                                  PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                 No. 15-7151


DENNIS LEBLANC,

                  Petitioner - Appellee,

           v.

RANDALL MATHENA, Chief Warden, Red Onion              State   Prison,
Pound, Virginia; COMMONWEALTH OF VIRGINIA,

                  Respondents - Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.      Arenda L. Wright Allen,
District Judge. (2:12-cv-00340-AWA-LRL)


Argued:   May 10, 2016                         Decided:   November 7, 2016

                      Amended:    November 10, 2016


Before NIEMEYER and WYNN, Circuit Judges, and Thomas E.
JOHNSTON, United States District Judge for the Southern District
of West Virginia, sitting by designation.


Affirmed by published opinion. Judge Wynn wrote the opinion, in
which Judge Johnston joined. Judge Niemeyer wrote a dissenting
opinion.


ARGUED: Stuart Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellants.        Bryan A.
Stevenson, EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for
Appellee.   ON BRIEF: Mark R. Herring, Attorney General of
Virginia, Linda L. Bryant, Deputy Attorney General, Criminal
Justice & Public Safety Division, Donald E. Jeffrey, III, Senior
Assistant Attorney General, Eugene P. Murphy, Senior Assistant
Attorney General, Katherine Quinlan Adelfio, Assistant Attorney
General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE
ATTORNEY    GENERAL   OF   VIRGINIA,  Richmond,   Virginia,  for
Appellants.    Jennifer T. Stanton, J.T. STANTON, P.C., Norfolk,
Virginia; Randall S. Susskind, Jennae R. Swiergula, Stephen Chu,
EQUAL JUSTICE INITIATIVE, Montgomery, Alabama, for Appellee.




                               2
WYNN, Circuit Judge:

      Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the

Eighth Amendment forbids the sentence of life without parole”

for   juvenile        offenders      convicted       of    nonhomicide       offenses.

Accordingly, the Supreme Court held that States must provide

juvenile    nonhomicide       offenders       sentenced     to    life   imprisonment

with “some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.”                  Id. at 75.

      Nearly a decade before the Supreme Court decided Graham,

Respondent, the Commonwealth of Virginia, sentenced Petitioner

Dennis     LeBlanc     to    life     imprisonment        without    parole       for    a

nonhomicide offense he committed at the age of sixteen.                                 In

light of Graham, Petitioner sought postconviction relief from

his sentence in Virginia state courts.                    The state courts denied

Petitioner    relief,        holding    that      Virginia’s      geriatric    release

program--which was adopted more than fifteen years before the

Supreme Court decided Graham and will allow Petitioner to seek

release beginning at the age of sixty--provides the “meaningful

opportunity” for release that Graham requires.

      Mindful    of    the    deference      we    must   accord    to   state     court

decisions     denying       state    prisoners      postconviction         relief,      we

nonetheless conclude that Petitioner’s state court adjudication

constituted     an     unreasonable          application     of     Graham.         Most

significantly,        Virginia      courts    unreasonably       ignored    the    plain

                                             3
language of the procedures governing review of petitions for

geriatric release, which authorize the State Parole Board to

deny geriatric release for any reason, without considering a

juvenile offender’s maturity and rehabilitation.                         In light of

the lack of governing standards, it was objectively unreasonable

for the state courts to conclude that geriatric release affords

Petitioner with the “meaningful opportunity to obtain release

based        on   demonstrated      maturity      and     rehabilitation”          Graham

demands. Id. Accordingly, Petitioner is entitled to relief from

his unconstitutional sentence.

                                           I.

        On    July    15,   2002,    a   Virginia       state    trial   court     found

Petitioner guilty of rape and abduction.                        Petitioner committed

the offenses on July 6, 1999, when he was sixteen years old.

The     court        sentenced      Petitioner      to     two     terms      of     life

imprisonment.          Petitioner was ineligible for parole pursuant to

Va.     Code      Ann.      § 53.1-165.1,       which     abolished      parole       for

individuals convicted of a felony committed after January 1,

1995.    Petitioner did not appeal his conviction or sentence.

      In 2011, Petitioner filed a motion to vacate his sentence

in state trial court.            The motion argued that              Graham rendered

Petitioner’s life sentence invalid.                 In opposition, Respondents

asserted that, notwithstanding Virginia’s abolition of parole,

Petitioner’s         life    sentence     did    not     violate     Graham    because

                                            4
Virginia        allows          for     conditional             release       of     “geriatric

prisoners,” Va. Code Ann. § 53.1-40.01 (“Geriatric Release”).

     At    a    hearing         on    August    9,    2011,      the   state       trial     court

orally denied Petitioner’s motion to vacate.                              In rendering its

decision,       the    trial         court     relied      on    the    Supreme          Court    of

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

(Va. 2011), which held that Geriatric Release provides juveniles

sentenced       to    life      in     prison     a    “meaningful           opportunity         for

release”        and        therefore         complies           with      Graham’s          parole

requirement. J.A. 157.                  Petitioner appealed the trial court’s

decision       to    the    Supreme      Court        of   Virginia,         which       summarily

denied his petition for appeal.

     On June 19, 2012, Petitioner filed a petition for habeas

corpus     pursuant        to    28     U.S.C.       § 2254      in    the    United        States

District Court for the Eastern District of Virginia.                                     A federal

magistrate judge reviewed the petition and recommended that the

district court deny it.                  LeBlanc v. Mathena, No. 2:12-cv-340,

2013 WL 10799406, at *1 (E.D. Va. July 24, 2013).                                    Petitioner

filed objections to the magistrate judge’s report.                                  Finding the

objections well-taken, the district court granted Petitioner’s

habeas petition, holding that his state court adjudication was

contrary       to,    and       an     unreasonable         application            of,     Graham.

LeBlanc v. Mathena, No. 2:12cv340, 2015 WL 4042175, at *9 (E.D.

Va. July 1, 2015).              In particular, the district court concluded

                                                 5
that     Geriatric     Release     does       not    offer       juvenile    offenders

sentenced to life imprisonment, like Petitioner, the “meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation” required by Graham.                   Id. at *9, *11–18.            The

district court further concluded that Geriatric Release did not

comply with Graham’s dictate that state penal systems reflect

the lesser culpability of juvenile offenders, explaining that

Geriatric Release “treats children worse” than adult offenders.

Id. at *14 (emphasis in original). Accordingly, the district

court     remanded     Petitioner’s       case       to    the    state     court   for

resentencing in accordance with Graham.                   Id. at *19.

        Respondents filed a timely appeal, and the district court

stayed its judgment pending resolution of that appeal.

                                          II.

                                          A.

        The Virginia General Assembly established Geriatric Release

in 1994--more than 15 years before the Supreme Court decided

Graham--as     part    of   its    “truth-in-sentencing”            reform    package.

J.A. 169.      The primary goal of truth-in-sentencing reform was to

close    the   gap    between     prisoners’        original     sentences    and   the

amount of time they actually served.                      Brian J. Ostrom et al.,

Truth-in-Sentencing in Virginia 17-20 (April 5, 2001), available

at   https://www.ncjrs.gov/pdffiles1/nij/grants/187677.pdf.                         The

centerpiece of the reform package was the elimination of parole

                                          6
for all offenders who committed felonies on or after January 1,

1995.    Id.

     The    statutory     provision   governing   Geriatric    Release,   as

amended, 1 provides, in its entirety:

        Any   person  serving  a  sentence   imposed  upon  a
        conviction for a felony offense, other than a Class 1
        felony, (i) who has reached the age of sixty-five or
        older and who has served at least five years of the
        sentence imposed or (ii) who has reached the age of
        sixty or older and who has served at least ten years
        of the sentence imposed may petition the Parole Board
        for conditional release.     The Parole Board shall
        promulgate regulations to implement the provisions of
        this section.

Va. Code Ann. § 53.1-40.01.        Unlike with other components of the

truth-in-sentencing       reform   package, 2   we   have    identified   no

evidence in the contemporaneous legislative record speaking to

the General Assembly’s goal in enacting Geriatric Release or

providing      guidance   regarding   the   implementation    of   Geriatric

Release.




     1 The original provision applied only to offenders who were
ineligible for parole. A 2001 amendment expanded the provision
to apply to all inmates.
     2 The legislative history of the truth-in-sentencing reform
package focuses on the abolition of parole, establishment of
uniform sentencing guidelines and a sentencing commission,
elimination of “good time” credits, and imposition of longer
sentences for violent offenders. Commonwealth of Va. Comm’n on
Sentencing & Parole Reform, Report of the Commission on
Sentencing & Parole Reform to the Governor and General Assembly
of Virginia, H. Doc. No. 18 (Dec. 23, 1994).



                                      7
       The    Virginia       Parole     Board     is     responsible       for    deciding

whether to grant petitions for Geriatric Release.                          Section 53.1-

40.01     directs      the    Parole      Board        to     promulgate       regulations

necessary to implement the statute.                    Pursuant to that authority,

the Parole Board established administrative procedures governing

implementation         of     the     Geriatric          Release        provision      (the

“Geriatric Release Administrative Procedures”).

       The Geriatric Release Administrative Procedures set forth a

two-stage review process for Geriatric Release petitions.                                   At

the     “Initial      Review”       stage,       the     Parole        Board    reviews     a

prisoner’s petition--which must provide “compelling reasons for

conditional release”--and the prisoner’s “central file and any

other pertinent information.” J.A. 287.                         The Parole Board may

deny    the    petition      at   the    Initial        Review     stage       based   on    a

majority vote.         Neither the statute nor the Geriatric Release

Administrative        Procedures        states     what       constitute       “compelling

reasons       for   conditional       release,”         nor     does    either    document

require the Parole Board to consider any particular factors in

conducting      the    Initial      Review,      nor     does    either     document      set

forth any criteria for granting or denying a prisoner’s petition

at the Initial Review stage.

        If the Parole Board does not deny a petition at the Initial

Review    stage,      the    petition     moves        forward    to     the   “Assessment

Review” stage.        As part of the Assessment Review, a Parole Board

                                             8
member    or   designated       staff     member       interviews       the     prisoner.

During that interview, the prisoner may present written and oral

statements as well as any written material bearing on his case

for parole.      The interviewer then drafts a written assessment of

the prisoner’s “suitability for conditional release” and, based

on that assessment, recommends whether the Parole Board should

grant    the   petition.    J.A.       288.       In   order     to    grant    Geriatric

Release to a prisoner sentenced to life imprisonment, at least

four members of the five-member Parole Board must vote in favor

of release.

     In engaging in the Assessment Review, Parole Board members

should    consider     “[a]ll     factors         in   the     parole     consideration

process    including      Board    appointments          and     Victim    Input.”     Id.

The Virginia Parole Board Policy Manual includes a long list of

“decision      factors”    to     be    considered        in     the    parole      review

process. J.A. 297.          These factors include: public safety, the

facts and circumstances of the offense, the length and type of

sentence, and the proposed release plan.                     The Parole Board also

should    consider     certain         characteristics           of     the     offender,

including      “the    individual’s           history,       physical         and   mental

condition and character, . . . conduct, employment, education,

vocational training, and other developmental activities during

incarceration,”        prior       criminal            record,        behavior       while

incarcerated, and “changes in motivation and behavior.”                               J.A.

                                              9
297–99.     Finally, the Parole Board should consider impressions

gained from interviewing the prisoner as well as information

from family members, victims, and other individuals.

                                      B.

     There    are    several   key   ways   in   which   Geriatric    Release

differs from Virginia’s parole system, which remains in place

for prisoners who committed their offenses before January 1,

1995.     The first--and most obvious--is the age limitation.              In

order to seek Geriatric Release, an inmate must be at least

sixty years of age.       By contrast, most parole-eligible inmates

serving a life sentence will be considered for parole for the

first time after serving fifteen years of their sentence.                 Va.

Code Ann. § 53.1-151(C).       Other prisoners will be considered for

parole when they serve a certain percentage of their sentence.

Id. § 53.1-151(A).       Accordingly, whereas Petitioner would have

been considered for parole after serving twenty years of his

sentence, Petitioner cannot apply for Geriatric Release until

roughly twenty years later.

     The    second   difference      is   that   an   inmate   must   actively

petition for Geriatric Release once he or she becomes eligible,

whereas the Parole Board automatically considers, on an annual

basis, whether to release each parole-eligible inmate.

     A third difference is that, unlike with parole, the Parole

Board may deny a petition for Geriatric Release at the Initial

                                      10
Review stage without considering any of the “decision factors”

enumerated in the Parole Board Policy Manual.                                  Indeed, unlike

the    parole       system,       which     has      established        criteria       that    the

Parole       Board     must       consider      in      granting       or   denying       parole,

Geriatric         Release         affords       the      Parole      Board      unconstrained

discretion        to     deny     a    petition        for   Geriatric        Release     at   the

Initial Review stage.                  Relatedly, in their petition, prisoners

must       “identify       compelling       reasons”          why    they     should      receive

Geriatric Release, notwithstanding that the “compelling reasons”

requirement          has     no    statutory         basis     and     that    the     Geriatric

Release Administrative Procedures do not provide any guidance

regarding what constitutes a “compelling reason.” J.A. 287.                                    By

contrast, there is no requirement that a parole-eligible inmate

demonstrate “compelling reasons” in order to obtain parole.

       Fourth,         the      Parole    Board         or    its      designee      interviews

prisoners undergoing parole review as a matter of course.                                       By

contrast, the Parole Board can deny a petition for Geriatric

Release at the Initial Review stage “on a review of the record,”

without interviewing the inmate. J.A. 287.

       A    final      notable        difference       is    that    four     members     of   the

five-member          Parole       Board   must         approve      Geriatric     Release       of

inmates sentenced to life imprisonment.                          By contrast, only three

members      of    the       Parole     Board     must       approve    parole       of   parole-

eligible prisoners.

                                                  11
                                                 III.

       We     review         the     district           court’s     decision         to     grant

Petitioner’s habeas petition de novo.                             Richardson v. Branker,

668    F.3d       128,    138    (4th    Cir.      2012).         The    Antiterrorism           and

Effective Death Penalty Act of 1996 (“AEDPA”), which accords

deference to final judgments of state courts, circumscribes our

review.       Nicolas v. Att’y Gen. of Md., 820 F.3d 124, 129 (4th

Cir.    2016).           Under     AEDPA,    a     federal    court      may    grant      habeas

relief to a state prisoner, like Petitioner, if the prisoner’s

state       court      adjudication         “was       contrary    to,    or     involved        an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C.

§ 2254(d)(1), or “was based on an unreasonable determination of

the facts in light of the evidence presented in the state court

proceeding,” id. § 2254(d)(2).

       Respondents           contend     that      the   Virginia       courts’      conclusion

that Geriatric Release complies with Graham’s parole requirement

amounted to a finding of fact, and therefore that the standard

set forth in 28 U.S.C. § 2254(d)(2) applies.                                 Federal courts

review       habeas      petitions       raising         questions      of     law   or     mixed

questions         of   law    and    fact    under       Section    2254(d)(1).           Horn    v.

Quarterman, 508 F.3d 306, 312 (5th Cir. 2007); see also, e.g.,

Barnes       v.     Joyner,        751   F.3d       229,     246-52      (4th     Cir.      2014)

(analyzing habeas petition raising mixed question of law and

                                                  12
fact under Section 2254(d)(1)).                     By contrast, Section 2254(d)(2)

applies to questions of historical fact. Weaver v. Palmateer,

455 F.3d 958, 963 n.6 (9th Cir. 2006); Ouber v. Guarino, 293

F.3d    19,     27   (1st      Cir.    2002)     (“[T]he     special      prophylaxis      of

section       2254(d)(2)        applies    only      to    determinations        of    basic,

primary, or historical facts.” (internal quotation omitted)).

       Here, the Virginia courts’ evaluation of whether Geriatric

Release       complies        with    Graham’s      parole   requirement         implicates

questions       of     law,    and    therefore       is   subject   to    review      under

Section 2254(d)(1).              See, e.g., Moore v. Biter, 725 F.3d 1184,

1191 (9th Cir. 2013) (holding that a state court decision was

contrary to clearly established law when it held that Graham did

not bar a juvenile nonhomicide offender’s sentence under which

he would be eligible for parole in 127 years); Bunch v. Smith,

685 F.3d 546, 549-50 (6th Cir. 2012) (analyzing whether 89-year

sentence was functional equivalent of life sentence for purposes

of     Graham    under        Section     2254(d)(1)).            Therefore,      we    must

determine whether the state court’s decision was “contrary to,

or involved an unreasonable application of clearly established”

Supreme Court law.             28 U.S.C. § 2254(d)(1).

       In assessing a state prisoner’s habeas claims, we review

the “last reasoned” state court decision.                         Ylst v. Nunnemaker,

501    U.S.     797,    803     (1991);    Grueninger        v.   Dir.,    Va.    Dep’t    of

Corrs., 813 F.3d 517, 525 (4th Cir. 2016).                           “Unless a state-

                                               13
court opinion adopts or incorporates the reasoning of a prior

opinion, AEDPA generally requires federal courts to review one

state decision.”           Wooley v. Rednour, 702 F.3d 411, 421 (7th Cir.

2012) (internal quotation omitted).                          However, “[i]f the last

reasoned       decision         adopts     or    substantially        incorporates         the

reasoning from a previous state court decision, we may consider

both    decisions     to    fully        ascertain     the    reasoning      of     the   last

decision.” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir.

2007)    (internal        quotation        omitted);     Brian       R.    Means,    Federal

Habeas Manual § 3:7 (2016) (“[W]here the last reasoned state

court     decision         adopts        or     substantially         incorporates         the

reasoning from a previous decision, it is acceptable for the

federal court to look at both state court decisions to fully

ascertain the reasoning of the last decision.”).

       The Supreme Court of Virginia summarily affirmed the trial

court’s      oral     denial        of        Petitioner’s         motion     to     vacate.

Accordingly,        the    trial     court       decision      constitutes         the    last

reasoned decision for purposes of our analysis. Nicolas, 820

F.3d    at   129.         The    trial     court     relied     on   Angel’s       reasoning

regarding      the    Geriatric          Release      provision’s         compliance      with

Graham’s parole requirement.                  Accordingly, we must consider both

the    trial    court’s         decision      and    Angel    in   determining       whether

Petitioner’s state court adjudication was “contrary to, or an



                                                14
unreasonable application of” Graham--the question to which we

now turn.

                                             IV.

                                             A.

      The Eighth Amendment, made applicable to the States through

the Fourteenth Amendment, prohibits the infliction of “cruel and

unusual      punishments.”          U.S.      Const.      amend.      VIII;      Roper    v.

Simmons, 543 U.S. 551, 560 (2005).                        “To determine whether a

punishment      is   cruel    and      unusual,        courts      must    look       beyond

historical     conceptions        to   ‘the       evolving    standards        of     decency

that mark the progress of a maturing society.’”                                Graham, 560

U.S. at 58 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

The Eighth Amendment “prohibits not only barbaric punishments,

but   also     sentences     that      are    disproportionate            to    the    crime

committed.”     Solem v. Helm, 463 U.S. 277, 284 (1983).

      Graham    rests   on    a    long      line    of   Supreme     Court      decisions

addressing the constraints imposed by the Eighth Amendment on

the punishment of juvenile offenders.                     In Thompson v. Oklahoma,

487 U.S. 815, 838 (1988), the Supreme Court held that the Eighth

Amendment      prohibits     the       death        penalty     for    offenders         who

committed their crimes before the age of sixteen.                               The Court

grounded its decision on the principle “that punishment should

be directly related to the personal culpability of the criminal

defendant.” Id. at 834 (quoting California v. Brown, 479 U.S.

                                             15
538, 545 (1987)).            “[A]dolescents as a class are less mature and

responsible           than       adults,”            the         Court        explained.         Id.

“Inexperience, less education, and less intelligence make the

teenager less able to evaluate the consequences of his or her

conduct while at the same time he or she is much more apt to be

motivated by mere emotion or peer pressure than is an adult.”

Id. at 835.           Accordingly, a juvenile’s transgression is “not as

morally    reprehensible            as    that       of     an    adult.”          Id.     Because

juvenile    offenders         are    not       as    personally          culpable         as   adult

offenders, juvenile offenders should not receive punishments as

severe as those inflicted on adult offenders, the Court held.

Id. at 834.

       In Roper v. Simmons, the Supreme Court again emphasized the

unique characteristics of youth when it extended Thompson’s bar

on   the   death       penalty    to     all    individuals             who    committed       their

offenses before the age of eighteen. 543 U.S. at 578.                                            Like

Thompson,       the     Roper     Court        highlighted             juveniles’        “lack    of

maturity        and     underdeveloped              sense        of    responsibility”           and

propensity       for     “reckless        behavior.”             Id.     at    569       (citations

omitted).       Roper further noted that “the character of a juvenile

is   not   as    well     formed     as    that       of    an        adult”   and       juveniles’

“personality traits are more transitory, less fixed.” Id. at

570.    As a result, “it is less supportable to conclude that even

a    heinous     crime       committed         by     a     juvenile          is    evidence      of

                                                16
irretrievably             depraved      character.”          Id.          “Indeed,        ‘[t]he

relevance of youth as a mitigating factor derives from the fact

that     the     signature        qualities          of    youth    are        transient;      as

individuals mature, the impetuousness and recklessness that may

dominate in younger years can subside.’” Id. (quoting Johnson v.

Texas, 509 U.S. 350, 368 (1993)).

       Against this backdrop, Graham held that “for a juvenile

offender       who    did       not    commit    homicide         the     Eighth       Amendment

forbids the sentence of life without parole.” 560 U.S. at 74.

The    Court     explained       that    “[t]his          clear   line    is    necessary       to

prevent the possibility that life without parole sentences will

be     imposed       on    juvenile      nonhomicide          offenders         who    are    not

sufficiently culpable to merit that punishment.” Id. (emphasis

added).          In       reaching       this     conclusion,            the    Court        again

highlighted the “lessened culpability” of juveniles, noting that

“developments in psychology and brain science continue to show

fundamental differences between juvenile and adult minds.                                     For

example,       parts       of    the    brain        involved      in    behavior       control

continue       to     mature      through       late       adolescence.”         Id.    at    68.

Moreover,      “[j]uveniles            are   more     capable      of     change       than   are

adults, and their actions are less likely to be evidence of an

‘irretrievably            depraved      character’         than    are    the     actions      of

adults.” Id. (quoting Roper, 543 U.S. at 570).

       Graham explained that life without parole is “the second

                                                17
most severe penalty permitted by law,” behind only the death

penalty, because      it   “deprives     the       convict   of   the     most    basic

liberties without giving hope of restoration, except perhaps by

executive   clemency—-the      remote        possibility     of   which    does     not

mitigate the harshness of the sentence.” Id. at 69–70 (citations

omitted).   If a juvenile is sentenced to life in prison without

the   possibility     of   parole,      he    or     she   has    “no    chance    for

fulfillment outside prison walls, no chance for reconciliation

with society, no hope.” Id. at 79.

      Additionally,    “[b]y      denying      the    defendant     the    right    to

reenter the community, the State makes an irrevocable judgment

about that person’s value and place in society.                     This judgment

is not appropriate in light of a juvenile nonhomicide offender’s

capacity for change and limited moral culpability.” Id. at 74.

Accordingly, the sentence of life without parole for a juvenile

nonhomicide offender will always be “disproportionate” under the

Eighth Amendment because it always relies on a judgment “made at

the outset” that the defendant is incorrigible. Id. at 73.                          And

while some juvenile offenders may ultimately prove to pose a

risk to society for the rest of their lives, “[a] life without

parole sentence improperly denies the juvenile offender a chance

to demonstrate growth and maturity” later in life. Id. at 73

(emphasis added).

      Although   Graham    left    it   to     “the    State[s],    in     the    first

                                        18
instance, to explore the means and mechanisms” to comply with

its dictates, id. at 75, the decision established at least three

minimum requirements for parole or early release programs for

juvenile nonhomicide offenders sentenced to life imprisonment,

like Petitioner. 3

      First,   Graham    held   that    such          offenders   must   have   the

opportunity “to obtain release based on demonstrated maturity

and   rehabilitation.”      Id.   at        75        (emphasis   added).       Put

differently, the juvenile offender must have a “chance to later

demonstrate that he is fit to rejoin society” and that “the bad

acts he committed as a teenager are not representative of his

true character.”        Id. at 79.      To that end, a parole or early

release system does not comply with Graham if the system allows

for   the   lifetime     incarceration           of    a   juvenile   nonhomicide

offender based solely on the heinousness or depravity of the

offender’s crime. Id. at 75 (“[The Eighth Amendment] prohibit[s]

States from making the judgment at the outset that [juvenile

nonhomicide offenders] never will be fit to reenter society.”);

id. at 76 (stating that the Eighth Amendment prohibits courts



      3We address these three requirements because they are
particularly relevant to the Geriatric Release program and
Petitioner’s state court adjudication.    We take no position on
whether Graham established--clearly or otherwise--other minimum
requirements for parole or early release programs for juvenile
nonhomicide offenders sentenced to life imprisonment.



                                       19
“from sentencing a juvenile nonhomicide offender to life without

parole    based   on    a    subjective         judgment     that       the    defendant’s

crimes    demonstrate        an     ‘irretrievably           depraved          character’”

(quoting Roper, 543 U.S. at 572)).

      Second, Graham held that the opportunity to obtain release

must be “meaningful,” which means that the opportunity must be

“realistic” and more than a “remote possibility.” Id. at 70, 75,

82.       Graham’s     “meaningful[ness]”              requirement           reflects      the

Supreme Court’s long-standing characterization of “[p]arole [a]s

a regular part of the rehabilitative process.                              Assuming good

behavior, it is the normal expectation in the vast majority of

cases.”    Solem,    463     U.S.    at     300-03.         Because      parole       is   the

“normal    expectation,”       it    should       be     “possible      to    predict,      at

least    to   some     extent,      when    parole        might    be    granted.”         Id.

(holding that, for purposes of the Eighth Amendment, executive

clemency is not a substitute for parole because clemency is an

“ad hoc” process that provides inmates with nothing more than a

“bare possibility” of release).                  To that end, Graham held that

the   availability      of    executive          clemency    did     not      satisfy      the

“meaningful opportunity to obtain release” requirement. 560 U.S.

at 69-70.

      Third, Graham held that a state parole or early release

program    must   account     for     the       lesser    culpability         of     juvenile

offenders:     “An     offender’s         age     is     relevant       to     the    Eighth

                                            20
Amendment,     and   criminal   procedure         laws   that        fail   to   take

defendants’ youthfulness into account at all would be flawed.”

Id. at 76; see also Miller v. Alabama, 132 S. Ct. 2455, 2465-66

(2012)    (explaining    that   Graham’s    “foundational            principle”    is

“that imposition of a State’s most severe penalties on juvenile

offenders cannot proceed as though they were not children”). 4

Accordingly,     a   state   parole    or    early       release       system    that

subjects     juvenile   offenders     to   more    severe    punishments         than

their adult counterparts necessarily violates Graham.

                                      B.

      With   these   three   principles     in     mind--(1)         that   juvenile

nonhomicide offenders sentenced to life imprisonment must have

the   “opportunity      to   obtain    release      based       on     demonstrated

maturity and rehabilitation,” (2) that this opportunity must be

“meaningful,” and (3) that the early release or parole system

      4The Supreme Court decided Miller after Petitioner’s state-
court adjudication.   Although Petitioner may obtain relief only
based on law clearly established by the Supreme Court as of the
date of his adjudication, we may look to decisions post-dating
his adjudication for guidance regarding the interpretation and
application of clearly established Supreme Court precedent
predating the state court adjudication. See, e.g., Wiggins v.
Smith, 539 U.S. 510, 522-23 (2003) (relying on post-adjudication
opinion to “illustrat[e] . . . proper application” of clearly
established precedent); Frazer v. South Carolina, 430 F.3d 696,
716 (4th Cir. 2005) (Motz, J., concurring) (“Where . . . a
Supreme Court decision post-dating state collateral review . . .
simply illustrates the appropriate application of Supreme Court
precedent that pre-dates the state-court determination . . . , a
federal court on habeas may consider the postdated opinion.”).



                                      21
must       take   into    account      the     lesser    culpability     of       juvenile

offenders--we must determine whether the conclusion of the trial

court and Angel that Geriatric Release complies with Graham’s

parole       requirement         was   “contrary        to,    or   an   unreasonable

application of” Graham. 5

                                             1.

       A     state       court    adjudication          is    contrary       to    clearly

established       law     “if    the   state    court    arrives    at   a    conclusion

opposite to that reached by [the Supreme Court] on a question of

law” or “if the state court confronts facts that are materially

       5
       It is important to note that this case does not present
the question of whether a lengthy term-of-years sentence for a
juvenile is the functional equivalent of life without parole
under Graham.     That question has thus far divided courts.
Compare Bunch, 685 F.3d at 550 (holding that Graham did not
clearly establish that an lengthy term-of-years sentence for a
juvenile offender would violate the Eighth Amendment), Vasquez
v. Commonwealth, 781 S.E.2d 920, 925 (Va. 2016) (holding that
Graham did not address term-of-years sentences, even if they
exceed the prisoner’s life expectancy), and State v. Brown, 118
So. 3d 332, 342 (La. 2013) (concluding that Graham did not reach
term-of-years sentences), with Moore, 725 F.3d at 1186 (holding
that Graham clearly prohibited a sentence under which a juvenile
offender who would not be eligible for parole until age 144),
Casiano v. Comm’r of Corr., 115 A.3d 1031, (Conn. 2015) (holding
that “a fifty year term and its grim prospects for any future
outside of prison effectively provide a juvenile offender with
‘no chance for fulfillment outside prison walls, no chance for
reconciliation with society, no hope’” (quoting Graham, 560 U.S.
at 79)), Bear Cloud v. State, 334 P.3d 132, 136, 141–42 (Wyo.
2014) (holding that a sentence that would keep the defendant in
prison until age sixty-one was the functional equivalent of a
life sentence), and State v. Null, 836 N.W.2d 41, 72 (Iowa 2013)
(holding that “Miller's principles are fully applicable to a
lengthy term-of-years sentence”).



                                             22
indistinguishable from a relevant Supreme Court precedent and

arrives at [the opposite] result.”                     Williams v. Taylor, 529 U.S.

362, 405 (2000); Barbe v. McBride, 521 F.3d 443, 453-54 (4th

Cir. 2006).

        Here,     Angel,      upon     which    the    state    trial     court   entirely

relied,       correctly         identified          Graham     as     controlling        and

recognized        each    of    the    three    minimum       requirements       set   forth

above       for   a    parole     or    early       release    program     for    juvenile

nonhomicide           offenders       sentenced       to   life     imprisonment.         In

particular, Angel repeatedly stated that Graham requires that

juvenile offenders be afforded an opportunity for “release based

on maturity and rehabilitation.” 704 S.E.2d at 402.                               Likewise,

the Angel court acknowledged that the opportunity for release

must be “meaningful.” Id. 6                    And Angel recognized that Graham

demands that state penal systems account for the “limited moral

culpability of juvenile offenders.” Id. at 401.                             Accordingly,

Petitioner’s          state    court     adjudication         was   not   “contrary      to”

Graham. Bell v. Cone, 535 U.S. 685, 698 (2002) (holding that

        6
       Notwithstanding their contention that Graham “does not
address what type of parole is necessary to meet its standard,”
Respondents concede that Graham held that juvenile nonhomicide
offenders   sentenced  to  life   imprisonment    must  have the
opportunity   to   “obtain  release   based    on   maturity and
rehabilitation” and that this opportunity must be “meaningful.”
Appellants’ Br. at 37, 49.       Accordingly, even Respondents
concede that Graham establishes minimum requirements for parole
or early release programs.



                                               23
state     court     adjudication           that     “correctly       identified        the

principles announced [by the Supreme Court] as those governing

the   analysis      .    .    .   was     [not]    contrary    to    .     .    .   clearly

established law”).

                                             2.

      Petitioner, therefore, may obtain relief only if his state

court adjudication amounted to an “unreasonable application” of

Graham.     A     state      court   decision      amounts    to     an    “unreasonable

application” of clearly established Supreme Court precedent if

it “‘identifies the correct governing legal principle from [the

Supreme]    Court’s          decisions       but    unreasonably          applies      that

principle to the facts’ of the prisoner’s case.” Grueninger, 813

F.3d at 524 (quoting Wiggins, 539 U.S. at 520).                       To satisfy this

standard,     the       state     court    adjudication       must    be       “more   than

incorrect or erroneous;” it must be “objectively unreasonable.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). That being said, to

reach a decision that constitutes an “unreasonable application”

of Supreme Court precedent, a state court need not address an

identical factual or legal scenario to that previously addressed

by the Supreme Court: “even a general standard may be applied in

an unreasonable manner.”                Panetti v. Quarterman, 551 U.S. 930,

953 (2007).




                                             24
     For    several     reasons,    we    agree      with    Petitioner    that   his

state      court      adjudication        constituted          an     “unreasonable

application” of Graham.

     First,     Geriatric       Release       does   not     necessarily     provide

Petitioner--or      any    other    inmate,      juvenile      or    otherwise--the

opportunity to obtain release “based on demonstrated maturity

and rehabilitation,” as Graham requires.                      In concluding that

Geriatric Release satisfied this requirement, Angel emphasized

that “if the prisoner meets the qualifications for consideration

contained in the statute, the factors used in the normal parole

consideration      process      apply    to    conditional     release     decisions

under this statute.” 704 S.E.2d at 402.                     Assuming arguendo the

“decision     factors”     used    in    the    normal      parole   consideration

process adequately account for a juvenile offender’s “maturity

and rehabilitation,” 7 this conclusion ignores the Parole Board’s

authority to deny Geriatric Release for any reason--and without

consideration      of     the    “decision       factors”--and       therefore    is

objectively unreasonable.


     7 The dissent incorrectly asserts that we conclude that the
parole “decision factors” do not account for a juvenile
offender’s “maturity and rehabilitation.” Post at 19.     To the
contrary, because the Parole Board may deny a juvenile offender
Geriatric   Release  at   the   Initial  Review   stage  without
considering the “decision factors,” we need not--and thus do
not--decide whether the “decision factors” adequately account
for a juvenile offender’s “maturity and rehabilitation,” as
Graham requires.


                                          25
       Under the Geriatric Release Administrative Procedures, the

Parole Board must consider the “decision factors”--the “factors

used       in    the    normal    parole    consideration         process”--during           the

Assessment         Review      stage.      But      the   Parole      Board       may   deny   a

petition          for      Geriatric       Release        for     any      reason--without

consideration of the “decision factors”--at the Initial Review

stage.            It    was    objectively       unreasonable         to     conclude       that

Geriatric Release satisfied Graham’s requirement that juvenile

offenders         be    able     to   obtain   release      “based      on       maturity    and

rehabilitation,” when, under the plain and unambiguous language

of the governing procedures, the Parole Board can deny every

juvenile offender Geriatric Release for any reason whatsoever. 8

       Like Respondents, the dissent seeks to insulate Angel from

collateral review by claiming that “the Virginia Supreme Court’s

conclusion that Virginia law requires consideration of ‘normal

parole factors’ such as rehabilitation and maturity is one of

state law and thus is binding on this court.” Post at 19-20.

But,            contrary       to       Respondents’            and        the      dissent’s



       8
       Because the Geriatric Release Administrative Procedures do
not require consideration of maturity and rehabilitation--or any
other factors--we need not, and thus do not, decide whether a
statute or regulation requiring only that a state decision-maker
consider   “maturity   and  rehabilitation”  satisfies    Graham’s
requirement that juvenile offenders have the opportunity to
obtain    release    “based   on   demonstrated    maturity    and
rehabilitation.” 560 U.S. at 75 (emphasis added).



                                               26
characterization, Angel does not hold that the Geriatric Release

Administrative       Procedures       “require”        consideration          of     the

“decision factors.”        Rather, Angel states that the “decision

factors”   “apply    to   conditional        release     decisions,”      but      never

addresses whether--much less holds that--the Parole Board must

consider the “decision factors” in reviewing every petition for

Geriatric Release. 704 S.E.2d at 402 (emphasis added).

      Indeed, by reading Angel as “requir[ing]” consideration of

the   “decision     factors,”     the   dissent       puts    Angel    into     direct

conflict     with   the   plain      language    of    the     Geriatric      Release

Administrative Procedures, which permit the Parole Board to deny

a petition for Geriatric Release at the Initial Review stage for

any reason, and without consideration of the “decision factors.”

See supra Part II.         But in predicting how state courts would

resolve an unsettled issue of state law, we must reject, if at

all   possible,      predictions        that    would        ascribe    absurd        or

irrational    conclusions       to   state     courts.    See,    e.g.,       Pena    v.

Greffet, 110 F. Supp. 3d 1103, 1134 (D.N.M. 2015) (refusing to

predict that state court would resolve unsettled issue of state

law in a way that “would produce absurd results”); Union Cnty.

Ill. v. MERSCORP, Inc., 920 F. Supp. 2d 923, 931 (S.D. Ill.

2013) (adopting prediction of state law that was “[t]he only

non-absurd, non-inconvenient way to read the language of the law

itself and the language of Illinois appellate courts”); Jakomas

                                        27
v. McFalls, 229 F. Supp. 2d 412, 424 (W.D. Pa. 2002) (rejecting

plaintiff’s contention that state court would interpret state

law     in    a    way       that        would       lead       to     an     “absurd       result”).

Accordingly,           we    refuse        to    read       Angel’s         description       of    the

Geriatric Release Administrative Procedues as “apply[ing]” the

“decision factors” as requiring that the Parole Board consider

those    factors        at     the       Initial          Review      stage,    as     the    dissent

proposes.

        Contrary to the dissent’s position, Angel’s error is not

that     it       irrationally             interpreted               the     Geriatric        Release

Administrative           Procedures            as    requiring         consideration          of    the

“decision factors.”                 Rather, Angel unreasonably concluded that

the potential for consideration of maturity and rehabilitation

at    the    Assessment            Review       stage      is     adequate      to     comply       with

Graham’s      requirement               that    States      afford         juvenile     nonhomicide

offenders a “meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation,” 569 U.S. at 75, when

the Procedures allow the Parole Board to deny Geriatric Release

for any reason at the Initial Review stage and therefore provide

no    guarantee        that    the        Parole      Board     will        consider    a    juvenile

offender’s maturation and rehabilitation--a question of federal

constitutional              law.          Indeed,         under       the     Geriatric       Release

Administrative              Procedures,             the     Parole          Board     could        allow

Petitioner        to    die        in    prison       without        ever     having     considered

                                                     28
whether Petitioner had matured or was rehabilitated.                                 Graham

does not countenance such a possibility. 560 U.S. at 74, 79

(rejecting      sentences       of   life           without     parole     for    juvenile

nonhomicide offender because such a penalty “guarantee[s] [the

offender] will die in prison without any meaningful opportunity

to obtain release” and “foreswears altogether the rehabilitative

ideal”).

     Geriatric        Release      also    fails          to    comply    with    Graham’s

requirement      that    juvenile     offenders           have    the    opportunity      to

obtain        release      “based         on        demonstrated          maturity       and

rehabilitation” because it allows for the lifetime incarceration

of   a   juvenile        nonhomicide       offender            based     solely   on     the

heinousness or depravity of the offender’s crime.                           Data provided

by the Virginia Criminal Sentencing Commission shows that, to

date, 95.4 percent of the denials of Geriatric Release have been

based    on     the     “serious     nature          of   the     crime.”     J.A.     178. 9


     9 The Sentencing Commission’s 95.4 percent figure reflects
adjudications of Geriatric Release petitions filed by adult
offenders   only.     There   is   no   data   available  regarding
adjudications   of  Geriatric    Release   petitions   by  juvenile
offenders because no juvenile offender sentenced to life
imprisonment without parole in Virginia has reached the age of
sixty.    Respondents maintain the absence of data on the
adjudication   of  Geriatric     Release   petitions   by  juvenile
offenders precludes reliance on this data.       We agree with the
district court, however, that “[c]ompelling juveniles who are
currently serving sentences of life without the possibility of
parole to wait until enough similarly situated juveniles reach
age sixty so that courts can reassess the probabilities and
(Continued)
                                               29
Accordingly, the Parole Board denies Geriatric Release petitions

in nearly every case on grounds that the petitioners’ “crimes

demonstrate         an    ‘irretrievably          depraved    character’”--directly

contrary to Graham’s instruction that state penal regimes take

into account a juvenile nonhomicide offender’s greater “capacity

for change” relative to his adult counterparts by giving such

offender the opportunity “to demonstrate that the bad acts he

committed      as    a    teenager     are   not    representative       of    his    true

character.” 560 U.S. at 73, 79.

       For this reason, the dissent misconstrues Graham when it

appeals to the conduct giving rise to Petitioner’s conviction

and Petitioner’s conduct at sentencing to justify its position.

Post    at    5-6.        Rather,    Graham       forbids    States    from    making   a

“judgment . . . at the outset” that a juvenile offender is

“incorrigible” because juvenile offenders have a “capacity for

change.” 560 U.S. at 73, 79.

       A second reason Petitioner’s adjudication was objectively

unreasonable         is   that   the   Geriatric       Release    program      does   not

offer        juvenile       nonhomicide           offenders      the     “meaningful”

opportunity         for    release     traditionally          afforded    by    parole.




statistics   related to  geriatric release                         perpetuates the
injustice that Graham sought to correct.”                         LeBlanc, 2015 WL
4042175, at *17.



                                             30
Tellingly,    when      analyzing      whether    Geriatric        Release    complied

with   Graham,    the    Angel    court    said    that    “the     effect    of     [the

juvenile defendant’s life] sentences is that [he] will spend the

rest of his life confined in the penitentiary.” 704 S.E.2d at

401 (emphasis added).        The Supreme Court of Virginia, therefore,

expected the defendant in Angel--who was 17 when he committed

his offenses and less than 4 years older when the Supreme Court

of   Virginia     decided   his     appeal--would         spend     his    life     jail,

notwithstanding the availability of Geriatric Release and that

the defendant had had only four years to “grow[] and matur[e].”

Graham, 560 U.S. at 73.             But under clearly established Supreme

Court precedent--precedent repeatedly relied on by Graham, id.

at 70--“parole” should be the “normal expectation in the vast

majority     of   cases,”    Solem,       463    U.S.     at   300-03.         It     was

objectively unreasonable, therefore, for the Supreme Court of

Virginia to take the position that a penal regime under which it

concedes     early   release      is    the      exception,       rather     than    the

expectation, complies with Graham’s meaningfulness requirement.

       Relatedly,    Geriatric      Release       also    fails     to    satisfy     the

“meaningful”      opportunity       requirement          because     there    are      no

standards governing the denial of Geriatric Release petitions.

In the context of determining whether a life sentence without

parole complied with the Eighth Amendment, the Supreme Court

explained that “[t]he law generally specifies when a prisoner

                                          31
will be eligible to be considered for parole, and details the

standards    and     procedures      applicable      at     that   time,”          allowing

prisoners    “to     predict,   at    least    to    some    extent,         when   parole

might be granted.” Id. at 300-01.                By contrast, mechanisms that

allow a decision-maker to grant or deny early release “for any

reason     without       reference   to    any      standards,”     offer           inmates

nothing more than a “bare possibility” of release and therefore

do   not     constitute       “parole”     for       purposes      of        the    Eighth

Amendment. 10 Id. at 301.

     As explained above, the Geriatric Release statute does not

provide     the    Parole    Board    with     any    guidance      regarding         what

factors    it     must    consider   in   deciding        whether       to    release    a

geriatric prisoner. See supra Part II.A.                      And, as Petitioner

correctly notes, the Geriatric Release Administrative Procedures

     10 The dissent claims that Graham only “requir[es] that the
parole board have an ability to consider . . . evidence [of
maturity and rehabilitation] in deciding whether the offender
should be released.” Post at 22 (emphasis added).       Graham’s
holding that executive clemency does not comply with the
“meaningful opportunity for release” requirement belies the
dissent’s assertion.    In particular, notwithstanding that an
executive has unfettered discretion to grant clemency--and
therefore is “able” to consider an offender’s rehabilitation and
maturity in deciding whether to grant clemency--executive
clemency does not comply with Graham’s parole requirement
because it is an “ad hoc” process without any governing
standards. 560 U.S. at 69-70 (citing Solem, 463 U.S. at 300-01).
For purposes of Graham, the key issue is not whether the Parole
Board is “able” to consider a juvenile offender’s rehabilitation
and maturity--it is whether the Parole Board must consider
rehabilitation and maturation. See supra.



                                          32
authorize       the    Parole       Board    to     deny   a   petition      for    Geriatric

Release at the Initial Review stage for any reason.                            Without any

statutory or administrative guidance regarding what constitutes

a “compelling reason” warranting release or setting forth the

criteria     for        denying       a     juvenile       offender’s        petition      for

Geriatric Release at the Initial Review stage, it is impossible

to predict whether and when--if at all--the Parole Board will

grant Geriatric Release.                    Accordingly, Geriatric Release does

not     afford    juvenile          nonhomicide        offenders       the    “meaningful”

opportunity to obtain release to which Graham entitles them. See

Graham,    560     U.S.      at     69-70    (holding      that   executive         clemency,

which     the     Supreme           Court     has     recognized       lacks        governing

standards, did not constitute “meaningful opportunity to obtain

release” for juvenile offenders sentenced to life imprisonment).

      Third,      the       state    courts       unreasonably       concluded      that   the

Geriatric Release program complies with Graham’s dictate that

state punishment regimes account for the lesser culpability of

juvenile offenders.               In particular, even if the Parole Board was

required to consider the “decision factors” in deciding whether

to grant a petition for Geriatric Release--which it is not--a

prisoner’s youth at the time of his offense is not among those

decision    factors.              Therefore,        neither    the    Geriatric       Release

statute     nor       the    Geriatric       Release       Administrative          Procedures



                                               33
require that the Parole Board consider the “special mitigating

force of youth,” Thompson, 487 U.S. at 834, as Graham requires.

       More    significantly--and              as   the      district       court    correctly

noted--Geriatric Release treats juvenile offenders sentenced to

life    imprisonment        “worse”       than      adult      offenders      receiving     the

same sentence because juvenile offenders “must serve a larger

percentage of their sentence than adults do before eligibility

to apply for geriatric release.” LeBlanc, 2015 WL 4042175, at

*14.      For example, under Geriatric Release, a fifty-year-old

sentenced      to    life    in    prison       will      be    eligible      to    apply   for

Geriatric Release in ten years, but a sixteen-year-old will have

to serve forty-four years before receiving his first opportunity

to apply for Geriatric Release.                     Graham emphasized that a life

sentence is “especially harsh” for a juvenile offender relative

to   an    adult      offender      because,          under     such    a     sentence,     the

“juvenile      offender      will        on   average        serve     more    years     and   a

greater       percentage      of        his    life     in     prison       than    an   adult

offender.” 560 U.S. at 70.                     Given that (1) the Supreme Court

specifically held that sentencing systems that require juvenile

offenders to serve more years and/or a greater percentage of

their     lives     relative       to    adult      offenders        violate       the   Eighth

Amendment’s         proportionality           principle        and   that     (2)    Geriatric

Release        subjects           juvenile            offenders         to         longer--and

proportionately             longer--sentences,                 it      was         objectively

                                               34
unreasonable to conclude that Geriatric Release complied with

Graham.

                                            3.

       The dissent does not dispute that the Geriatric Release

Administrative       Procedures    permit          the    Parole    Board       to    deny    a

petition for Geriatric Release for any reason at the Initial

Review stage, without consideration of the “decision factors,”

post    at    21-22,    contrary      to    Graham’s       holding        that       juvenile

nonhomicide offenders sentenced to life imprisonment must have

an opportunity “to obtain release based on demonstrated maturity

and rehabilitation,” 560 U.S. at 75 (emphasis added).                                And the

dissent      does    not    dispute        that     Geriatric       Release          subjects

juvenile offenders, on average, to longer—-and proportionately

longer—-sentences, post at 23, contrary to Graham’s dictate that

state    penal      regimes   account       for     the    lesser        culpability         of

juvenile offenders, 560 U.S. at 76.                       Nonetheless, the dissent

maintains that Petitioner is not entitled to relief because we

fail    to    afford    his   state        court    adjudication          the    level       of

deference     Section      2254(d)(1)       requires,       as     the    Supreme       Court

interpreted that provision in Harrington v. Richter, 562 U.S. 86

(2011).      We disagree.

       In Harrington, the petitioner claimed that his state court

adjudication amounted to an unreasonable application of the test

for ineffective assistance of counsel set forth in Strickland v.

                                            35
Washington, 466 U.S. 668 (1984). Harrington, 562 U.S. at 105. In

rejecting the petition, the Supreme Court explained that “[t]he

standards created by Strickland and § 2254(d) are both ‘highly

deferential,’ . . . and when the two apply in tandem, review is

‘doubly’ so . . . .” Id. at 105 (quoting Strickland, 466 U.S. at

689; Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

      Notably,    Harrington      further    explained        that    “evaluating

whether a rule application was unreasonable [for purposes of

Section 2254(d)(1)] requires considering the rule’s specificity.

The   more   general     the   rule,   the   more    leeway       courts   have   in

reaching outcomes in case-by-case determinations.” Id. at 101

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).                       The

Court held that the Strickland standard “is a general one, so

the range of reasonable applications is substantial.” Id. at 105

(citing Knowles, 556 U.S. at 123).                  This echoes the Court’s

earlier pronouncement in Yarborough, upon which the dissent also

relies: “If a legal rule is specific . . . [a]pplications of the

rule may be plainly correct or incorrect.              Other rules are more

general, and their meaning must emerge in application over the

course of time.         Applying a general standard to a specific case

can demand a substantial element of judgment.” 541 U.S. at 664;

see   post   at   13.    Thus,   determining    whether       a    state   court’s

decision was “unreasonable” for purposes of Section 2254(d)(1)



                                       36
depends on the specificity of the constitutional rule the state

court applied.

      A court applying Strickland must determine two things: that

the   defendant’s         counsel’s     representation         “fell       below      an

objective standard of reasonableness,” and that the deficient

performance was “prejudicial to the defense.” 466 U.S. at 687–

91.   By contrast, Graham set forth a categorical rule barring

sentences     of   life     without     parole    for     juvenile      nonhomicide

offenders. 560 U.S. at 77–79.                And Graham clearly established

that parole or early release programs for such offenders must

(1)   provide      an   opportunity      to      obtain      release     “based       on

demonstrated maturity and rehabilitation” and (2) account for

the lesser culpability of juvenile offenders. See supra Part

III.A.     The Court characterized these minimum requirements as

establishing a “boundar[y]” on state courts’ authority to make

“case-by-case”      sentencing        determinations.        560    U.S.       at     77.

Accordingly,       Graham’s     categorical        rule       and    its       minimum

requirements for parole or early release programs do not afford

state courts the same “leeway” that the “reasonableness” and

“prejudice”     components     of     Strickland      permit.          Indeed,        the

dissent     misconstrues      Harrington       when     it    affords      the      same

“doubly”     deferential       review     to     Petitioner’s          state        court

adjudication as federal courts apply in reviewing state court

decisions applying Strickland.

                                        37
        Contrary      to   the    dissent,    we    do     not    engage    in   de   novo

review.       Rather, we hold that the Supreme Court of Virginia

unreasonably        applied       Graham     when     it    acknowledged         Graham’s

minimum requirements for parole or early release programs for

juvenile      nonhomicide        offenders    sentenced      to     life   imprisonment

but concluded that Geriatric Release—-which permits the Parole

Board    to    deny    petitions      for    Geriatric       Release       without    ever

considering a petitioner’s maturity or rehabilitation and which

treats juvenile offenders worse than adult offenders--complied

with those requirements.

                                             V.

        Nevertheless, Respondents and the dissent seek refuge in

Supreme Court’s statement that “[i]t is for the State, in the

first     instance,        to    explore     the    means        and   mechanisms      for

compliance” with Graham’s requirements. Appellants’ Br. at 24,

38, 42-43; post at 2.             According to Respondents and the dissent,

this      single       sentence      effectively           immunized       Petitioner’s

sentence--and those of all other juvenile nonhomicide offenders

sentenced to life imprisonment eligible for any form of early

release other than executive clemency--from collateral review.

        But   the      Supreme      Court’s        proper        regard    for    States’

independent judgment regarding how best to operate their penal

systems does not, “[e]ven in the context of federal habeas, . .

. imply abandonment or abdication of judicial review.”                           Miller-

                                             38
El v. Cockrell, 537 U.S. 322, 340 (2003).                   This is particularly

true when, as here, the Supreme Court clearly sets forth minimum

constitutional      requirements        to     guide       state      courts’        and

policymakers’ decisions--requirements that the Supreme Court of

Virginia readily determined from the plain language of Graham.

       In sum, we hold that notwithstanding its recognition of

Graham’s   “governing       legal   principles,”       the    Supreme        Court    of

Virginia    unreasonably       concluded       that        Geriatric        Release--a

program that predated Graham by more than 15 years, that permits

the Parole Board to deny release for any reason whatsoever, and

that   treats    juvenile    offenders       worse    than    adult     offenders--

complies   with    Graham’s    parole    requirement.           Accordingly,          we

affirm   the    district    court’s   decision       and    remand     so    that    the

Petitioner can be resentenced in accordance with Graham and the

Eighth Amendment.

                                                                              AFFIRMED




                                      39
NIEMEYER, Circuit Judge, dissenting:

      In affirming the grant of Dennis LeBlanc’s habeas petition

brought under 28 U.S.C. § 2254, the majority holds that the

Virginia     Supreme     Court   concluded           unreasonably         that    Virginia’s

geriatric release program provided a meaningful opportunity for

release to juveniles and therefore satisfied the requirements of

Graham     v.     Florida,     560   U.S.        48     (2010).           Graham     forbids

sentencing       juveniles     to    life       in    prison     without         parole    for

nonhomicide crimes.            In reaching its conclusion, the majority

relies simply on its expressed disagreement with the Virginia

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

386   (Va.      2011),   and   effectively           overrules      it.      The    Virginia

court’s      opinion,      however,        is        demonstrably         every     bit    as

reasonable as the majority’s opinion in this case and should be

given deference under § 2254(d)(1).

      After      16-year-old     LeBlanc         raped    a    62-year-old         woman   in

Virginia     Beach,      Virginia,    in    1999,        he   was    convicted       in    the

Virginia Beach Circuit Court of abduction and rape.                                The court

sentenced him in 2003 to life imprisonment on each count.                              While

Virginia had, in 1994, abolished traditional parole for felony

offenders, see Va. Code Ann. § 53.1-165.1, it had at the same

time adopted a “geriatric release” program that allows for the

conditional release of inmates who serve at least 10 years of

their sentence and reach the age of 60, see id. § 53.1-40.01.

                                            40
       In 2010, the U.S. Supreme Court handed down its decision in

Graham, where it held that “for a juvenile offender who did not

commit homicide the Eighth Amendment forbids the sentence of

life without parole.”         560 U.S. at 74.      The Court explained that

a   State   must    provide   this   class   of   juvenile    offenders     “some

meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation,” but that “[i]t is for the State,

in the first instance, to explore the means and mechanisms for

compliance.”       Id. at 75.

       In its first application of Graham, the Virginia Supreme

Court   held   that    the    factors   Virginia    applies    in    considering

candidates for geriatric release were the same as “the factors

used in the normal parole consideration process” and that, while

Virginia’s geriatric release program had “an age qualifier,” it

nonetheless afforded inmates, including juvenile offenders, “the

‘meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation’ required by the Eighth Amendment.”

Angel, 704 S.E.2d at 402 (quoting Graham, 560 U.S. at 75).

       After Angel had been decided, LeBlanc filed a motion in the

Virginia Beach Circuit Court to vacate his sentence as invalid

under Graham.       The Circuit Court denied his motion, relying on

Angel to conclude that Virginia had “an appropriate mechanism in

place” to enable LeBlanc “to receive some form of parole.”                    But

when    LeBlanc     sought    federal   habeas     relief    under    28   U.S.C.

                                        41
§ 2254,     the        district        court        granted       LeBlanc’s         petition,

concluding,       contrary      to     the    Virginia         court’s    decision,        that

Virginia’s    geriatric         release        program     fell       short   of     Graham’s

requirements.

      In   now     affirming,        the      majority         unfortunately        fails     to

respect, in any meaningful way, the deference Congress requires

federal    courts       to    give     to     state      court    decisions         on    post-

conviction review under § 2254.                     Under even a loose application

of   the   governing         standard    in       § 2254(d),      a    reviewing         federal

court would be constrained to conclude that the Virginia Beach

Circuit Court’s ruling was not contrary to or an unreasonable

application of Graham.               See 28 U.S.C. § 2254(d)(1).                     To hold

otherwise     would      require        finding         that    the     Virginia         Supreme

Court’s decision in Angel, as well as the Virginia Beach Circuit

Court’s     decision         relying     on       it,    amounted        to   an     “extreme

malfunction in the state criminal justice system.”                                 Harrington

v. Richter, 562 U.S. 86, 102 (2011).

      To reach its conclusion that Virginia’s geriatric release

program does not provide juveniles with a meaningful opportunity

to obtain release, the majority conducts its own de novo review

of the program, concluding that the program lacks “governing

standards”       for    release.            The     majority,         however,     fails     to

recognize that our task on a § 2254 habeas petition is not to

evaluate state parole systems de novo but rather to determine

                                               42
whether    the    Virginia          Supreme    Court’s      evaluation            of   its   own

program was an unreasonable application of Graham, see 28 U.S.C.

§ 2254(d)(1), which it clearly was not.                          Graham held that the

Eighth Amendment forbids States from determining, at the time of

sentencing,      that     a    juvenile       offender      who     did      not       commit    a

homicide “never will be fit to reenter society,” 560 U.S. at 75

(emphasis added), and that such offenders must have “a chance to

demonstrate      growth       and    maturity,”      id.    at    73.        Analyzing       the

sufficiency      of     Virginia’s         geriatric        release          program      under

Graham, the Virginia Supreme Court reasonably concluded that the

program,   which      employs        the   same     “factors      used       in    the   normal

parole    consideration            process,”       provides      nonhomicide           juvenile

offenders with “the ‘meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation’ required by

the   Eighth     Amendment.”           Angel,       704    S.E.2d       at    402      (quoting

Graham, 560 U.S. at 75).                While the majority may disagree with

the Virginia Supreme Court’s conclusion, the fact that it was

reasonable precludes LeBlanc from obtaining relief under § 2254.

      Moreover, beyond this case, the majority’s approach will

encourage federal courts to scrutinize state policies and parole

determinations        under     similar       systems,     a     result      that      Congress

clearly intended to forestall when it imposed the restrictions

stated in § 2254.              Indeed, the Supreme Court also sought to

avoid    this    result       by    explicitly       leaving      the     application           of

                                              43
Graham to the States.           See Graham, 560 U.S. at 75 (noting that

it is for the State “to explore the means and mechanisms for

compliance”).

     At     bottom,     when    applying      the   prescribed   standards     to

evaluate the Virginia court’s application of Graham, it is clear

that LeBlanc’s petition for a federal writ of habeas corpus must

be denied.    I now address his petition under those standards.


                                         I

     During the morning of July 6, 1999, Dennis LeBlanc, who was

at the time 16 years old, asked a 62-year-old woman, who was

walking home from a grocery store, for a cigarette.                   After the

woman told him that she did not smoke, LeBlanc pushed her down,

dragged her to nearby bushes, raped her, and stole her purse.

When police were later able to match LeBlanc’s DNA with that of

the sperm sample taken from the woman, LeBlanc was charged and

convicted    in   the    Virginia     Beach    Circuit   Court   of   rape,    in

violation of Virginia Code § 18.2-61, and abduction with intent

to defile, in violation of Virginia Code § 18.2-48.                     He was

sentenced to life imprisonment on each count in March 2003.                   The

court noted that “the two offenses have to be some of the most

serious   charges     I’ve     ever   heard   about.”    When    imposing    life

imprisonment, the court did not mention parole, as traditional

parole had been abolished in 1994 when the geriatric release


                                        44
program was adopted. ∗        In response to the sentence given, LeBlanc

told the court twice, “F--k you.”

     More    than     seven    years    after       LeBlanc’s    sentencing,      the

Supreme Court decided Graham, holding for the first time that

“for a juvenile offender who did not commit homicide the Eighth

Amendment forbids the sentence of life without parole.”                           560

U.S. at 74 (emphasis added).                The Court explained that while

“[a] State [was] not required to guarantee eventual freedom to a

juvenile    offender       convicted   of     a    nonhomicide   crime,”    it    was

required to provide the juvenile offender with “some meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.”          Id. at 75.    The Court, however, directed that

“[i]t is for the State, in the first instance, to explore the

means and mechanisms for compliance” with that command.                    Id.

     After    the     Graham       decision       had   been   handed   down,    the

Virginia Supreme Court considered whether Virginia’s geriatric

release    program    satisfied      Graham’s       requirements,   and    it    held

that the program did so.             See Angel, 704 S.E.2d at 402.               More

specifically,       the    court    explained       that   Virginia’s     geriatric

     ∗ The majority claims that LeBlanc was sentenced to “life
imprisonment without parole,” ante at 3 (emphasis added), but
its statement begs the question.    LeBlanc was sentenced simply
to life imprisonment, and, at the time, his sentence allowed for
the possibility of release under Virginia’s geriatric release
program, leaving the question whether the program functions as a
form of parole.



                                         45
release program, as set forth in Virginia Code § 53.1-40.01,

allows for the conditional release of inmates when they reach

age 60 and have served 10 years and that “the factors used in

the   normal      parole    consideration     process”   apply      to   such

determinations.      Id.     The court concluded that, “[w]hile [the

geriatric release program] has an age qualifier, it provides

. . . the ‘meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation’ required by the Eighth

Amendment.”      Id. (quoting Graham, 560 U.S. at 75).

      In   May    2011,    several   months   after   Angel   was   decided,

LeBlanc filed a motion in the Virginia Beach Circuit Court to

vacate his life sentence as invalid under Graham.             He contended

that Angel was wrongly decided and that he did not indeed have a

meaningful opportunity for release.           The Circuit Court, however,

denied LeBlanc’s motion, explaining:

      [The] Supreme Court of Virginia has already looked at
      this issue in the Angel case and determined that there
      was an appropriate mechanism in place . . . for a
      defendant to receive some form of parole as enunciated
      in [Graham], and they denied Mr. Angel’s appeal. . . .
      The court feels and finds and is so ordering that
      there is an appropriate mechanism in place, that the
      sentence rendered back in 2003 for Mr. LeBlanc . . .
      in which the defendant received two life sentences
      . . . was the appropriate sentence . . . .

(Emphasis added).         The Virginia Supreme Court summarily denied

LeBlanc’s petitions for appeal and for rehearing.




                                      46
     LeBlanc        filed      this    federal     habeas   petition       pursuant       to

§ 2254, contending again that the Virginia Supreme Court had

wrongly decided Angel and that, based on statistics that he had

presented to the state court, he had only a “remote possibility

of   release,”        which         did    not     amount    to     the      “meaningful

opportunity” for release required by Graham.                      A magistrate judge

recommended        dismissing         LeBlanc’s    petition,       but    the     district

court   disagreed        and    granted     the    petition,      ordering       that    the

Virginia Beach Circuit Court resentence LeBlanc.                          The district

court   concluded        that       “the   state    court’s       decision       was    both

contrary      to,    and       an     unreasonable       application       of,     clearly

established federal law set forth in Graham,” explaining that

“[t]here      is    no      possibility      that     fairminded         jurists       could

disagree that the state court’s decision conflicts with[] the

dictates of Graham.”            The court noted further that the geriatric

release program “falls far short of the hallmarks of compassion,

mercy   and    fairness         rooted      in    this    nation’s       commitment      to

justice.”

     From the district court’s judgment, the respondents -- the

Commonwealth of Virginia and Randall Mathena, the Warden of Red

Onion State Prison (collectively herein, the “Commonwealth” or

“Virginia”) -- filed this appeal.




                                             47
                                               II

       The operative state court decision for our review is the

decision of the Virginia Beach Circuit Court.                        See Grueninger v.

Dir., Va. Dep’t of Corr., 813 F.3d 517, 525 (4th Cir. 2016)

(“‘look[ing]         through’”     the    Virginia         Supreme       Court’s    summary

refusal to review the defendant’s appeal and “evaluat[ing] the

Circuit Court’s reasoned decision”).                          That decision concluded

that        Virginia’s     geriatric           release         program      provides     an

“appropriate mechanism” for implementing Graham.                             The Circuit

Court relied on the Virginia Supreme Court’s opinion in Angel,

which    applied      Graham     and   concluded         that    Virginia’s        geriatric

release      program,     which    uses    the       “normal”     parole     factors    for

determining         release,    provided       “the      ‘meaningful      opportunity    to

obtain        released         based      on        demonstrated          maturity      and

rehabilitation’ required by the Eighth Amendment.”                            Angel, 704

S.E.2d at 402 (quoting Graham, 560 U.S. at 75).

       Faced    with     the    district       court’s        contrary    conclusion,    we

must decide whether the Circuit Court’s decision “was contrary

to,    or    involved    an     unreasonable         application     of,”     Graham,    28

U.S.C. § 2254(d)(1).

                                               A

       First, to satisfy the requirement of § 2254(d)(1) that the

state       court    decision     be   shown        to   be    “contrary     to”    Graham,

LeBlanc would have to show (1) that the state court “applie[d] a

                                               48
rule    different   from     the       governing         law    set    forth       in   [Supreme

Court] cases,” or (2) that it decided this case “differently

than    [the   Supreme    Court]        [has]      done    on     a    set    of    materially

indistinguishable        facts.”         Bell       v.    Cone,       535    U.S.       685,   694

(2002).        Therefore,     “a       run-of-the-mill            state-court           decision

applying the correct legal rule from [Supreme Court] cases to

the facts of a prisoner’s case would not fit comfortably within

[the] ‘contrary to’ clause.”                  Williams v. Taylor, 529 U.S. 362,

406 (2000).

       In this case, no one can seriously argue that the Virginia

Beach    Circuit    Court    failed        to      correctly          identify      Graham     as

stating the applicable legal rule.                       In denying LeBlanc’s motion

to vacate his sentence, the Circuit Court specifically discussed

Graham,    noting   how     “the       U.S.    Supreme         Court    in    rendering        its

decision gave the court[s] guidelines to deal with defendants

who were juveniles at the time of their offenses.”                                 Because the

Circuit    Court    operated       under      the       correct       U.S.    Supreme      Court

rules and did not reach an opposite conclusion from the Supreme

Court on a question of law, the argument that the Virginia Beach

Circuit    Court    produced       a    decision          “contrary         to”    Graham      can

survive    only     if      the     facts          of     Graham        were       “materially

indistinguishable” from LeBlanc’s case.                         Bell, 535 U.S. at 694.

But LeBlanc cannot make this showing either.



                                              49
      Graham involved a juvenile offender convicted in Florida

for a nonhomicide crime, who was sentenced to life in prison

without any possibility of parole.                As such, his sentence:

      guarantee[d] he will die in prison without any
      meaningful opportunity to obtain release, no matter
      what he might do to demonstrate that the bad acts he
      committed as a teenager [were] not representative of
      his true character, even if he [were to] spend[] the
      next half century attempting to atone for his crimes
      and learn from his mistakes.

560   U.S.    at   79.     Because    Florida          had    abolished     its    parole

system, the life sentence gave Graham “no possibility of release

unless   he    [was]      granted    executive          clemency.”         Id.    at    57

(emphasis     added).       The    Court    noted,      however,     that      executive

clemency provided Graham only a “remote possibility” of release,

id. at 70, and that Florida had effectively “denied him any

chance   to    later      demonstrate      that        he    [was]   fit    to     rejoin

society,” id. at 79.              In these circumstances, the Court held

that the Eighth Amendment prohibits the imposition of a sentence

of life without the possibility of parole for juvenile offenders

who commit nonhomicide crimes.             Id. at 74.

      LeBlanc’s     case    differs     materially.            Unlike      Florida     law

before   Graham,     Virginia’s       geriatric         law    affords     a     juvenile

sentenced     to   life    imprisonment         some    opportunity      for     release.

The geriatric law provides in relevant part:

      Any   person  serving  a  sentence  imposed   upon  a
      conviction for a felony offense . . . who has reached
      the age of sixty or older and who has served at least

                                           50
        ten years of the sentence imposed may petition the
        Parole Board for conditional release.    The Parole
        Board shall promulgate regulations to implement the
        provisions of this section.

Va. Code Ann. § 53.1-40.01.                     And the Virginia Supreme Court --

the ultimate authority on Virginia law -- has construed “[t]he

regulations for conditional release under [§ 53.1-40.01] [to]

provide         that    if    the    prisoner        meets    the       qualifications        for

consideration contained in the statute, the factors used in the

normal parole consideration process apply to conditional release

decisions         under      this    statute.”          Angel,         704   S.E.2d     at    402

(emphasis added).             Thus, LeBlanc cannot show that the facts in

Graham, where the prisoner enjoyed no opportunity for release

outside of clemency, are materially indistinguishable from the

facts      of    this     case,     where   LeBlanc       has     an    opportunity      to    be

released by the Parole Board.

                                                 B

      Second,          LeBlanc      is   also    unable      to   demonstrate         that    the

decision by the Virginia Beach Circuit Court, applying Angel,

was   an    “unreasonable           application       of”    Graham.         See   28    U.S.C.

§ 2254(d)(1).           To satisfy this requirement, LeBlanc would have

to show that, even “if the state court identifie[d] the correct

governing legal principle from [Supreme Court] decisions,” it

“unreasonably applie[d] that principle to the facts of the . . .

case.”      Williams, 529 U.S. at 365.                  And to show that the state


                                                51
court unreasonably applied governing legal principles, he would

have to show that the state court’s decision was “‘objectively

unreasonable,’” rather than “merely wrong” or involving “clear

error.”    White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (quoting

Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)).

       To emphasize the difficulty of meeting this standard, the

Supreme Court has said that a prisoner would have to show “that

the state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error

well    understood    and     comprehended    in   existing    law     beyond   any

possibility for fairminded disagreement.”              Harrington, 562 U.S.

at 103; see also id. at 101 (“A state court’s determination that

a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the

state   court’s    decision”     (quoting     Yarborough     v.     Alvarado,   541

U.S. 652, 664 (2004))).               Not surprisingly, the rare decision

finding    § 2254(d)(1)        satisfied      typically      arises     from    the

misapplication       of   a   long-established     Supreme     Court    standard.

See, e.g., Rompilla v. Beard, 545 U.S. 374, 389 (2005) (finding

it was objectively unreasonable for the state court to conclude

that,    under    Strickland     v.    Washington,   466     U.S.     668   (1984),

capital   defense     lawyer’s    failure     to   consult    prior    conviction

file that was certain to contain aggravating evidence was not



                                         52
ineffective assistance); Wiggins v. Smith, 539 U.S. 510, 527-28

(2003) (similar for file containing mitigating evidence).

       In     this   case,    after       the    Virginia    Beach     Circuit    Court

correctly identified Graham as the governing law, it applied

that decision to the facts of LeBlanc’s case.                    In doing so, the

Circuit Court considered the Graham requirement that States must

provide a mechanism that affords a juvenile sentenced to life

imprisonment “a meaningful opportunity for release.”                         Since the

Graham Court stated that its holding applied only to juvenile

offenders convicted of a nonhomicide crime and sentenced to life

imprisonment without parole, Graham, 560 U.S. at 75, and since

the Virginia Supreme Court had held that the geriatric release

program       employed     normal     parole      factors,    the      Circuit     Court

reasonably      concluded     that    LeBlanc’s      sentence     did      not   violate

Graham.

       Indeed, it strains credulity to conclude that the Circuit

Court’s application of Graham was “so lacking in justification”

that     it      fell      “beyond        any     possibility        for     fairminded

disagreement.”          Harrington, 562 U.S. at 103.             For one, Graham’s

focus on the parallel between life without parole and the death

penalty,       see   560     U.S.    at     69-70,    along     with       the   Court’s

indictment of life without parole as impermissibly deeming a

“juvenile offender forever . . . a danger to society,” id. at 72

(emphasis added), suggests that the Court saw no constitutional

                                            53
problem with state parole systems that allow for release only

later in life.        Indeed, the Court emphasized that “[t]he Eighth

Amendment     does       not     foreclose         the     possibility        that     persons

convicted of nonhomicide crimes committed before adulthood will

remain    behind     bars      for   life.         It     does    prohibit      States    from

making the judgment at the outset that those offenders never

will be fit to reenter society.”                        Id. at 75 (emphasis added).

Thus, the state court was justified in reading Graham’s Eighth

Amendment concerns as limited to traditional sentences of life

without any possibility of parole.

       Further, Graham did not define the bounds of its singular

requirement       that      a     juvenile         must         have    “some       meaningful

opportunity to obtain release based on demonstrated maturity and

rehabilitation.”          575 U.S. at 75.                  Rather, in adopting “[a]

categorical       rule     against        life     without        parole      for     juvenile

nonhomicide offenders,” id. at 79, Graham declined to address

what     characteristics          render      a      parole        or    release      program

“meaningful.”         The       Court   did      not      dictate,      for   example,    how

frequently    a      parole       board     must         meet    regarding      a    juvenile

nonhomicide offender or when, after a sentence is imposed on the

offender, it must first begin meeting.                             Graham required only

that, under a procedure that the Court did not specify, the

offender be given a meaningful opportunity for release based on

demonstrated maturity and rehabilitation.                         Given Graham’s leeway

                                              54
with   respect         to   procedures       and   decisionmaking,     the       range   of

permissible state court interpretation is commensurately broad.

See Yarborough, 541 U.S. at 664 (“[E]valuating whether a rule

application           was   unreasonable      requires      considering     the    rule’s

specificity.           The more general the rule, the more leeway courts

have       in   reaching      outcomes       in    case-by-case    determinations”).

This       is   for    good   reason.        Federal     courts    simply    cannot      be

inserting themselves so deeply into state parole procedures that

they effectively usurp the role of a state parole board.                                 See

Vann v. Angelone, 73 F.3d 519, 521 (4th Cir. 1996) (“It is

difficult        to     imagine     a   context      more    deserving      of    federal

deference than state parole decisions”).

       Affording        the   proper     deference     to    its   interpretation         of

Graham’s broad rule, it is readily apparent that the Virginia

Beach Circuit Court operated well within its margin of error in

concluding that Virginia’s geriatric release program provides a

“meaningful           opportunity       to   obtain     release.”         The     program

includes the Parole Board’s review of the inmate’s circumstances

by considering a range of factors, such as:

       •    Whether the individual’s history, physical and
            mental condition and character, and the individual’s
            conduct, employment, education, vocational training,
            and    other    developmental    activities    during
            incarceration, reflect the probability that the
            individual will lead a law abiding life in the
            community   and  live   up  to   all  conditions   of
            [geriatric release] if released;


                                              55
      •   Length of sentence;

      •   Facts and circumstances of the offense;

      •   Mitigating and aggravating factors;

      •   Inter-personal relationships with staff and inmates;
          and

      •   Changes in attitude toward self and others.

Virginia     Parole    Board    Policy   Manual   2-4   (Oct.    2006).      These

factors on their face allow for consideration of an offender’s

maturity, rehabilitation, and youth at the time of the offense.

Further,     inmates     such   as   LeBlanc    know    in   advance    that    the

Virginia Parole Board will be considering these factors when it

determines geriatric release so that “it is possible to predict,

at   least   to   some    extent,    when     [geriatric     release]   might   be

granted.”     Solem v. Helm, 463 U.S. 277, 301 (1983).                  Thus, the

Virginia Beach Circuit Court’s conclusion, after applying Angel,

that Virginia’s geriatric release law provided the meaningful

opportunity to obtain release, certainly was not “an error well

understood     and     comprehended       in    existing      law   beyond      any

possibility for fairminded disagreement.”                Harrington, 562 U.S.

at 103; see also id. at 102 (“It bears repeating that even a

strong case for relief does not mean the state court’s contrary

conclusion was unreasonable”).              To hold otherwise would require

a finding in effect that the Virginia Beach Circuit Court judge




                                         56
and   the   Virginia    Supreme      Court       justices          failed    to       meet   the

definition of “fairminded jurists.”                See id. at 101.

      LeBlanc concedes, as he must, that the geriatric release

program     provides   some     opportunity            for    release.           He    argues,

rather, that the opportunity is not meaningful because of the

low level of success shown by statistics.                            The statistics to

which he refers, however, provide him with minimal support as

they relate to older inmates and do not reflect the outcomes of

offenders    similarly       situated      to    him.          Given   that       Virginia’s

parole    reforms    apply    only    to    felony           offenders      who    committed

their crimes after 1994, juvenile offenders sentenced after 1994

will not gain eligibility for geriatric release for years to

come, as they must first reach the age of 60.                               A 17-year-old

juvenile offender who committed a nonhomicide offense in 1995,

for example, would not become eligible for geriatric release

until 2038.         Because of this timing, relevant statistics for

juvenile offenders simply do not exist.

      I conclude that, just as the Virginia Beach Circuit Court

did   not    rule    “contrary       to”    Graham,           it    also     was       not    an

“unreasonable application of” Graham to LeBlanc’s circumstances

within the meaning of § 2254(d)(1).

                                           III

      Nonetheless,     the    majority,          for    purposes       I    do    not    fully

understand, engages in an aggressive effort to prop up LeBlanc’s

                                           57
claim.     To do so, it rests on its unsupported conclusions that

Virginia’s geriatric release program does not adequately allow

for release “based on maturity and rehabilitation”; that it does

not account for youth as a mitigating factor; and that it lacks

governing standards.        Even if the majority’s rigorous, de novo

scrutiny     of   the    Virginia   court’s    reasoning     did     not    defy

§ 2254(d)’s deferential standard of review, its conclusions are

demonstrably mistaken on their own terms.

     The majority first claims that Virginia’s program fails to

provide any consideration for the “special mitigating force of

youth,” ante at 34; see also ante at 30-31, and for an inmate’s

progress with respect to “maturity and rehabilitation,” ante at

28-29.     Yet, in the very same opinion, it contradictorily quotes

the factors that the Parole Board is required to consider in

granting release under the program, noting that the Parole Board

is   to    consider     “certain”   characteristics     of   the     offender,

including     “‘the     individual’s    history,   physical        and     mental

condition and character, . . . conduct, employment, education,

vocational training, and other developmental activities during

incarceration,’         prior   criminal      record,      behavior        while

incarcerated, and ‘changes in motivation and behavior.’”                    Ante

at 9-10 (emphasis added).           Saying that these factors do not

account for maturity and rehabilitation flaunts reason.                      But

more importantly, the Virginia Supreme Court’s conclusion that

                                       58
Virginia law requires considerations of “normal parole factors”

such as rehabilitation and maturity is one of state law and thus

is   binding    on   this   court.     And   once   it   is   understood   that

Virginia       law    requires       consideration       of    maturity    and

rehabilitation, it follows that, under the § 2254(d) standard,

Virginia’s geriatric release program satisfied Graham.

      Second, the majority’s conclusion that the Virginia program

lacks “governing standards” for release is puzzling in light of

the majority’s own description of the Virginia program, which

includes a detailed description of the relevant standards:

            The Geriatric Release Administrative Procedures
      set forth a two-stage review process for Geriatric
      Release petitions. [Id.]      At the “Initial Review”
      stage, the Parole Board reviews a prisoner’s petition
      --   which   must   provide  “compelling    reasons   for
      conditional release” -- and the prisoner’s “central
      file and any other pertinent information.” J.A. 287.
      The Parole Board may deny the petition at the Initial
      Review stage based on a majority vote. [Id.] Neither
      the statute nor the Geriatric Release Administrative
      Procedures states what constitute “compelling reasons
      for conditional release” nor does either document set
      forth    any  criteria   for  granting   or   denying   a
      prisoner’s petition at the Initial Review stage. [Id.]

           If the Parole Board does not deny a petition at
      the Initial Review stage, the petition moves forward
      to the “Assessment Review” stage. [Id. at 288]     As
      part of the Assessment Review, a Parole Board member
      or designated staff member interviews the prisoner.
      [Id.] During that interview, the prisoner may present
      written and oral statements as well as any written
      material bearing on his case for parole.          The
      interviewer then drafts a written assessment of the
      prisoner’s “suitability for conditional release” and,
      based on that assessment, recommends whether the
      Parole Board should grant the petition. J.A. 288. In

                                       59
     order to grant geriatric release to a prisoner
     sentenced to life imprisonment, at least four members
     of the five-member Parole Board must vote in favor of
     release. [Id.]

          In engaging in the Assessment Review, Parole
     Board members should consider “[a]ll factors in the
     parole    consideration     process     including     Board
     appointments and Victim Input.” Id.          The Virginia
     Parole Board Policy Manual includes a long list of
     “decision factors” to be considered in the parole
     review process.     J.A. 297.    These factors include:
     public safety, the facts and circumstances of the
     offense, the length and type of sentence, and the
     proposed release plan. [J.A. 297–99.]          The Parole
     Board also should consider certain characteristics of
     the offender, including “the individual’s history,
     physical and mental condition and character, . . .
     conduct, employment, education, vocational training,
     and     other     developmental      activities      during
     incarceration,” prior criminal record, behavior while
     incarcerated,    and    “changes    in    motivation    and
     behavior.”    J.A. 297–99.    Finally, the Parole Board
     should consider impressions gained from interviewing
     the prisoner as well as information from family
     members, victims, and other individuals. [J.A. 300.]

Ante at 8-10 (emphasis added; brackets in original).

     The majority’s effort to bypass the “governing standards”

that it quotes is, in essence, an argument that the Parole Board

may not deny release without considering the juvenile offender’s

maturity and rehabilitation and that the Parole Board must, on

each application for release, explicitly consider maturity and

rehabilitation,   regardless   of     what   is   presented   in   the

application.   This argument, however, reads into Graham far more

than the case actually holds.       Graham does not dictate parole

board procedures and decisionmaking.     And, more particularly, it



                                 60
does   not    limit       the   permissible         factors   for   denying      release.

Rather,      it   requires      that    the     juvenile      offender   be    given    an

opportunity        for    release      based    on    “demonstrated      maturity      and

rehabilitation,” imposing the burden on the juvenile offender to

present   evidence         of   maturity       and    rehabilitation     and     in   turn

requiring that the parole board have an ability to consider that

evidence in deciding whether the offender should be released.

Within this structure, therefore, when the Virginia Parole Board

is presented with a juvenile offender’s application that makes a

showing of maturity and rehabilitation, the Board is authorized,

on the stated factors under which it operates, to grant release.

This is just the meaningful opportunity that the Supreme Court

describes in Graham.              And Angel thus properly held that the

Virginia Geriatric Release factors provide that ability to grant

release       on         demonstrated          maturity       and     rehabilitation,

particularly in stating that the Parole Board should consider

the     juvenile         offender’s       developmental           activities       during

incarceration, his behavior while incarcerated, and the changes

in his motivation and behavior.

       Stated      otherwise,     under       the    majority’s     view,   to    satisfy

Graham a State would have to consider only the Graham factors in

considering release, denying the Parole Board the opportunity to

consider any of the non-Graham factors that might be relevant to

the juvenile offender’s application for release and the Board’s

                                              61
decision on that application.                   That aggressive reading of Graham

would, I think, surprise the Supreme Court that decided it.                                  But

more    importantly,      it    certainly            was    not    unreasonable       for    the

Virginia Circuit Court to understand Graham as not mandating the

precise      factors    that    every          parole      board        must   consider     when

reviewing juvenile offenders’ applications for release.

       The   majority     also       faults         the    geriatric       release    program

because it allows for longer sentences to juveniles than adults,

relying simply on the fact that juveniles commit their crimes

earlier in life.        See ante at 21, 34-35.                    It is a reality that a

person who commits a serious crime at age 35 or, indeed, as a

juvenile, will have the possibility of serving more years in

prison than a person who commits the same crime at age 62.                                   But

if that reality violates Graham, it is hard to see how any term-

of-years      sentence        for        a     juvenile         could     withstand    Eighth

Amendment scrutiny; a young person’s chances of serving a full

sentence are inherently higher than an older person’s.

       Finally, the majority surmises that the Virginia Supreme

Court in Angel expected that Angel would spend the rest of his

life    in   jail   and   that       therefore            the    court’s       application    of

Graham was unreasonable because this observation implied that

early     release      would        be       “the     exception,         rather     than     the

expectation.”          Ante    at        31.        This   ground        for   attacking     the

Virginia Supreme Court can rest only on wild speculation, as no

                                                62
juvenile    offender      has    yet    been   processed       under    the    State’s

geriatric release program, and the majority has pointed to no

data to predict how the Parole Board will decide applications of

juveniles for early release when they first qualify.                     Graham did

not require that juveniles be released at any given time; it

required that the juveniles be given a meaningful opportunity to

prove themselves and to persuade the Parole Board to grant them

release.     If the Parole Board is given that authority by law, as

the Virginia court found it is, then Graham is satisfied.

     In    short,   the    majority      has   reviewed    de    novo        Virginia’s

parole criteria based on its own expectations of how the system

might work and has failed to appreciate that our sole task on a

§ 2254 petition is to determine whether the Virginia Supreme

Court’s decision in applying Graham was unreasonable.                           And in

fulfilling the task given by § 2254, it is not sufficient to

show simply that the Virginia Supreme Court was wrong or even

committed clear error; rather, it must be shown that the court

erred in a manner “well understood and comprehended in existing

law,”   such   that    its      error   was    “beyond    any    possibility       for

fairminded     disagreement.”           See    White,    134    S.     Ct.    at   1702

(quoting Harrington, 562 U.S. at 103).




                                          63
                                   *      *     *

       Because of the limitations of the Supreme Court’s holding

in Graham, the directly relevant holding by the Supreme Court of

Virginia in Angel, and the restrictions imposed by § 2254(d), we

are    simply   not    free   to       grant     LeBlanc’s      habeas   petition.

Unfortunately, the majority, in its adventuresome opinion, pays

only lip service to the required standards of review.                     Were it

to have applied them meaningfully, I submit, the judgment of the

district court granting LeBlanc his habeas petition would have

to    be   reversed   and   the    case       remanded   with    instructions   to

dismiss the petition.




                                          64
