                                   UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-7372


XAVIER JAMMAL PINCKNEY,

                    Petitioner - Appellee,

             v.

HAROLD W. CLARKE, Director of the Virginia Department of Corrections,

                    Respondent – Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Arenda L. Wright Allen, District Judge. (2:15−cv−00276−AWA−RJK)


Argued: May 10, 2017                                             Decided: June 22, 2017


Before MOTZ, AGEE, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded with instructions by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Motz and Judge Agee joined.


ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant. Leslie Joy Suson, THOMPSON HINE
LLP, Atlanta, Georgia, for Appellee. ON BRIEF: Mark R. Herring, Attorney General of
Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia, for Appellant. Eric N. Heyer, Washington, D.C., J. A. Schneider, THOMPSON
HINE LLP, Atlanta, Georgia; Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                            2
DIAZ, Circuit Judge:

       The Director of the Virginia Department of Corrections appeals the district court’s

grant of Xavier Pinckney’s petition under 28 U.S.C. § 2254 for a writ of habeas corpus.

The district court granted the writ because it found that the state trial court’s application

of the governing legal principles in Miller v. Alabama, 132 S. Ct. 2455 (2012),

constituted an unreasonable application of clearly established federal law as determined

in Miller and then clarified by Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In

particular, the district court held that the state trial court failed to sufficiently consider

Pinckney’s status as a juvenile and its attendant characteristics before sentencing him to

life imprisonment without parole for murdering two people when he was 17. Because the

district court granted relief on an unexhausted claim but otherwise correctly rejected the

claim properly before it, we vacate the portion of the district court’s judgment granting

relief, affirm the portion denying relief, and remand with instructions to dismiss

Pinckney’s petition.

                                              I.

                                             A.

       On December 19, 2008, Connor Smith came home to find his older brother James

Smith dead on the sofa. Police officers subsequently found Jean Smith, Connor and

James’s mother, dead in the master bedroom. James and Jean each had gunshot wounds

to the head, James’s coming at close range. The investigation led to Pinckney, who

confessed to breaking into the home, shooting the Smiths, and stealing several items.




                                              3
       Following a bench trial, a judge of the Circuit Court of Prince William County,

Virginia, found Pinckney guilty of two counts of capital murder in violation of Virginia

Code sections 18.2-31(4) and 18.2-31(7), one count of robbery in violation of

section 18.2-58, and three counts of use of a firearm in the commission of those felonies

in violation of section 18.2-53.1. The trial court would later reconsider this ruling and

find Pinckney guilty of two more counts of capital murder in violation of sections 18.2-

31(4) and 18.2-31(8). The court ordered that a presentence report be prepared and set a

date for sentencing.

       Pinckney moved to continue his sentencing in order to gather and present

mitigation evidence prepared by Dr. Mills, a mental health expert who had evaluated him.

Pinckney argued under section 16.1-272 that the court had discretion to impose a

sentence less than life imprisonment and that the mitigation evidence would assist in that

determination. The Commonwealth opposed any continuance, contending that the court

was required to impose a sentence of life imprisonment without parole for the capital

murder convictions. The trial court granted the continuance without explicitly deciding

whether it had discretion to deviate from a sentence of life imprisonment without parole.

Characterizing the evaluation as “medical evidence,” the court said that “in fairness to

[Pinckney] and in fairness to the process, [Pinckney] should have the opportunity to

present whatever evidence he thinks is necessary.” J.A. 326–27.

       At Pinckney’s sentencing hearing, the trial court noted that it had received and

reviewed the presentence report and Dr. Mills’s psychological report. After hearing

victim impact testimony from Connor Smith and his father Richard Smith and hearing


                                            4
from Pinckney, the court explained its sentencing decision with respect to the capital

murder convictions:

              There’s nothing I can do to make it right. There’s nothing I can do
      that is the right thing to do in this case. This is a tragic case. It’s not an
      overstatement, I don’t think, to call it a tragic case.
              It’s not a mishap, Mr. Pinckney, it’s murder. You killed two people.
      And while I read all of the victim impact statements and considered them
      and considered the testimony here, I think nothing is really as compelling
      as the victim impact statement, reiterated to some extent by the testimony
      of Mr. Rick Smith, who talked about the real life effect of the loss of these
      people on the immediate family.
              The things we don’t think about, things like having to move out of
      the neighborhood, a ten year old making new friends, a child graduating
      from college without her mother there.
              And I looked at the presentence report and I tried to find some
      reason for this and you know there isn’t one because I look at your
      upbringing, I look at the way you were raised, and I think your mother did
      everything she could. You have siblings who have never been in trouble.
      You have a father who, while he wasn’t there all the time, certainly was
      there part of the time and wasn’t a malignant influence on you.
              You had had some experience in the juvenile court system. You had
      had, I don’t know if you would call it the benefit of probation, but you had
      certainly experienced probation, some mentors.
              And you killed these people to avoid a juvenile conviction for
      burglary, which might have meant 30 days in detention and maybe a
      suspended commitment. It is just almost incomprehensible and, as I
      mentioned, tragic.
              And I considered the presentence report and I considered the
      psychological evaluation and one of the reasons that I think this case is so
      awful is because anytime a life is taken it’s terrible. These were two
      extraordinary people you killed and when you killed them, you took their
      lives and you took your own future.
              And I think the appropriate sentence in this case on the capital
      murder charges is to sentence you to life without parole.

J.A. 356–58.

      In addition to the sentence of life imprisonment without parole, the trial court

sentenced Pinckney to an additional 18 years of imprisonment for the remaining felonies.



                                            5
The Court of Appeals of Virginia affirmed the trial court’s ruling and the Supreme Court

of Virginia refused Pinckney’s petition for appeal. The Supreme Court decided Miller

four days later, and then in September 2012, the Supreme Court of Virginia denied

Pinckney’s petition for rehearing. Pinckney then turned to state habeas corpus remedies.

                                            B.

       Pinckney filed a petition for a writ of habeas corpus in the Circuit Court of Prince

William County, Virginia. Contrary to his position at sentencing, Pinckney argued that

the trial court “was required under Virginia state law to sentence him to life in prison

without the possibility of parole.” J.A. 428. As such, the trial court could not “consider

any mitigating factors.” J.A. 428. Pinckney’s sole claim was that Miller rendered his

sentence of mandatory life imprisonment without parole unconstitutional and that he was

“entitled to a new sentencing hearing” which complied with Miller. J.A. 444. Pinckney

did not argue in the alternative that if the trial court did have discretion to impose a

sentence less than life imprisonment without parole, its consideration of the evidence was

still insufficient to satisfy Miller’s requirements. Instead, Pinckney devoted most of his

petition to arguing that Miller, decided over two years after his sentencing hearing, had

retroactive effect.

       In his motion to dismiss, the Warden of the Red Onion State Prison argued that the

trial court had discretion to impose a sentence less than life imprisonment without parole.

Moreover, the Warden concluded that the trial court complied with Miller by “impos[ing]

a sentence which took account of Pinckney’s age, the circumstances of the crime, his

criminal history, and his mitigating evidence.” J.A. 456. In his response, Pinckney


                                            6
continued to argue that the trial court was required to impose a sentence of life

imprisonment without parole and again failed to make any specific argument regarding

whether the trial court’s conduct nevertheless complied with Miller.

         The state habeas court—with the trial-court judge presiding—dismissed

Pinckney’s petition. The court recognized that Miller “announced a new rule of law

governing sentencing of juveniles convicted of capital murder,” but found that it did not

present any retroactivity issues as defined in Teague v. Lane, 489 U.S. 288 (1989),

because the Supreme Court decided Miller before Pinckney’s conviction became final for

purposes of Teague’s retroactivity analysis. J.A. 480. The court then surveyed Miller,

understanding it to require that a sentencing court “‘follow a certain process—

considering an offender’s youth and attendant characteristics—before imposing a

particular penalty,’ life without parole,” and that a sentencing court “take into account

how children are different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison.” J.A. 480 (quoting Miller, 132 S. Ct. at 2469,

2471).

         Turning to Virginia law, the court concluded that “[a] juvenile defendant in

Virginia is not subject to a sentence of ‘mandatory life without parole’ as was the case in

Miller.” J.A. 482. The court based that conclusion on two grounds. First, it found it

“clear that when [the Virginia] legislature intends to bar a court from suspending

execution of a sentence, it fixes a ‘mandatory minimum’ sentence in the statute.” J.A.

481. Because the sentence for capital murder “is ‘death’ or ‘imprisonment for life,’ or, if

the defendant was a juvenile at the time of the offense, ‘imprisonment for life,’” rather


                                            7
than a sentence that includes the words “mandatory minimum,” nothing precluded the

court from exercising its discretion to “suspen[d] . . . all or part of the life sentences.”

J.A. 481 (quoting Va. Code Ann. § 18.2-10(a)). Second, it found that Virginia law

provided “a circuit court sentencing a juvenile indicted as an adult” with “wide discretion

to impose a range of sentencing alternatives.” J.A. 481 (citing Va. Code Ann. § 16.1-272

(specifying sentencing options when a juvenile indicted as an adult is found guilty,

including that “the court shall fix the sentence without the intervention of a jury”); Va.

Code Ann. § 19.2-303 (authorizing a sentencing court to “suspend imposition of sentence

or suspend the sentence in whole or part” after conviction)). Accordingly, the habeas

court found that the trial court “had the statutory authority to suspend all or part of

Pinckney’s life sentence in light of mitigating evidence, including the defendant’s age.”

J.A. 482.

       Finally, the habeas judge examined her own conduct as the trial judge, noting that

she had “concluded, consistent with Pinckney’s argument [before the trial court] that

[she] had the authority ‘to fix a sentence short of life in prison.’” J.A. 482. As the trial

judge, she “review[ed] the presentence report and [took] account of all the mitigating

evidence Pinckney had marshaled.”        J.A. 482.   Then she “did exactly what Miller

requires: [she] imposed a sentence which took account of Pinckney’s age, the

circumstances of the crime, his criminal history, and his mitigating evidence.” J.A. 482.

“Having taken all those mitigating factors into account, [she] simply declined to exercise

[her] discretion to commute or suspend the sentence in light of all the evidence in

Pinckney’s case.” J.A. 482–83.


                                             8
      Pinckney petitioned the Supreme Court of Virginia for appeal. As before, his

petition focused on the trial court’s purported lack of discretion to impose a sentence

other than life imprisonment without parole and made no alternative argument as to the

trial court’s compliance with Miller or the sufficiency of its consideration of mitigating

evidence. After Pinckney submitted his petition, the Supreme Court of Virginia held that

section 19.2-303 granted trial courts the authority to “suspend part or all of the life

sentence imposed for a Class 1 felony conviction,” meaning that capital murder “does not

impose a mandatory minimum sentence” as described in Miller.                    Jones v.

Commonwealth, 763 S.E.2d 823, 824, 826 (Va. 2014) (analyzing Virginia law as it stood

in 2000), vacated on other grounds, 136 S. Ct. 1358 (2016) (remanding for further

consideration in light of Montgomery), and aff’d, 795 S.E.2d 705, 711 (Va. 2017)

(reaffirming previous holding that section 19.2-303 provides discretion to suspend part or

all of a life sentence imposed for a Class 1 felony conviction). In March 2015, the

Supreme Court of Virginia refused Pinckney’s petition for appeal. After exhausting his

state remedies, Pinckney turned to the federal habeas corpus process.

                                           C.

      In his memorandum in support of his § 2254 petition, Pinckney made the same

lone argument that he made before all the state courts—that the trial court had no

discretion to impose a sentence less than life imprisonment without parole and thus

necessarily “did not exercise any discretion to consider mitigating factors . . . because,

from the [trial court’s] view, it had no such discretion to exercise.” J.A. 564. The

magistrate judge recommended that Pinckney’s petition be denied. In particular, the


                                            9
magistrate judge found that “the decision of the [state] habeas court about the extent of a

Virginia court’s authority under Virginia law when sentencing a juvenile convicted of

capital murder constitutes a state court decision on a question of state law outside the

province of a federal habeas court.” J.A. 623. Furthermore, notwithstanding Pinckney’s

failure to “argu[e] about whether the factual record supports [the state habeas court’s]

conclusion” that the trial court complied with Miller’s requirement to take into account

his youth and attendant characteristics, the magistrate judge reviewed the trial court’s

conduct and concluded that the state habeas court “did not unreasonably apply this aspect

of Miller’s holding or base its decision upon an unreasonable determination of the facts.”

J.A. 629.

       Pinckney objected to three of the magistrate judge’s conclusions: (1) a federal

court must defer to a state habeas court’s conclusions and findings instead of conducting

de novo review; (2) the state habeas court correctly “concluded that the Virginia

sentencing statutes allowed the trial court discretion to impose a sentence less than life

without parole”; and (3) the state habeas court “reasonably determined that the trial court

understood, at the time of sentencing, that it possessed” discretion in sentencing

Pinckney. J.A. 633–34. Pinckney did not object to the magistrate judge’s conclusion

about the trial court’s compliance with Miller’s requirement to take into account his

youth and its attendant characteristics.

       The Supreme Court decided Montgomery on the same day that Pinckney filed his

objections. Afterwards, noting that Montgomery “expanded the holding of Miller,” the

district court ordered the parties to submit supplemental briefing on Montgomery’s


                                            10
“possible applicability” and “[t]he sufficiency of the trial court’s consideration of Mr.

Pinckney’s youth at sentencing, viewed in light of the Supreme Court’s decisions in”

Miller and Montgomery. J.A. 659. In his supplemental brief, Pinckney argued for the

first time that the trial court’s consideration of mitigation evidence was insufficient.

       The district court adopted in part and overruled in part the magistrate judge’s

report and recommendation and granted Pinckney’s petition. In particular, the court

overruled Pinckney’s first and third objections. It sustained, however, Pinckney’s second

objection by holding that “[i]n light of Montgomery’s clarification of the process required

by Miller before a juvenile homicide offender can be sentenced to life imprisonment

without parole, . . . the trial court in this case clearly failed to make the constitutionally

required individualized determination.” J.A. 712. The district court outlined the trial

court’s purported error as follows:

       First, the trial court gave no indication that it was guided by the
       fundamental principle “require[d] before sentencing a juvenile to life
       without parole,” specifically, “‘how children are different, and how those
       differences counsel against irrevocably sentencing them to a lifetime in
       prison.’” Montgomery, 136 S. Ct. at 733 (quoting Miller, 132 S. Ct. at
       2469). Second, the trial court failed to consider whether Mr. Pinckney’s
       crime reflected “‘irreparable corruption’” (thereby permitting application of
       a life sentence), as opposed to “‘unfortunate yet transient immaturity.’” Id.
       at 734 (quoting Miller, 132 S. Ct. at 2469).

J.A. 714 (alteration in original).

       The district court “remanded for resentencing in accordance with the principles

and standards enunciated in Miller.” J.A. 719. The Director secured a temporary stay of

the district court’s order, and this appeal followed.




                                             11
                                             II.

       We address in turn whether the district court chose a proper ground upon which to

base its grant of relief and whether any other part of Pinckney’s petition has merit. Our

review of the district court’s decision is de novo. Bennett v. Stirling, 842 F.3d 319, 322

(4th Cir. 2016). The way in which a federal habeas court must review the decision of a

state court is as follows:

              Under Section 2254(d), as amended by the Antiterrorism and
       Effective Death Penalty Act of 1996 (AEDPA), a federal court may not
       grant a state prisoner’s habeas petition unless the state court’s adjudication
       of the prisoner’s claim was legally or factually unreasonable. See 28
       U.S.C. § 2254(d); Pub. L. No. 104–132, § 104, 110 Stat. 1214, 1218–19
       (codified at 28 U.S.C. § 2254). More precisely, Section 2254(d)(1) allows
       relief if the state court’s decision “was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as determined
       by the Supreme Court.” § 2254(d)(1). . . . Section 2254(d)(2), in turn,
       permits relief where the state court’s decision “was based on an
       unreasonable determination of the facts in light of the evidence presented in
       the State court proceeding.” § 2254(d)(2). A state court’s factual
       determinations are presumed correct, and the petitioner must rebut this
       presumption by clear and convincing evidence. § 2254(e)(1).

Bennett, 842 F.3d at 322.

       In examining the state habeas proceedings, we, as the district court did, “look

through” the Supreme Court of Virginia’s summary refusal of Pinckney’s petition for

appeal and evaluate the circuit court’s habeas order, which is the last “reasoned decision”

from a state court. Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015).

                                             A.

       The Director says that Pinckney never presented to any Virginia court a claim

about the sufficiency of the trial court’s consideration of his age-related characteristics, a



                                             12
failure which should have precluded the district court from granting relief on such a

claim. We agree.

       “A habeas petitioner is generally barred from obtaining federal habeas review of a

claim if he failed to exhaust the claim in state court.” Morva v. Zook, 821 F.3d 517, 532

(4th Cir. 2016) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). “To satisfy his

burden, the petitioner must show that both the operative facts and the controlling legal

principles were presented to the state court.” Gordon v. Braxton, 780 F.3d 196, 201 (4th

Cir. 2015) (internal quotation marks and alteration omitted). For example, “it is not

enough to make a general appeal to a constitutional guarantee as broad as due process to

present the ‘substance’ of such a claim to a state court.” Gray v. Netherland, 518 U.S.

152, 163 (1996).

       Pinckney says that he presented a claim about the sufficiency of the trial court’s

consideration of his age-related characteristics to the state habeas court when he wrote in

his brief to that court that “Miller requires that a judge must consider mitigating qualities

of youth.” Appellee’s Br. at 13 (quoting J.A. 444). But placed in context, that clause is

the start of a sentence which continues: “and because the trial court had no such

discretion to consider such factors in sentencing Petitioner to life without parole in this

case, Mr. Pinckney is entitled to a new sentencing hearing and other such relief as would

be consistent with the Miller rule.” J.A. 444. And that sentence is the concluding

sentence in the argument section of Pinckney’s brief, which is otherwise devoted entirely

to explaining Miller and arguing that Miller had retroactive effect. Pinckney made no

argument in his brief as to whether, if the trial court did have discretion to impose a


                                             13
sentence less than life imprisonment without parole, its consideration of the evidence was

still insufficient to satisfy Miller’s requirements.

       Pinckney also contends that his fair presentment of a sufficiency claim is reflected

in a sentence from the Warden’s motion to dismiss which reads: “[The trial court]

imposed a sentence which took account of Pinckney’s age, the circumstances of the

crime, his criminal history, and his mitigating evidence.” Appellee’s Br. at 13 (quoting

J.A. 456). But once again, context is key. That statement comes in the last paragraph of

the Warden’s argument section, which is otherwise devoted exclusively to retroactivity

and whether the trial court had discretion to impose a sentence other than life

imprisonment without parole.

       Finally, Pinckney points to the state habeas court’s pronouncement that the trial

court “did exactly what Miller requires: it imposed a sentence which took account of

Pinckney’s age, the circumstances of the crime, his criminal history, and his mitigating

evidence.” Appellee’s Br. at 14 (quoting J.A. 482). But that statement came in the

context of explaining that the trial court had discretion to impose a sentence less than life

imprisonment without parole. It’s telling that even after the state habeas court made that

remark, Pinckney failed in his petition to the Supreme Court of Virginia to make an

argument about the sufficiency of the trial court’s consideration of his youth and

attendant characteristics.

       Putting all of this together, Pinckney exhausted his sufficiency claim only if: (1)

his citations to Miller and requests for a sentencing hearing consistent with Miller, and

(2) the Warden’s and the state habeas court’s passing references to the sufficiency of the


                                              14
trial court’s consideration of the evidence are enough for us to conclude that Pinckney

presented the operative facts and the controlling legal principles for the claim. In making

this determination we must keep in mind that Miller has two holdings: (1) “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without possibility

of parole for juvenile offenders,” and (2) a sentencing court must “take into account how

children are different, and how those differences counsel against irrevocably sentencing

them to a lifetime in prison.” Miller, 132 S. Ct. at 2469. Pinckney never presented an

argument as to the latter holding, and we reject his contention that he demonstrated

exhaustion by citing to a case that supports multiple claims and using conclusory,

sweeping language to describe the relief requested under that case.

       Although Pinckney does not cite the case, in Jones v. Sussex I State Prison, we

held that a pro se petitioner had fairly presented his double jeopardy claim to Virginia

state courts on direct appeal by citing to a Virginia case that dealt exclusively with

federal double jeopardy law. 591 F.3d 707, 713 (4th Cir. 2010). Other factors that

weighed in favor of finding exhaustion of the claim included petitioner’s presentation of

a fact pattern that Virginia courts had “regularly considered appropriate for double

jeopardy analysis,” petitioner’s “clear focus” on double jeopardy in the argument sections

of his briefs, and the state’s recognition of and opposition to the claim in its state-court

brief. Id. at 713–14. Finally, responding to the state’s “technical argument” that the

petitioner failed to include “double jeopardy language specifically in his assignments of

error on direct appeal,” we reasoned that “even assuming that a petitioner only exhausts

‘assigned’ errors, [petitioner’s] assignment of a sufficiency of evidence error fairly


                                            15
presented his double jeopardy claim” because Virginia “has regularly treated sufficiency

of the evidence and double jeopardy interchangeably in this context.” Id. at 714–15.

       Jones informs our analysis, but it’s too different to control it.      As in Jones,

Pinckney cited to the right case (Miller), but that’s where the similarities end. Pinckney

offered no sufficiency argument whatsoever in his briefs (and thus no fact pattern), the

Warden neither recognized nor opposed a sufficiency claim, and there’s no evidence that

the Virginia state courts conflate or treat interchangeably Miller’s two holdings. More on

point are cases where a petitioner initially proceeded on one theory and then attempted to

switch, even subtly, to a substantively different but related theory. Those cases are in

contrast to Jones, where the petitioner consistently advanced what was in substance a

double jeopardy claim.

       In Smith v. Quarterman, for example, the petitioner argued in his state habeas

petition “that trial counsel denied him effective assistance of counsel during the

punishment phase because they failed to adequately investigate his history, when such

historical information was essential in the preparation of a biopsychosocial assessment by

an expert in the area of mitigation.” 515 F.3d 392, 400 (5th Cir. 2008) (alteration

omitted). “The state habeas court specifically ruled on trial counsel’s decision not to

conduct a professional psychiatric evaluation and to elicit testimony from a mitigation

expert.” Id. at 401. Then, in his federal habeas petition, the petitioner argued “that trial

counsel should have investigated a possible temporary insanity defense, sought prison

records suggesting a nonviolent disposition during incarceration, and interviewed [his]

relatives with the intent that they testify in the punishment phase.” Id. The Fifth Circuit


                                            16
said that “[t]he two petitions assert[ed] similar arguments only to the extent that both

raise[d] an issue of ineffective assistance of counsel.” Id. Thus, the petitioner failed to

exhaust the claim in his federal petition because he “changed the focus of his federal

claim to substantive areas not previously raised in state court.” Id. at 402.

       And in Wooten v. Kirkland, the Ninth Circuit noted that it “has concluded that a

petitioner has ‘fairly presented’ a claim not named in a petition if it is ‘sufficiently

related’ to an exhausted claim.” 540 F.3d 1019, 1025 (9th Cir. 2008). In that circuit,

“[c]laims are ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by

raising one claim, the petition clearly implies another error,” but the “exception does not

apply when language in a petition for review indicates a petitioner’s ‘strategic choice’ not

to present an issue for review.” Id. Applying these principles, the court held that the

petitioner’s cumulative error claim was not exhausted because though the petitioner

“recited three out of the four alleged substantive errors in his brief to the California

Supreme Court,” he “specified that he included those errors in order to exhaust them for

the purpose of bringing a federal habeas petition.” Id. at 1026. That he did so while

“omitt[ing] the cumulative error claim confirms that the California Supreme Court had no

reason to conclude that [petitioner] also believed that there was cumulative error,” and

“suggest[ed] a strategic choice not to present” that claim. Id. at 1025–26.

       This case is closer to Smith and Wooten than Jones. Whether the trial court had

discretion at sentencing and whether it sufficiently considered Pinckney’s youth and

attendant characteristics are “similar arguments only to the extent that both” implicate

Miller. See Smith, 515 F.3d at 401. That Pinckney repeatedly declined opportunities to


                                             17
raise the sufficiency claim while consistently raising the claim about discretion “suggests

a strategic choice not to present” the sufficiency claim. Wooten, 540 F.3d at 1025.

Putting the isolated statements that Pinckney points to back in context, it becomes clear

that he “changed the focus of his federal claim to substantive areas not previously raised

in state court.” Smith, 515 F.3d at 402; see also Wagner v. Smith, 581 F.3d 410, 416 (6th

Cir. 2009) (refusing to read language from a brief “in a vacuum” in order to determine

whether petitioner exhausted claims, and instead insisting on placing it in proper context).

       In sum, Pinckney failed to place a Virginia court on notice of a Miller claim

regarding the sufficiency of the trial court’s consideration of his youth and its attendant

characteristics. As such, he failed to exhaust that claim in state court and the district

court erred by basing its grant of relief upon it. *

                                               B.

       Having established that the district court erred by granting habeas relief on an

unexhausted claim, the next question is whether any other part of Pinckney’s petition has

merit. The answer is no.

       Pinckney’s objection to the magistrate judge’s conclusion that a federal court must

defer to a state habeas court’s conclusions and findings instead of conducting de novo

review is baseless, and the district court correctly rejected it. Deference, as opposed to de


       *
         Because we resolve this issue on exhaustion grounds, we do not reach the
Director’s alternative argument that the district court erred by measuring the trial court’s
conduct against a Supreme Court case (Montgomery) which postdates the culmination of
Pinckney’s state habeas process.



                                               18
novo review, is precisely what § 2254(d) requires.         See Bennett, 842 F.3d at 322.

Relatedly, Pinckney says that the fact that the same judge presided over his trial and state

habeas proceedings somehow rendered the state habeas proceedings defective. Once

again, there is no merit to that argument. See Schriro v. Landrigan, 550 U.S. 465, 476

(2007) (noting that postconviction judge, who was also the sentencing judge, was “ideally

situated” to make findings concerning sentencing).

       That leaves Pinckney with his Miller claim that the trial court had no discretion to

impose a sentence less than life imprisonment without parole. That’s the one claim that

Pinckney exhausted, and the district court correctly rejected it.

       “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthout v.

Cooke, 562 U.S. 216, 219 (2011) (internal quotation marks omitted). Whether a state

sentencing statute is mandatory or instead allows for judicial discretion in setting the

punishment is a question of state law. Miller, 132 S. Ct. at 2462 n.2. Thus, the validity

of the state habeas court’s finding that the trial court had discretion at sentencing is

beside the point. A federal habeas court cannot hear Pinckney’s claim because it’s a

claim about an error of state law.

                                             III.

       For the reasons given, we vacate the portion of the district court’s judgment

granting relief, affirm the portion denying relief, and remand with instructions to dismiss

Pinckney’s petition.

                                               AFFIRMED IN PART, VACATED IN PART,
                                                AND REMANDED WITH INSTRUCTIONS



                                             19
