                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-6682


JASON CLEM,

                Petitioner – Appellant,

           v.

LESLIE FLEMING, Warden, Keen Mountain Correctional Center,

                Respondent – Appellee.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:13-cv-00319-SGW-RSB)


Argued:   September 20, 2016                 Decided:   October 19, 2016


Before TRAXLER and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.           Senior
Judge Davis wrote a separate concurring opinion.


ARGUED: Amy Lynn DeLine, SIDLEY AUSTIN LLP, Washington, D.C.,
for Appellant. Robert H. Anderson, III, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.        ON
BRIEF: Guy S. Neal, Matthew J. Warren, SIDLEY AUSTIN LLP,
Washington, D.C., for Appellant.     Mark R. Herring, Attorney
General of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Petitioner         Jason     Clem      appeals     the     district      court’s

dismissal    of     his    authorized      successive     habeas     petition       under

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

without parole.       He argues that the Virginia statute under which

he was sentenced is unconstitutional because it mandates life

imprisonment without parole for a juvenile convicted of capital

murder in violation of Miller v. Alabama, 132 S. Ct. 2455, 2469

(2012).     We vacate the order of the district court and remand

with   instructions        to     hold   in    abeyance    for    the     reasons    that

follow and as provided herein.



                                              I.

                                              A.

       On   March    8,     2004,    16-year-old        Clem     packed    a   knapsack

containing knives and a hammer and set off to the restaurant

where he worked.            Upon arrival, Clem hit his employer Robert

Lacy, Jr., on the head with the hammer and proceeded to stab him

several times.        Clem fled after taking money from the register

and the surveillance tape.                 Lacy died as a result of Clem’s

attack.

                                              B.

       Following     his    indictment        for   capital     murder,     Clem    stood

trial in the Rockingham County Circuit Court in Virginia.                             On

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May 12, 2005, a jury found him guilty of capital murder.                       At the

time of his conviction, Virginia law provided that the penalty

for capital murder was “death, if the person so convicted was

18 years of age or older at the time of the offense . . . , or

imprisonment     for    life   and    . . .     a    fine     of    not     more   than

$100,000.”     Va. Code § 18.2-10(a) (2005).                The Virginia circuit

judge instructed the jury it could impose a sentence of life, or

life with a fine of up to $100,000.                    The jury returned the

maximum sentence for a juvenile convicted of capital murder--

life imprisonment and a fine of $100,000.                     The circuit judge

granted Clem’s motion for a presentence report and sentencing

hearing,      which    included      evidence       about     Clem’s      tumultuous

upbringing and history of mental illness.

       At Clem’s sentencing, the circuit judge noted that he had

“read the presentence report . . . and also considered all of

the evidence in the nature of aggravation or mitigation in the

case” but found “no reason to deviate from the jury verdict.”

J.A.   392.      The    circuit   judge     adopted         the    jury’s    verdict,

sentencing Clem to life imprisonment without parole and a fine

of $100,000.      Clem appealed his conviction through the Virginia

courts, and the Supreme Court of Virginia denied his petition

for direct appeal on September 21, 2006.                     Clem then filed an

unsuccessful state habeas petition in 2007 arguing, inter alia,

that sentencing a juvenile to life imprisonment without parole

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was cruel and unusual punishment.                         Both the Rockingham County

Circuit Court and the Supreme Court of Virginia dismissed Clem’s

petitions with regard to this claim, finding he was procedurally

barred    because      he     had      failed    to       raise    the    claim    on    direct

appeal.        In   2009,     the      United       States      District       Court    for    the

Western    District         of    Virginia       rejected         Clem’s       first     federal

habeas    petition      pursuant         to     28    U.S.C.      § 2254,       which        raised

essentially the same claims as his state habeas petition.



                                               II.

     Roughly        seven        years   after        Clem’s      conviction,          the    U.S.

Supreme     Court      held       that    the        Eighth     Amendment        prohibits       a

mandatory life sentence without parole when the convicted person

was a juvenile at the time of the offense.                              Miller, 132 S. Ct.

at 2469.       Miller requires that “a judge or jury . . . have the

opportunity to consider mitigating circumstances,” including “an

offender’s          youth        and     attendant            characteristics”            before

sentencing a juvenile to life imprisonment without parole.                                     Id.

at 2475, 2471. Clem filed this authorized successive federal

habeas petition to seek relief under Miller.

     Respondent moved the district court to dismiss on three

alternate      grounds:       (1)      Miller       was   not     retroactive;         (2)    Clem

failed    to    exhaust       his      state    remedies;         and    (3)    the    Virginia

circuit court judge had comported with Miller’s requirements at

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Clem’s     sentencing.            The     district         court        assumed,       without

deciding,       that     Miller     retroactively            applied          to   cases     on

collateral       review     and     found          that    Clem        was    excused      from

exhausting state remedies because there was no state corrective

process available to him.               However, the district court concluded

that     the    Virginia        circuit       judge       had     in     fact      considered

mitigating circumstances consistent with Miller’s requirements

and dismissed Clem’s petition.                 This appeal followed.



                                              III.

       During the pendency of Clem’s instant appeal from federal

district       court,     the     U.S.    Supreme          Court       held     that    Miller

announced a substantive rule and, therefore, was retroactive.

Montgomery      v.     Louisiana,       136    S.    Ct.    718,       736    (2016).       The

parties renew the remaining claims on appeal.                                 We review the

district court’s dismissal of a habeas petition de novo.                                Gordon

v. Braxton, 780 F.3d 196, 200 (4th Cir. 2015).

                                               A.

       Clem argues that Virginia’s capital murder statute violates

Miller because the only sentencing option available to the judge

was life imprisonment without parole.                           Respondent argues that

Virginia’s capital murder sentencing statute is not mandatory

but part of a larger statutory scheme that affords a trial judge

discretion to “suspend imposition of [a] sentence or suspend the

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sentence      in     whole     or    part.”            Va.    Code    § 19.2-303     (2005).

However,          before     reviewing       the        merits,      we   first     consider

Respondent’s threshold argument that Clem must exhaust his state

remedies.

                                                 B.

       It    is    undisputed       that    Clem       has    not    exhausted    his    state

remedies, as he has not raised his Miller claim in state court.

Although generally a state prisoner must exhaust available state

court remedies before filing a federal habeas petition, there is

an exception when exhaustion would be futile because the state

provides no remedy.                Ham v. North Carolina, 471 F.2d 406, 407

(4th    Cir.        1973).         Virginia          imposes    a    strict      statute     of

limitations for habeas petitions.                       A habeas petition challenging

a   criminal        sentence        must    be        filed    “within    one     year     from

. . . final disposition of the direct appeal in state court.”

Va. Code § 8.01-654(A)(2).                 Accordingly, Clem would have had to

file    a    petition        seeking       any       state    post-conviction       remedies

before September 21, 2007.                   The Supreme Court of Virginia has

noted that the statute of limitations “contains no exception

allowing a petition to be filed after the expiration of these

limitations periods.”               Hines v. Kuplinski, 591 S.E.2d 692, 693

(Va. 2004).          The district court assumed without deciding that

Clem would be excused from exhausting his state remedies because

there       was     no     state    corrective          process      available     to      him.

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However, after the district court dismissed Clem’s petition, the

Supreme     Court    of    Virginia            reviewed    a     challenge    to        the   same

sentencing       statute       at        issue    here     several        years     after      the

petitioner       would    have      been        time-barred       from     filing       a    habeas

petition.        See Jones v. Commonwealth, 763 S.E.2d 823 (Va. 2014),

vacated, 136 S. Ct. 1358 (2016).

      In Jones, the petitioner, relying on Miller, filed a motion

to vacate his life without parole sentence twelve years after

pleading     guilty       to   capital           murder    and     other    charges.           Id.

at 824.      Though the Supreme Court of Virginia assumed without

deciding that Miller was retroactive, the U.S. Supreme Court

vacated      Jones,        remanding             to      that     court      “for           further

consideration       in    light          of    Montgomery.”         Jones     v.     Virginia,

136 S. Ct. 1358 (2016).                   The Supreme Court of Virginia reheard

Jones one week before oral argument in this case.

      Although       failure         to        exhaust     state     remedies       does       not

automatically       “deprive         an       appellate    court     of    jurisdiction          to

consider     the    merits          of     a     habeas    corpus”        petition,         comity

dictates     a     “strong      presumption           in    favor     of     requiring         the

prisoner to pursue his available state remedies.”                                 Granberry v.

Greer, 481 U.S. 129, 131 (1987).                      Moreover, we generally resolve

doubts as to whether an issue has been presented to a state

court against exhaustion.                  Durkin v. Davis, 538 F.2d 1037, 1041–

42   (4th   Cir.     1976).              Particularly       here,    where        the       state’s

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highest court may soon issue a decision that could affect, if

not   resolve,       the    issue   of    exhaustion,         the    prudent   course    of

action    is    to    stay     this   case       pending      resolution       of   Jones. ∗

Accordingly,     we        vacate   the   order     of     the      district   court    and

remand    the    case       with    instructions         to    hold    this    action    in

abeyance pending the Supreme Court of Virginia’s disposition of

Jones.    Depending on the outcome in Jones, we leave it to the

district court to decide, in the first instance, whether Clem

has an available state remedy that he must first exhaust.




      ∗Respondent maintains that there is another reason why Clem
has not exhausted his state remedies. In Mueller v. Murray the
Supreme Court of Virginia considered a death row prisoner’s
argument that a new U.S. Supreme Court decision, Simmons v.
South Carolina, 512 U.S. 154 (1994), should apply retroactively
to his case. The Supreme Court of Virginia ultimately rejected
this claim because it found that Simmons did “not fall within
either Teague [v. Lane] exception.”     478 S.E.2d 542, 549 (Va.
1996).    Here, however, the U.S. Supreme Court has held that
“Miller announced a substantive rule of constitutional law,”
Montgomery, 136 S. Ct. at 735, and therefore this case fits
within an exception to non-retroactivity under Teague v. Lane,
489 U.S. 288, 311 (1989).      By implication, Respondent argues
that because the Supreme Court of Virginia suggested it would
consider Teague exceptions to be retroactively applicable for
state habeas petitions, Clem could file his petition in state
court.    However, because Mueller was decided before Virginia
enacted its habeas statute of limitations and has never been
cited in a published decision by a Virginia court for the
proposition that a new constitutional rule could overcome the
procedural bar of Va. Code § 8.01-654(A), we decline to rely on
this line of reasoning today.


                                             8
                           IV.

    For the foregoing reasons, the judgment of the district

court is

                                       VACATED AND REMANDED.




                            9
DAVIS, Senior Circuit Judge, concurring:

       I join the per curiam opinion of the Court.                     This appeal,

and the exhaustion issue it presents, comes to us in a rather

convoluted posture: namely, after an opaque remand, a classic

“GVR” (petition “granted, vacated and remanded”) by the Supreme

Court of the United States, of Jones v. Commonwealth, 763 S.E.2d

823 (Va. 2014), vacated, 136 S. Ct. 1358 (2016).                      In that case,

the    Supreme     Court       of      Virginia         held,     unanimously         and

unambiguously, that “a Class 1 felony [including, as in Jones, a

life   sentence    imposed      upon    one   who       was   a   juvenile     when   he

committed capital murder] does not impose a mandatory minimum

sentence under Virginia law.”             Id. at 826.             As the per curiam

opinion observes, the Supreme Court of Virginia reached that

holding even as it assumed the retroactivity of Miller.                         One is

left puzzling, therefore, over exactly what the Supreme Court of

the United States imagined might change in the reasoning of the

Supreme Court of Virginia simply by virtue of the fact that the

former’s       holding     in       Montgomery           merely      elevated         the

Commonwealth’s “assumption” regarding retroactivity to a binding

rule of federal constitutional law.

       It seems to me, in any event, that the issue of whether or

not,   under    Miller   and     Montgomery,        a    state     statutory    scheme

mandates (within the contemplation of the Eighth Amendment) a

life sentence upon conviction is an issue of federal law, and

                                         10
not, as might appear on first glance, solely an issue of state

law. *       Time will tell.




         *
       We intimated as much in Johnson v. Ponton, 780 F.3d 219,
222 n.2 (4th Cir. 2015), abrogated by Montgomery v. Louisiana,
136 S. Ct. 718 (2016), and vacated, Johnson v. Manis, 136 S. Ct.
2443 (2016) (mem.).


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