-
       9646, 10-9647[,] Argued March 20, 2012[,] Decided June 25, 2012[.]
       Decision of the United States Supreme Court, held that mandatory life
       imprisonment without parole for those under the age of 18 at the time of
       their crimes violates the Eighth Amendment’s prohibition on cruel and
       unusual punishment (See Atth[.] B[)].

                                       *    *      *

       Atth[.] B[.] Miller v Alabama

       Ground Two cont’d. [Miller] [s]tates “Mandatory life without parole for
       those under the age of 18 at the time of their crimes violates the Eighth
       Amendment prohibition on cruel and unusual punishment[.]”

       Also sentencing and punishment under Constitutional Amendment VIII
       states that “the Eighth Amendment prohibits a sentence of life without the
       possibility of parole for a child who committed a nonhomicide offense[.]”

       Again, [i]mposition of a State’s most severe penalties on juvenile offenders
       cannot proceed as though they were not children.

       Again [t]he characteristics of youth, and the way they weaken rationales for
       punishment[,] can render a life-without-parole sentence disproportionate
       punishment for a juvenile.

       The U.S. Supreme Court held that “the Eighth Amendment forbids a
       sentencing scheme that mandates life in prison without possibility of parole
       for juvenile offenders.[”]




                                           10
       In his current motion, Phillips seeks leave to file a successive habeas application to

present again a claim based on Miller, and therefore we must deny his motion for

authorization. See Williams, 330 F.3d at 282 (noting that “claims recycled from [the

applicant’s] previous § 2254 application . . . may not form the basis for the granting of

pre-filing authorization because review is barred under § 2244(b)(1)”).

       Phillips concedes that he “raised in his initial postconviction proceeding the Miller

claim he now seeks to advance in his second proceeding.” But he argues nonetheless that

he should be deemed as having not previously “presented” his Miller claim within the

meaning of § 2244(b)(1) because, at the time of his 2013 application, Miller had not been

made retroactively applicable to cases on collateral review. To make this argument, he

relies on language in In re Vial, 115 F.3d 1192 (4th Cir. 1997) (en banc), which stated

that “a new rule of constitutional law is not available to individuals seeking to file second

or successive motions for postconviction relief until the Supreme Court declares the

applicability of that particular rule to collateral proceedings,” id. at 1196. According to

Phillips, it follows from Vial that because it was unclear whether Miller would apply

retroactively to cases on collateral review when he filed his first federal habeas

application in June 2013, a Miller claim was not then “available” to him, and therefore he

was legally incapable of “presenting” such a claim at that time. He contends that, by

including a Miller claim in his 2013 application, he was merely “putting down a marker”

within one year of the date Miller was decided to ensure that, should the Supreme Court

later make Miller retroactive (as it has now done), his later filed Miller claim would be

timely under § 2244(d)(1)(C) and thereby could be resurrected in a second or successive


                                             11
habeas application — even though his first habeas application was dismissed with

prejudice. “Otherwise,” he argues, “applicants like [him] would confront Scylla and

Charybdis” when filing a habeas application based on the Supreme Court’s recognition of

a new rule of constitutional law, suggesting that he was unacceptably given lose-lose

alternatives. *

       There are several problems with Phillips’s argument. First, the language of our

opinion in Vial, on which he relies, was addressing the limited issue — later conclusively

settled by the Supreme Court in Tyler v. Cain, 533 U.S. 656 (2001) — of how to

determine when a new rule of constitutional law has been “made retroactive to cases on

collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2) (emphasis added); see

also id. § 2244(b)(2)(A) (same). At issue, specifically, was whether the Supreme Court

must “declare[] the collateral availability of the rule in question” or whether “Supreme

Court precedent [can] establish[] that the new rule is of the type available to those

proceeding on collateral review.” Vial, 115 F.3d at 1196–97. We concluded that “the

plain language” of the statute established that, “in order to be available to an individual

pursuing a second or successive § 2255 motion, a new rule of constitutional law must

itself be declared applicable to cases on collateral review by the Supreme Court.” Id. at



       *
        As described in Homer’s Odyssey, Book XII, Odysseus, on returning from Troy
by ship, was confronted with a narrow strait, which was impossible to navigate without
harm. On one side Scylla, a six-headed sea monster, would snatch six sailors from the
ship, one for each head, and on the other side, Charybdis, a whirlpool, would suck the
ship into its water funnel and destroy it. There was no safe lane between the two.
Odysseus engaged Scylla and thus lost six sailors.



                                            12
1196. Thus, our opinion in Vial did not purport to answer any question as to when a

claim based on a new rule of constitutional law is “presented” in a habeas application

within the meaning of § 2244(b)(1). And any statement in Vial suggesting that a claim

based on a new rule of constitutional law does not become legally available until the new

rule has been made retroactive to cases on collateral review was dictum at best. More

importantly, even such dictum has been undermined by the Supreme Court’s subsequent

decision in Dodd v. United States, 545 U.S. 353 (2005).

       In Dodd, the Court addressed the question of when the 1-year limitation period

that applies to a prisoner’s federal postconviction proceeding begins to run, particularly

when the prisoner’s claim is based on the Supreme Court’s new recognition of a federal

right. Specifically, with respect to a federal prisoner’s collateral challenge to the final

judgment in his criminal case, 28 U.S.C. § 2255(f) provides that “[t]he limitation period

shall run from the latest of” several events, including “the date on which the right

asserted was initially recognized by the Supreme Court, if that right has been newly

recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” 28 U.S.C. § 2255(f)(3); cf. id. § 2244(d)(1)(C) (using nearly identical language

to provide that the 1-year limitation period that applies to a state prisoner’s habeas

application begins to “run from the latest of” various possible dates, one of which is “the

date on which the constitutional right asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review”).




                                             13
       The Dodd Court rejected the federal prisoner’s argument that, under § 2255(f)(3),

“the limitation period runs from the date on which the right asserted was made

retroactively applicable.” 546 U.S. at 357 (emphasis added). Instead, it held that the

statute’s text “unequivocally identifies one, and only one, date from which the 1-year

limitation period is measured:     ‘the date on which the right asserted was initially

recognized by the Supreme Court.’” Id. (quoting § 2255(f)(3)). Thus, giving the statue’s

text its “only natural reading,” the Court concluded that when it “decides a case

recognizing a new right, a federal prisoner seeking to assert that right will have one year

from [its] decision within which to file his § 2255 motion,” although he “may take

advantage of [that] date . . . only if” “the right ‘has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.’” Id. at

358–59 (quoting § 2255(f)(3)).

       Critically, the Dodd Court expressly recognized and rejected the Scylla-and-

Charybdis problem identified by Phillips, acknowledging that by giving the statutory text

its plain meaning, there was a “potential for harsh results in some cases,” particularly

with respect to federal prisoners who have previously filed a § 2255 motion. 545 U.S. at

359.   Indeed, the Court explicitly noted that, “because of the interplay between”

§ 2255(f)(3) and (h)(2), “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.” Id. (emphasis added). But this “potential for harsh results,”




                                            14
the Court concluded, did not give it license “to rewrite the statute that Congress has

enacted.” Id.

      We conclude that Dodd’s reasoning is controlling here. Distilled to its essence,

Phillips’s argument is that, based on the operation of the statute of limitations in

§ 2244(d)(1)(C), we should ignore the plain text of § 2244(b)(1) and hold that although

he raised a claim based on Miller in his 2013 habeas application, the claim was

nonetheless not “presented” then because Miller’s new rule had not yet been made

retroactively applicable to cases on collateral review. But, as Dodd so clearly instructs,

“we are not free to rewrite the statute that Congress has enacted” to avoid what would

admittedly be “harsh results in some cases.” 545 U.S. at 359. Phillips fully presented his

Miller claim in 2013 and now proposes to file a second or successive application to

present the same claim. Subsections 2244(b)(1) and 2244(b)(3)(C) forbid this.

      Because Phillips has failed to make the necessary prima facie showing that his

successive habeas application would present a claim that was not “presented” in his first,

his motion for leave to file a successive application must be denied. We therefore need

not address the separate issues of whether he made a prima facie showing that his

proposed claim “relies on a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,” 28 U.S.C.

§ 2244(b)(2)(A), or whether his motion should otherwise be denied because his

successive application would be untimely under § 2244(d), see Vassell, 751 F.3d at 268–

72.

                                                                      MOTION DENIED


                                           15
