                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-7824


SHERMAINE ALI JOHNSON,

                Petitioner - Appellant,

           v.

HENRY PONTON,

                Respondent - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:13-cv-00404-JRS)


Argued:   October 29, 2014                 Decided:   March 5, 2015


Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.


Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Chief Judge Traxler and Judge Wilkinson joined.


ARGUED: John Longstreth, K&L GATES LLP, Washington, D.C., for
Appellant.    Alice Theresa Armstrong, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.      ON
BRIEF: Charles R. Mills, Noam A. Kutler, Eric T. Mitzenmacher,
K&L GATES LLP, Washington, D.C., for Appellant.       Mark R.
Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellee.
DUNCAN, Circuit Judge:

     Petitioner-Appellant     Shermaine          Ali     Johnson      appeals    the

district   court’s    dismissal   of       his   habeas     petition     under    28

U.S.C. § 2254, challenging his sentence of life imprisonment

without parole.      He argues that the rule announced in Miller v.

Alabama, 132 S. Ct. 2455 (2012), is retroactively applicable to

him on collateral review.         Miller held that imposing mandatory

life imprisonment without the possibility of parole for juvenile

homicide   offenders--i.e.,   imposing           that    sentence     without    any

individualized    consideration     of      their       status   as    juveniles--

violates the Eighth Amendment.         For the reasons that follow, we

conclude that the Miller rule is not retroactively applicable to

cases on collateral review.       We therefore affirm. 1



                                    I.

     The facts pertinent to this appeal are as follows:

          Johnson was convicted of the capital murder and
     rape of Hope Hall in 1998. Johnson was sixteen at the

     1
       By order dated December 16, 2014, we placed this case in
abeyance pending the Supreme Court’s decision in Toca v.
Louisiana, No. 14-6381, cert. granted, 135 S. Ct. 781 (Dec. 12,
2014). The Court granted certiorari in that case to address, in
part, the question of Miller’s retroactivity.   See id. at 781.
On February 3, 2015, the Clerk of the Supreme Court entered an
order dismissing the writ of certiorari granted in Toca pursuant
to the parties’ stipulation to dismissal.      In light of the
Supreme Court’s dismissal of Toca, we entered an order lifting
the stay of this case on February 11, 2015.



                                       2
      time of the offense, but was sentenced by a jury to
      death.    [Prior to that conviction, Johnson had also
      been convicted of the rapes of two other women.]      In
      2001, the Supreme Court of Virginia partially granted
      Johnson a writ of habeas corpus based on his trial
      counsel’s   failure to    request  a   particular   jury
      instruction. On remand, a properly instructed, second
      jury also imposed a sentence of death. . . . [T]he
      Supreme    Court   of   Virginia   affirmed    Johnson’s
      sentence . . . .
           [In 2005, Johnson] sought review from the Supreme
      Court [of the United States], which remanded Johnson’s
      case in light of its decision in Roper v. Simmons, 543
      U.S. 551, 568 (2005) (“A majority of States have
      rejected the imposition of the death penalty on
      juvenile offenders under 18, and we now hold this is
      required by the Eighth Amendment.”).        Pursuant to
      Virginia Code sections 17.1-313(D)(2) and 53.1-151,
      the Supreme Court of Virginia commuted Johnson’s
      sentence to life without the possibility of parole.
      In commuting Johnson’s sentence, the Virginia Supreme
      Court did not hold or order a rehearing.

Johnson v. Ponton, No. 3:13-CV-404, 2013 WL 5663068, at *1 (E.D.

Va. Oct. 16, 2013) (footnote omitted).                  Johnson’s conviction and

sentence “became final on September 7, 2005, which was the last

date on which he could have sought direct review by the Supreme

Court.”    Id. at *3; see generally 28 U.S.C. § 2244(d)(1)(A).

      Roughly seven years later, in June 2012, the Supreme Court

decided Miller.        The Court held that a mandatory, life-without-

the-possibility-of-parole             sentence        imposed    on      a    homicide

offender who was a juvenile at the time of the offense violates

the   Eighth    Amendment.        The       concern     motivating     the     Court’s

decision    was    that        such     a       sentencing      scheme       precludes

consideration     of    “how    children        are    different”     from    adults.


                                            3
Miller, 132 S. Ct. at 2469.               The Court noted that “it is the odd

legal   rule        that    does    not   have    some    form     of   exception    for

children,” id. at 2470, and cited its decisions in Roper, 543

U.S. at 572–73, which categorically barred the death penalty for

juveniles, and Graham v. Florida, 560 U.S. 48, 82 (2010), which

categorically barred life-without-parole sentences for juvenile

nonhomicide offenders.              Unlike in Roper and Graham, however, the

Miller Court did “not categorically bar a penalty for a class of

offenders      or    type    of    crime.”       Miller,     132   S.   Ct.   at    2471.

Rather, the Court “mandate[d] only that a sentencer follow a

certain process--considering an offender’s youth and attendant

characteristics--before imposing a particular penalty.”                       Id.

      Just under one year later, in June 2013, Johnson sought

collateral review of his sentence by filing a petition pursuant

to 28 U.S.C. § 2254.               Johnson argued that his sentence violates

the   Eighth    Amendment          because   Miller      applies    retroactively      on

collateral review.              He requested that the district court vacate

his sentence and order a new sentence consistent with Miller.

The district court found that Johnson’s claim was justiciable

and properly exhausted, but untimely.                    The court explained that

“a petitioner has only one year from the time his state-court

conviction becomes final in which to apply for a writ of habeas

corpus,”    unless,        as    relevant    here,    “the    constitutional        right

asserted by the petitioner is ‘newly recognized by the Supreme

                                             4
Court and made retroactively applicable to cases on collateral

review.’”       Johnson, 2013 WL 5663068, at *2 (quoting 28 U.S.C.

§ 2244(d)(1)(C)).       The court found that the Supreme Court had

not made the Miller rule retroactive, and therefore dismissed

Johnson’s petition as untimely.             The court, however, granted a

certificate of appealability “as to the specific issue regarding

whether   the    new   constitutional       rule    announced      in    Miller   is

retroactively applicable to cases on collateral review.”                       J.A.

96.   This appeal followed.



                                      II.

      Before     turning   to   the   question       of     the    Miller     rule’s

retroactivity, we must first address a threshold jurisdictional

question.        Respondent-Appellee        Henry    Ponton       (the    “Warden”)

contends that Johnson’s claim is nonjusticiable as moot because,

under Virginia’s three-time offender law, even if we invalidate

his   sentence     under   Miller,    Johnson       would     still      be   parole

ineligible. 2     Johnson counters that constitutional challenges to


      2
       The Warden also argues that, under Jones v. Commonwealth,
No. 131385, 2014 WL 5490609 (Va. Oct. 31, 2014), Johnson’s
sentence was not mandatory and Miller is therefore inapplicable.
Jones held that life-without-parole sentencing schemes in
Virginia are not mandatory because Va. Code Ann. § 19.2-303
gives trial courts the authority to “suspend part or all of the
life sentence imposed for a Class 1 felony conviction.” Id. at
*1.   However, as will be discussed further below, Miller held
unconstitutional  life-without-parole  sentences   imposed  upon
(Continued)
                                      5
sentences currently being served are not moot, and we agree.

Justiciability is a question of law that we review de novo.                See

Green v. City of Raleigh, 523 F.3d 293, 298 (4th Cir. 2008).

That review, however, is largely circumscribed by Supreme Court

precedent.

     The Supreme Court held in Walker v. Wainwright, 390 U.S.

335 (1968) (per curiam), that a habeas petition is not moot

where,   if   successful,    the    petitioner    would    not   be   released

because he would be subject to another sentence.              See id. at 337

(“It is immaterial that another prison term might still await

[the petitioner] even if he should successfully establish the

unconstitutionality     of    his    present     imprisonment.”).         This

reasoning applies even where the same sentence might await a

successful    habeas   petitioner     due   to   other    convictions.     See

Mancusi v. Stubbs, 408 U.S. 204, 205–06 (1972).                  These cases

establish that a person “confined under a sentence from which he

has not been unconditionally released . . . can validly contest

[that sentence] in federal court.”           Adamson v. Lewis, 955 F.2d

614, 618 (9th Cir. 1992).          Applying this principle to the facts




juvenile   homicide  offenders   without   consideration of the
offenders’ youth. Because the commutation of Johnson’s sentence
from death to life imprisonment without parole did not involve
any   process   for  considering   his   youth,   Miller is not
inapplicable to Johnson on this ground.



                                      6
before us, we conclude that Johnson’s petition is justiciable

because he is currently serving the sentence he challenges.



                                III.

     Finding   Johnson’s   appeal       justiciable,   we   turn   to   the

question whether the rule announced in Miller is retroactively

applicable on collateral review.           Before addressing Johnson’s

arguments, we provide an overview of the circumstances under

which new rules of constitutional law apply retroactively.

                                    A.

     In general, “new constitutional rules of criminal procedure

will not be applicable to those cases which have become final

before the new rules are announced.” 3        Teague v. Lane, 489 U.S.


     3
       The Supreme Court has observed that “[a]pplication of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality
which is essential to the operation of our criminal justice
system. Without finality, the criminal law is deprived of much
of its deterrent effect.” Teague, 489 U.S. at 309. Conversely,
the Court has held that new rules must be applied to “cases
pending on direct review,” because failing to do so would
“violate[]   basic   norms   of   constitutional  adjudication.”
Griffith v. Kentucky, 479 U.S. 314, 322 (1987).       Therefore,
framing the retroactivity analysis is the tension between
applying a new rule to all defendants, whether they present
challenges on direct or collateral review, and preserving the
finality that stabilizes the criminal justice system.        The
Supreme Court resolves that tension by drawing the line between
cases challenging convictions or sentences that are not yet
final--which are thus brought as appeals as-of-right on direct
review, and those challenging convictions or sentences that have
already become final--which are thus brought collaterally
(Continued)
                                    7
288, 310 (1989).             However, a rule may apply retroactively on

collateral review if “the Supreme Court has itself held that the

rule is retroactive, or [if] ‘the Court’s holdings logically

permit no other conclusion than that the rule is retroactive.’”

San-Miguel v. Dove, 291 F.3d 257, 260 (4th Cir. 2002) (citation

omitted)    (quoting     Tyler     v.   Cain,        533   U.S.   656,    669    (2001)

(O’Connor, J., concurring)).                Where the Supreme Court has not

expressly made a rule retroactive through a holding, the Court’s

holdings logically prescribe the retroactivity of a rule where

the rule falls into one of the two exceptions identified in

Teague:     (1) “the rule is substantive” rather than procedural,

or (2) “the rule is a ‘watershed rul[e] of criminal procedure’

implicating      the    fundamental         fairness       and    accuracy      of   the

criminal proceeding.”            Whorton v. Bockting, 549 U.S. 406, 416

(2007) (alteration in original) (quoting Saffle v. Parks, 494

U.S. 484, 495 (1990)); see also Teague, 489 U.S. at 307.

     A    new    rule   is    substantive       if   it    “prohibit[s]    a    certain

category    of    punishment     for    a   class     of    defendants    because     of




through a more discretionary appeals process. Where courts have
discretion to decline to hear a challenge to a conviction or
sentence, finality concerns generally trump the considerations
that compel a different result on direct review.     We proceed
under the Supreme Court’s guidance that new rules generally do
not apply retroactively on collateral review and discuss the
exceptions to that principle below.



                                            8
their status or offense.”          Penry v. Lynaugh, 492 U.S. 302, 330

(1989), abrogated on other grounds by Atkins v. Virginia, 536

U.S. 304 (2002).      A watershed rule of criminal procedure is one

that “requires the observance of ‘those procedures that . . .

are implicit in the concept of ordered liberty.’”                    Teague, 489

U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 693

(1971)   (Harlan,     J.,   concurring       in    the        judgment)).         The

watershed-rule    exception    is    “extremely     narrow.”            Schriro    v.

Summerlin, 542 U.S. 348, 352 (2004).              Indeed, the Supreme Court

has never found a new procedural rule to be “watershed” despite

the fact that it has considered the question fourteen times.

See Jennifer H. Berman, Comment, Padilla v. Kentucky: Overcoming

Teague’s “Watershed” Exception to Non-Retroactivity, 15 U. Pa.

J. Const. L. 667, 685 (2012).             The Court’s statements that the

right to counsel in felony prosecutions, guaranteed by Gideon v.

Wainwright, might qualify as a watershed rule reveal how rare

watershed rules are.        See, e.g., Beard v. Banks, 542 U.S. 406,

417 (2004).

                                      B.

     With     these   exceptions     in    mind,    we    turn     to    Johnson’s

arguments     that    the     rule    announced          in     Miller      applies




                                      9
retroactively. 4         He    first      contends    that   the    Miller     rule     is

retroactively applicable because the Supreme Court made the rule

retroactive by applying it in Miller’s companion case, Jackson

v. Hobbs.       Alternatively, Johnson argues that the rule applies

retroactively      under       each       Teague    exception    because      it   is    a

substantive rule of criminal law or, alternatively, a watershed

rule of criminal procedure.                 We address Johnson’s two arguments

in turn.

                                             1.

       Johnson first argues that the Supreme Court’s application

of the Miller rule to Miller’s companion case, Jackson, shows

that “the Court already has decided that the new rule will apply

retroactively.”          Appellant’s Br. at 10.              The Warden responds

that an express holding that a rule is retroactive, rather than

mere       application    of        the    rule,    is   required       to    establish

retroactivity,      and       the    Court’s       application     of   the    rule     to

Jackson did not amount to an express holding.                      We agree with the

Warden.

       4
       A threshold question for retroactivity is whether the rule
in question constituted a “new rule” when announced.          See
Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013). Once it
is established that the rule in question is a “new rule,”
retroactivity analysis proceeds to the question whether the rule
is retroactively applicable on collateral review.     Because the
parties stipulate that Miller announced a new rule, we assume
without deciding that it did so, and proceed directly to the
retroactivity question.



                                             10
       We observed in San-Miguel v. Dove that the Supreme Court

does   not       establish       a      rule’s    retroactivity          except    through     a

holding to that effect.                  See 291 F.3d at 260.                We derived this

principle        from      Tyler     v.     Cain,       in      which    Justice      O’Connor,

concurring in the judgment, explained that, where a petitioner

relies      on    a   “single        case”       to    establish        retroactivity,       the

Supreme Court in that case must have “expressly . . . held the

new rule to be retroactive on collateral review and applied the

rule to that case.”              533 U.S. at 668 (O’Connor, J., concurring)

(emphasis         added).            Because          an     express        holding     as    to

retroactivity is required for a single Supreme Court case to

establish retroactivity, the Court’s mere application of a new

rule   to    a    case     on    collateral           review       is   insufficient.        And

because Miller’s holding concerned only the life-without-parole

sentencing process of juvenile homicide offenders, and not the

retroactivity of the rule it announced, the Court’s application

of that rule to Jackson did not render it retroactive.

       The Supreme Court has also demonstrated the principle that

mere application of a new rule to a case on collateral review is

itself insufficient to establish retroactivity.                               In Padilla v.

Kentucky, 559 U.S. 356 (2010), the Court announced a new rule--

that   counsel        is    ineffective          where       she    fails   to   “inform     her

client whether his plea carries a risk of deportation,” id. at

374--and     applied        it     to    the     case      at   bar,     which   presented     a

                                                 11
challenge    on   collateral     review,     see    id.   at    359–60.       Though

without a companion case, Padilla is analogous to Miller and

Jackson together in two ways.              First, Padilla announced a new

rule and applied that rule to a case on collateral review.                          And

second, its holding did not mention or concern retroactivity.

Three years later, the Supreme Court held that the Padilla rule

does not apply retroactively on collateral review.                      See Chaidez

v. United States, 133 S. Ct. 1103, 1113 (2013).                       Chaidez shows

that   the   mere     application    of    the     Padilla     rule    in   Padilla,

without a holding as to retroactivity, was not enough to require

application of that rule to other cases on collateral review.

Similarly, in light of that example, we conclude that the Miller

Court’s application of the rule in Jackson was not enough to

establish the rule’s retroactivity.

                                       2.

       Johnson next argues that we should find Miller retroactive

under both Teague exceptions.          He maintains that the Miller rule

is   substantive      because   it   held    unconstitutional           a   type    of

sentence     as   a   matter    of   substantive      Eighth     Amendment         law.

Alternatively, Johnson submits that Miller announced a watershed

rule of criminal procedure.               The Warden responds that Miller

announced a procedural rule because it did not categorically bar

a particular punishment for a class of offenders, and that the

rule is not watershed but rather an outgrowth of the Supreme

                                       12
Court’s prior precedents.            For the reasons that follow, we agree

with the Warden.

                                          a.

      The   Supreme        Court    was   clear        in    Miller    that    it     was

announcing a procedural, rather than a substantive, rule.                           As we

discussed above, a new rule of criminal law is substantive, and

therefore     qualifies      for    the   first       Teague     exception,      if    it

“prohibit[s] a certain category of punishment for a class of

defendants because of their status or offense.”                       Penry, 492 U.S.

at 330.     Miller expressly does not do so.                  The Court noted that

its   holding     does     “not    foreclose      a    sentencer’s       ability”      to

sentence a juvenile homicide offender to life without parole.

Miller, 132 S. Ct. at 2469.                Rather, it prohibits sentencers

imposing that sentence on such offenders from “proceed[ing] as

though they were not children,” id. at 2458 (emphasis added), by

requiring the sentencer to “take into account how children are

different,”     id.   at    2469.     Because         only   a   “certain     process--

considering an offender’s youth and attendant characteristics--

before imposing a particular penalty,” id. at 2471, is required

after   Miller,    and     because    life     without       parole    may    still    be

imposed on juveniles so long as that process is carried out,

Miller announced a procedural rule, and cannot qualify for the

Teague exception for substantive rules.



                                          13
                                               b.

      Nor    can      the    Miller         rule     qualify      for     Teague’s       second

exception.      As we noted above, the Supreme Court “has repeatedly

emphasized      the    rarity          of    new    bedrock      rules     of    procedure.”

United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001).

Against that background, the Miller rule is scarcely a strong

contender to be the first to qualify for this exception.                                     The

Supreme     Court     has     instructed           that    a    new     rule     of    criminal

procedure that “qualifies under [the second Teague] exception

must . . . ‘alter           our    understanding          of    the    bedrock    procedural

elements’ essential to the fairness of a proceeding.”                                 Sawyer v.

Smith, 497 U.S. 227, 242 (1990) (quoting Teague, 489 U.S. at

311).     The Miller rule does not alter our understanding of such

procedural elements essential to fair proceedings because, as

the     Court       noted         in        Miller,       its         decision        “flow[ed]

straightforwardly from [its] precedents.”                        Miller, 132 S. Ct. at

2471.       “[S]pecifically,            the    principle        of    Roper,     Graham,     and

. . .   individualized            sentencing        cases      that    youth     matters     for

purposes of meting out the law’s most serious punishments” gave

rise to the result in Miller.                  Id.     As such, the procedural rule

announced     in    Miller        is   not    watershed        and    therefore       does   not

qualify for retroactivity under Teague’s second exception, as we

have been given to understand it.



                                               14
                                     IV.

     We therefore hold that the Supreme Court has not held the

Miller   rule    retroactively     applicable,    and   that    the    Court’s

holdings   do    not   dictate    retroactivity   because      the    rule   is

neither substantive nor a watershed rule of criminal procedure.

In so deciding, we join the Eleventh Circuit.           We also note that

our holding is consistent with that of the only other circuit

court    panel    to   have   answered     the    question     of     Miller’s

retroactivity.     See Craig v. Cain, No. 12-30035, 2013 WL 69128

(5th Cir. Jan. 4, 2013) (per curiam) (unpublished).

     The Eleventh Circuit held in In re Morgan, 713 F.3d 1365

(11th Cir. 2013), that “the decision in Miller has not been made

retroactive on collateral review” because (1) “the Supreme Court

has not held that Miller is retroactive[],” id. at 1367, and (2)

“Miller changed the procedure by which a sentencer may impose a

sentence of life without parole on a minor,” but it did not

create a substantive rule prohibiting “a certain category of

punishment for a class of defendants because of their status or

offense,” id. at 1368 (emphasis added).             The court concluded

that, because the Miller rule is not retroactive, it could not

furnish a basis for granting an application for leave to file a

successive habeas motion.        See id. at 1367–68.

     Likewise, a panel of the Fifth Circuit, in its nonbinding

opinion, denied a motion to reconsider, under Miller, a previous

                                     15
denial of a request for a certificate of appealability, on the

ground      that   “Miller     does        not     satisfy       the     test    for

retroactivity.”      Craig,        2013   WL     69128,    at   *2. 5    The    panel

reasoned that Miller “does not categorically bar all sentences

of   life   imprisonment     for    juveniles,”      and    therefore     does   not

qualify for the first Teague exception, and it “is an outgrowth

of the Court’s prior decisions,” and as such, “does not qualify

as a ‘watershed rule[] of criminal procedure.’”                    Id.   (internal

quotation mark omitted). 6


      5
       The Fifth Circuit found, in another nonbinding opinion,
that a petitioner had made a prima facie showing that the Miller
rule is retroactive.   See In re Simpson, 555 F. App’x 369, 371
(5th Cir. 2014) (per curiam) (unpublished). On that basis, the
court granted the petitioner’s motion to file a successive
habeas petition under 28 U.S.C. § 2255(h).        In so doing,
however, the court stated that it was not “resolv[ing] the
ultimate issue of the retroactivity of Miller” and explained
that a “‘prima facie showing’ is ‘simply a sufficient showing of
possible merit to warrant a fuller exploration by the district
court.’” Id. (quoting Reyes-Requena v. United States, 243 F.3d
893, 899 (5th Cir. 2001)).
      6
       We note that the trend has differed among state supreme
courts. Johnson points to decisions of the high courts of eight
states that have held Miller retroactive. See People v. Davis,
6 N.E.3d 709 (Ill. 2014); State v. Ragland, 836 N.W.2d 107 (Iowa
2013); Diatchenko v. Dist. Attorney, 1 N.E.3d 270 (Mass. 2013);
Jones v. State, 122 So.3d 698 (Miss. 2013); State v. Mantich,
842 N.W.2d 716 (Neb. 2014); In re New Hampshire, 103 A.3d 227
(N.H. 2014); Ex parte Maxwell, 424 S.W.3d 66 (Tex. Crim. App.
2014); State v. Mares, 335 P.3d 487 (Wyo. 2014).    These courts
have reasoned that the Miller rule is substantive because,
though it requires a new process, the need for the process
arises from a “substantive change in the law that prohibits
mandatory life-without-parole sentencing.”   Ragland, 836 N.W.2d
at 115; see also Diatchenko, 1 N.E.3d at 281. However, although
(Continued)
                                          16
                                  V.

     For the foregoing reasons, the district court’s dismissal

of Johnson’s habeas petition is

                                                       AFFIRMED.




these state courts purport to reason through Teague, that case
binds only the federal courts.       The Supreme Court held in
Danforth v. Minnesota that Teague “does not in any way limit the
authority of a state court . . . to provide a remedy for a
violation that is deemed ‘nonretroactive’ under Teague.”     552
U.S. 264, 282 (2008).   As we, unlike state courts, are obliged
to take Miller’s express limitations to heart, we conclude that
Miller is not retroactively applicable on collateral review.



                                  17
