No. 18-217
IN THE

Supreme Court of the United States
RANDALL MATHENA, WARDEN,
Petitioner,
v.
LEE BOYD MALVO,
Respondent.

ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

JANET R. CARTER
SIMON KRESS
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
CRAIG S. COOLEY
3000 Idlewood Avenue
P.O. Box 7268
Richmond, VA 23221

DANIELLE SPINELLI
Counsel of Record
CATHERINE M.A. CARROLL
KEVIN M. LAMB
AMY C. LISHINSKI*
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
danielle.spinelli@wilmerhale.com

 QUESTION PRESENTED
Whether the Fourth Circuit erred in holding that
the constitutional rule articulated in Miller v. Alabama, 567 U.S. 460 (2012), and made retroactive to cases on collateral review in Montgomery v. Louisiana,
136 S. Ct. 718 (2016), applies to juveniles convicted of
capital murder in Virginia and sentenced to life without
parole with no consideration of whether their youth
might warrant a lesser sentence.

(i)

 TABLE OF CONTENTS
Page
QUESTION PRESENTED ............................................... i
TABLE OF AUTHORITIES ........................................... v
INTRODUCTION .............................................................. 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ............................................. 4
STATEMENT ..................................................................... 5
A. Factual Background ............................................. 5
B. Malvo’s Convictions And Sentences................... 8
C. This Court’s Juvenile Sentencing
Decisions ............................................................... 10
D. Malvo’s Federal Habeas Proceedings .............. 13
SUMMARY OF ARGUMENT ....................................... 18
ARGUMENT ..................................................................... 22
I.

MILLER
REQUIRES
ACTUAL
CONSIDERATION OF YOUTH WHENEVER A
JUVENILE IS SENTENCED TO LIFE
WITHOUT PAROLE ...................................................... 22
A. Each Of Miller’s Two Strands Of
Precedent Supported Its Holding That
Youth Must Be Considered ............................... 23
B. Montgomery Confirms That Miller
Requires Actual Consideration Of
Youth, Not Merely “Discretion” To
Consider It ........................................................... 27

II. THE WARDEN’S READING OF MILLER IS
WRONG ......................................................................... 31
(iii)

 iv
TABLE OF CONTENTS—Continued
Page
A. The Warden’s Reading Of Miller Is
Irreconcilable With Miller’s Language
And Reasoning .................................................... 31
B. If The Warden’s Reading Of Miller
Were Correct, Montgomery Could Not
Have Held Miller Retroactive .......................... 35
C. The Court Should Reject The United
States’ Invitation To Repudiate
Montgomery’s Reasoning .................................. 40
III. MALVO’S SENTENCING DID NOT SATISFY
MILLER ........................................................................ 47
CONCLUSION ................................................................. 54
ADDENDUM: Relevant 2002 Statutory Provisions
Va. Code Ann. §18.2-10 .............................................. 1a
Va. Code Ann. §18.2-31 .............................................. 1a
Va. Code Ann. §19.2-264.2 ......................................... 2a
Va. Code Ann. §19.2-264.4 ......................................... 2a
Va. Code Ann. §19.2-303 ............................................ 4a
Va. Code Ann. §53.1-40.01 ......................................... 5a
Va. Code Ann. §53.1-165.1 ......................................... 5a

 v
TABLE OF AUTHORITIES
CASES
Page(s)
Beard v. Banks, 542 U.S. 406 (2004) ............................... 45
County of Allegheny v. ACLU, 492 U.S. 573
(1999) ............................................................................ 40
Eddings v. Oklahoma, 455 U.S. 104 (1982) ....... 25, 26, 34
Graham v. Florida, 560 U.S. 48 (2010)............... 11, 23, 24
Hamilton v. Director of the Department of
Corrections, No. 131738, 2014 Va. LEXIS
201 (Va. June 6, 2014)................................................. 51
Harris v. Commonwealth, 688 S.E.2d 279 (Va.
2010) ............................................................................. 51
Jefferson v. Commonwealth, No. 2172-12-2, 2013
WL 5801746 (Va. Ct. App. Oct. 29, 2013) .................. 51
Jones v. Virginia, 136 S. Ct. 1358 (2016)........................ 14
Jones v. Commonwealth, 763 S.E.2d 823 (Va.
2014) ....................................................................... 14, 15
Jones v. Commonwealth, 795 S.E.2d 705 (Va.
2017) ........................................................... 14, 15, 49, 51
Mackey v. United States, 401 U.S. 667 (1971) ............... 39
Mejia-Velez v. United States, 320 F. Supp. 3d
496 (E.D.N.Y. 2018) ............................................. 21, 42
Miller v. Alabama, 567 U.S. 460 (2012) ................ passim
Montgomery v. Louisiana, 136 S. Ct. 718 (2016).... passim
Moore v. Hinkle, 527 S.E.2d 419 (Va. 2000) .................. 51
Muhammad v. State, 934 A.2d 1059 (Md. Ct.
Spec. App. 2007) ................................................. 5, 8, 10

 vi
TABLE OF AUTHORITIES—Continued
Page(s)
Muhammad v. Commonwealth, 619 S.E.2d 16
(Va. 2005) ....................................................................... 8
North Carolina v. Alford, 400 U.S. 25 (1970)................ 10
O’Dell v. Netherland, 521 U.S. 151 (1997) ..................... 45
Penry v. Lynaugh, 492 U.S. 302 (1989) ..... 28, 29, 35, 36, 38
Roper v. Simmons, 543 U.S. 551 (2005) .......... 11, 21, 22, 23
Schriro v. Summerlin, 542 U.S. 348 (2004) ....... 29, 36, 38
Seminole Tribe of Florida v. Florida, 517 U.S.
44 (1996) ................................................................. 33, 40
Shalala v. Illinois Council on Long Term
Care, Inc., 529 U.S. 1 (2000) ...................................... 40
State v. Malvo, No. 102675C, 2017 WL 3579711
(Md. Cir. Ct. June 15, 2017) ....................................... 10
Tate v. Showboat Marina Casino Partnership,
431 F.3d 580 (7th Cir. 2005) ...................................... 34
Teague v. Lane, 489 U.S. 288 (1989) ........ 16, 28, 39, 45, 53
Tyson v. Commonwealth, No. 140917, 2015 WL
10945037 (Va. Aug. 14, 2015) .................................... 51
White v. Commonwealth, No. 1998-96-2, 1997
WL 583578 (Va. Ct. App. Sept. 23, 1997) ................ 51
Woodson v. North Carolina, 428 U.S. 280
(1976) ...................................................................... 26, 34
DOCKETED CASES
Crawford v. Pearson, No. 15-6498 (4th Cir.) ................. 13
Jones v. Commonwealth, No. 131385 (Va.) ................... 14

 vii
TABLE OF AUTHORITIES—Continued
Page(s)
Landry v. Baskerville, No. 14-6631 (4th Cir.) ............... 13
Landry v. Baskerville, No. 3:13-cv-367 (E.D. Va.) ....... 50
Malvo v. Mathena, No. 2:13-cv-375 (E.D. Va.) ............. 15
Mejia-Velez v. United States, No. 1:13-cv-3372
(E.D.N.Y.) ............................................................. 42, 44
Miller v. Alabama, No. 10-9646 (U.S.)........................... 51
Montgomery v. Louisiana, No. 14-280 (U.S.) ............... 47
Ross v. Fleming, No. 6:13-cv-34 (W.D. Va.) .................. 13
State v. Muhammad, No. 102676C (Md. Cir. Ct.) ... 6, 7, 10
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. amend. VIII .................................................... 4
28 U.S.C.
§2244 ............................................................................. 53
§2254 ............................................................................. 15
2002 Va. Code Ann.
§8.01-654 ...................................................................... 15
§18.2-10 ................................................................ 8, 9, 48
§18.2-31 .................................................................... 8, 48
§19.2-264.2 ..................................................................... 9
§19.2-264.4 ................................................... 9, 14, 48, 51
§19.2-303 ...................................................................... 15
§53.1-40.01 ................................................................... 48
§53.1-165.1 ............................................................... 9, 48
2019 Va. Code Ann. §18.2-10 .............................................. 9
OTHER AUTHORITIES
S. Ct. R. 14 .................................................................... 50, 52

 viii
TABLE OF AUTHORITIES—Continued
Page(s)
White, Josh, A Killer, Coming of Age, Wash.
Post, Sept. 30, 2012, at A11.......................................... 7

1

This source is also available online as Lee Boyd Malvo, 10
Years After D.C. Area Sniper Shootings: ‘I Was a Monster,’ Wash.
Post (Sept. 29, 2012), https://tinyurl.com/okxwujk.

 IN THE

Supreme Court of the United States
No. 18-217
RANDALL MATHENA, WARDEN,
Petitioner,
v.
LEE BOYD MALVO,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

INTRODUCTION
Miller v. Alabama, 567 U.S. 460 (2012), “require[s]” sentencers to “take into account how children
are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison,”
before imposing life without parole on a juvenile. Id. at
480. That proposition by itself resolves this case. The
Warden concedes that, under Montgomery v. Louisiana, 136 S. Ct. 718 (2016), Miller’s rule is retroactive.
And he does not dispute that the judge and jury who
sentenced Lee Boyd Malvo never considered whether
his youth might have warranted a sentence less than
life without parole. Malvo is thus entitled to resentencing under Miller, as the court of appeals correctly held.

 2
The Warden’s contrary arguments cannot be reconciled with Miller. He claims that because Miller invalidated “mandatory” life-without-parole sentences for juveniles, it holds only that sentencers cannot be barred
from considering youth when imposing life without parole. As long as a sentencer could theoretically consider
youth, he contends, it does not matter under Miller
whether the sentencer actually does so. Miller itself refutes that claim, explaining that “[o]ur decision” “mandates” that sentencers “consider[] an offender’s youth
and attendant characteristics” before imposing life without parole. 567 U.S. at 483; see also id. at 480.
The Warden’s contentions also disregard Miller’s
core rationale. Miller’s invalidation of “mandatory” lifewithout-parole sentences is premised on the Court’s
recognition that the qualities of youth—immaturity,
vulnerability, and changeability—must be taken into
account when sentencing a juvenile offender because
those qualities will typically make life without parole an
excessive punishment for a juvenile. 567 U.S. at 477480. “Mandatory” schemes, in which sentencers have no
alternative but to sentence all juvenile offenders to life
without parole, necessarily violate Miller because they
“mak[e] youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence” and thereby “pose too great a risk of disproportionate punishment.” Id. at 479. But the same risk exists whenever a
sentencer imposes life without parole on a juvenile
without considering whether youth might warrant a
lesser sentence. Such a life-without-parole sentence
violates Miller whether it is “mandatory” or not.
Montgomery confirms that understanding of Miller. Both the majority and the dissent in Montgomery
understood Miller as having “held,” at a minimum,
“that a juvenile … could not be sentenced to life in pris-

 3
on without parole absent consideration of the juvenile’s
special circumstances” and how they counsel in favor of
a lesser sentence. 136 S. Ct. at 725; see id. at 743 & n.1
(Scalia, J., dissenting).
The reasoning necessary to the Montgomery majority’s retroactivity holding further confirms that understanding of Miller. To determine whether Miller’s
rule was retroactive, the Court first had to decide
whether Miller announced a “substantive” rule—that
is, a rule barring imposition of a particular punishment
on a particular group of defendants, regardless of the
procedure used. Montgomery, 136 S. Ct. at 732. The
Court concluded that while Miller had “a procedural
component,” in that it “requires a sentencer to consider
a juvenile offender’s youth,” that requirement gave effect to a substantive Eighth Amendment rule: Lifewithout-parole sentences are disproportionate for juveniles whose crimes reflect “the transient immaturity
of youth” rather than “permanent incorrigibility.” Id.
at 734-735. Montgomery’s articulation of Miller’s rule
did not expand the rule—that was the dissent’s position, which the Court rejected. And Montgomery’s
holding that Miller’s rule is substantive, and not merely procedural, makes clear that Miller cannot be cabined to “mandatory” sentencing schemes.
The Warden simply ignores all of Montgomery’s
reasoning. And his reading of Miller as invalidating
only the use of a mandatory sentencing procedure
would have required Montgomery to come out the other way. The Warden’s insistence that he is not asking
the Court to overrule any part of Miller or Montgomery thus rings hollow. Limiting Miller and Montgomery to their facts, severed from their rationales, as he
urges, would have the same effect as overruling them—
at least as far as the Virginia inmates now serving life

 4
without parole for juvenile offenses are concerned.
Under the Warden’s view, Virginia judges will never
have to consider a juvenile offender’s youth before imposing life without parole, and the prisoners already
serving that sentence will die in prison, with no consideration of their youth at the time of their crimes and no
chance to show that they have changed.
There is no doubt that Malvo committed heinous
crimes. Seventeen years later, the shootings John Muhammad directed and Malvo helped carry out continue
to evoke terror and trauma in the victims and their
families and in those who could have been victims—
including anyone in the Washington, D.C. area during
the fall of 2002. Whether life without parole is the appropriate punishment for Malvo—taking into account
his youth at the time of the crimes, his vulnerability to
Muhammad, whom he thought of as his father, and his
capacity for change—is potentially a thorny question.
But it is not the question presented here. Resolving
this case requires nothing more than straightforward
application of this Court’s precedent establishing that
“imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not
children.” Miller, 567 U.S. at 474. The Court should
affirm for all the reasons given in this brief—and at the
very least it should affirm, as the court of appeals observed, to maintain the integrity of its precedent and
thus “sustain the law.” Pet. App. 28a.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Eighth Amendment to the Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, or cruel and unusual punishments
inflicted.” U.S. Const. amend. VIII.

 5
Relevant portions of the Virginia statutes governing sentences for capital murder at the time of Malvo’s
offenses are reproduced in the addendum.
STATEMENT
A. Factual Background
In September and October 2002, forty-one-year-old
John Allen Muhammad and respondent Lee Boyd Malvo, who was then seventeen, committed a series of
shootings—twelve of them fatal—primarily in the
greater Washington, D.C. area. Pet. App. 4a. Muhammad and Malvo terrorized the area for several
weeks as they shot people engaged in ordinary activities, apparently at random, while concealed in a car
some distance away. Id. at 4a-6a. The shootings, which
came to be known as the “D.C. sniper” attacks, ended
when Muhammad and Malvo were apprehended on October 24, 2002. Id. at 6a.
Testimony at Malvo’s and Muhammad’s subsequent
trials shed light on Muhammad’s motives for the shooting spree, which was triggered at least in part by Muhammad’s anger that his ex-wife had won custody of
their children. Muhammad v. State, 934 A.2d 1059,
1077 (Md. Ct. Spec. App. 2007). Extensive evidence also illuminated how Muhammad developed a perverse
“surrogate father” relationship with Malvo and led him
to participate in the crimes. Pet. App. 8a.
Malvo was born in Jamaica to a mother who neglected and routinely beat him. His relationship with
his own father effectively ended when he was five. Pet.
App. 8a. After that, Malvo’s mother continually moved
him from place to place, largely abandoning him when
he was nine to a series of relatives, acquaintances, and
strangers in Jamaica and Antigua, and then leaving

 6
him, at age fourteen, essentially on his own. See CAJA1243-1254.
When Malvo was fifteen, he met Muhammad—an
American citizen who had absconded to Antigua with
his three children after losing custody of them. Pet.
App. 8a. Having never established a consistent relationship with any parental figure, Malvo eagerly seized
on Muhammad as a substitute father. CAJA1259, 1494.
Muhammad soon began introducing Malvo as his son
and treating him as the “big brother” of Muhammad’s
children. Trial Tr. 64, State v. Muhammad, No. 102676
(Md. Cir. Ct. May 24, 2006) (Dkt. 575).
In 2001, Muhammad brought Malvo and his children to the United States. CAJA738. After Muhammad’s children were taken from him and returned to his
ex-wife, he focused his energies on “training” Malvo.
CAJA1280-1281, 1628. He drastically restricted Malvo’s diet. CAJA807, 899; Trial Tr. 37, Muhammad, No.
102676 (Md. Cir. Ct. May 23, 2006) (Dkt. 574) (“Muhammad May 23 Tr.”). He inundated Malvo with lessons in the tenets of the Nation of Islam and his own
violent worldview. CAJA1266-1270. And he trained
Malvo—who had never shot a gun before—in military
maneuvers and tactics, including daily shooting lessons
that lasted for hours. CAJA1281-1282, 1285-1286, 1296.
Malvo followed instructions, wanting to please the man
he now thought of as his father. CAJA1293, 1652-1653.
In early 2002, Muhammad and Malvo set out across
the country on a “mission” to get Muhammad’s children
back from his ex-wife, who had moved to the Washington, D.C. suburbs. Muhammad May 23 Tr. 45-46. During their travels, Muhammad revealed to Malvo that
the mission included a plan to commit random shootings
in the D.C. area until the government gave them $10

 7
million, which would be used to create a utopian society
for black children. Id. at 50-54; CAJA1707. Distressed,
Malvo attempted suicide. Muhammad May 23 Tr. 5455. Ultimately, however, he acquiesced in Muhammad’s plan. Id. at 55.
After Muhammad and Malvo were apprehended,
Malvo sought to protect his “father” by telling law enforcement that he, Malvo, had pulled the trigger in all
the D.C.-area shootings. Muhammad May 23 Tr. 204205. He refused to answer to “Lee Boyd Malvo,” insisting he be called “John Lee Muhammad.” CAJA1189.
Initially, he would not cooperate with his attorneys in
preparing a defense, refusing to say anything disloyal
to Muhammad. Muhammad May 23 Tr. 205-206. He
relinquished the fantasy of Muhammad as a loving father only gradually, over many months. Id. at 206-207.
Malvo later explained that at first, he was numb to
the horror of his crimes, and that it was not until much
later that he was able to feel true remorse. Muhammad May 23 Tr. 206-207. When his numbness wore off,
Malvo felt overwhelming guilt and shame; he was
haunted by his victims. See White, A Killer, Coming of
Age, Wash. Post, Sept. 30, 2012, at A1. In 2006, Malvo
wrote to the district attorney in Maryland and volunteered to testify against Muhammad, although he received no reduction in his own sentences for doing so.
Muhammad May 23 Tr. 207-213. He testified for two
days, laying out his and Muhammad’s crimes in detail.
Muhammad, 934 A.2d at 1136. Since then, Malvo has
repeatedly expressed remorse for his crimes. E.g.,
White, supra; Muhammad May 23 Tr. 212-213.
Malvo is now thirty-four. He is serving his sentences at Red Onion State Prison, Virginia’s super-

 8
maximum security facility, where he has spent years in
solitary confinement.
B. Malvo’s Convictions And Sentences
Malvo and Muhammad were tried separately for
shootings in Virginia and Maryland. Muhammad was
convicted of capital murder in Virginia and sentenced
to death. Muhammad v. Commonwealth, 619 S.E.2d
16, 30 (Va. 2005). He was executed in 2009.2
In 2003, Malvo was charged in Fairfax County,
Virginia, with capital murder in the commission of an
act of terrorism, see Va. Code Ann. §18.2-31(13),3 and
capital murder of more than one person within a threeyear period, see id. §18.2-31(8). Pet. App. 7a. The prosecutor sought the death penalty. Id. Malvo pleaded
not guilty, and the case was transferred to the Circuit
Court for the City of Chesapeake. Id.
At his trial, Malvo acknowledged his participation in
the shootings, but raised an insanity defense, contending
that at the time of the crimes he was in a dissociative
state resulting from Muhammad’s indoctrination and
control. Pet. App. 7a-8a. The jury rejected the insanity
defense and convicted him of the charges. Id. at 8a.
At the time of Malvo’s crimes, Virginia law “authorized” two punishments for defendants age sixteen
and over convicted of capital murder: “death … or imprisonment for life.” Va. Code Ann. §18.2-10(a) (punishments for Class 1 felonies); see id. §18.2-31 (classify2

Muhammad was also convicted in Maryland of six counts of
first-degree murder. Muhammad v. State, 934 A.2d 1059, 1065
(Md. Ct. Spec. App. 2007).
3

All citations to the Virginia Code are to the 2002 edition unless otherwise noted.

 9
ing capital murder as Class 1 felony).4 A defendant
convicted of capital murder was entitled to a sentencing
hearing before a jury, “which shall be limited to a determination as to whether the defendant shall be sentenced to death or life imprisonment.” Id. §19.2264.4(A). If the jury did not recommend death, “the defendant shall be sentenced to imprisonment for life.”
Id.; see also id. §19.2-264.4(E) (if jury cannot agree on
penalty, “the court shall … impose a sentence of imprisonment for life”). Because Virginia had previously
abolished parole for felony offenses, see id. §53.1-165.1,
“life imprisonment” meant life without parole, and the
defendant was entitled to a jury instruction to that effect, see id. §19.2-264.4(A).
At Malvo’s sentencing hearing, the jury was instructed that the death penalty could be imposed only if
it found one of two statutory aggravating circumstances—future dangerousness and vileness, id. §19.2264.2—and recommended death. JA65-66, 67. The jury
was also instructed that if it concluded the death penalty was not justified, it must “fix the punishment of the
defendant at … imprisonment for life,” and that “‘imprisonment for life’ means imprisonment without possibility of parole.” JA66, 68. The jury found both aggravating factors, but did not recommend a death sentence, instead “fix[ing] [Malvo’s] punishment at imprisonment for life” for each capital count. JA71.
On March 10, 2004, the court held a very brief hearing to impose sentence. JA74-82. No one suggested at
any point that Malvo could receive a sentence less than
life without parole. See id. Malvo’s counsel asked only
4

Section 18.2-10(a) was later amended to permit death only
for those eighteen or older and not intellectually disabled. See Va.
Code Ann. §18.2-10(a) (2019).

 10
that Malvo be placed in a facility where he could receive mental-health treatment. JA78-80. The prosecutor reiterated the jury’s verdict and asked the court “to
impose the sentence,” which the court did, sentencing
Malvo to two terms of life imprisonment. JA80-81.
Malvo subsequently entered an Alford plea, see
North Carolina v. Alford, 400 U.S. 25 (1970), in separate proceedings in Spotsylvania County, Virginia,
pleading guilty to one count of capital murder and one
count of attempted capital murder. Pet. App. 9a-10a.
He was sentenced to two additional terms of life without parole on those counts. Id.5
C. This Court’s Juvenile Sentencing Decisions
In the years after Malvo’s sentencing, this Court
issued a series of decisions holding that the Eighth
Amendment restricts States’ ability to impose the most
severe sentences on juvenile offenders.
In 2005, in Roper v. Simmons, 543 U.S. 551, the
Court held that juveniles cannot constitutionally be
sentenced to death. The Court noted “[t]hree general
differences between juveniles … and adults”: first, a
“‘lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in
adults’”; second, “juveniles are more vulnerable or susceptible to negative influences and outside pressures”;
and, third, “the character of a juvenile is not as well
5

Malvo also pleaded guilty to six counts of first-degree murder in Maryland and received six life-without-parole sentences.
Muhammad, 934 A.2d at 1076. He raised a Miller challenge to
those sentences in state post-conviction proceedings in the Maryland trial court, which denied relief. State v. Malvo, No. 102675C,
2017 WL 3579711, at *13 (Md. Cir. Ct. June 15, 2017). Malvo’s appeal of that judgment is pending.

 11
formed as that of an adult.” Id. at 569-570. While the
Court recognized that juveniles can commit heinous
crimes, “[t]he reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character.”
Id. at 570.
In 2010, in Graham v. Florida, 560 U.S. 48, the
Court held that juveniles cannot constitutionally be
sentenced to life without parole for non-homicide offenses. The Court reiterated that “[j]uveniles are more
capable of change than are adults, and their actions are
less likely to be evidence of ‘irretrievably depraved
character’ than are the actions of adults.” Id. at 68; see
also id. at 91-92 (Roberts, C.J., concurring in the judgment) (noting “the general presumption of diminished
culpability” for “juvenile offenders”).
In 2012, Miller v. Alabama, 567 U.S. 460, held that
the Eighth Amendment also restricts States’ ability to
impose life without parole on juvenile homicide offenders. The Court drew on “two strands of precedent.”
Id. at 470. First, it relied on cases like Roper and Graham establishing that “children are constitutionally different from adults for purposes of sentencing” and that
the “distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes.” Id. at 471-472. Second, it relied on cases
requiring that sentencers consider mitigating factors—
including youth—before imposing the death penalty.
Id. at 475-476. Together, those decisions led the Court
to conclude that sentencers must “tak[e] account of an
offender’s age and the wealth of characteristics and circumstances attendant to it” before imposing life without parole on juveniles. Id. at 476.

 12
The Court therefore held that “the Eighth
Amendment forbids a sentencing scheme,” like the ones
before it, “that mandates life in prison without possibility of parole for juvenile offenders.” Miller, 567 U.S. at
479. “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence,
such a scheme poses too great a risk of disproportionate
punishment.” Id. The Court stated that although it
was not banning life-without-parole sentences for juveniles outright, “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will
be uncommon.” Id. Accordingly, “we require [sentencers] to take into account how children are different,
and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Id. at 480.
In 2016, in Montgomery v. Louisiana, 136 S. Ct.
718, the Court held that Miller’s rule applies retroactively to cases on collateral review. Under this Court’s
retroactivity precedent, a new rule is retroactive if, as
relevant here, it is a “substantive” constitutional rule
that “‘prohibit[s] a certain category of punishment for a
class of defendants because of their status or offense.’”
Id. at 729. While procedural rules “are designed to enhance the accuracy of a conviction or sentence by regulating ‘the manner of determining the defendant’s culpability,’” substantive rules “set forth categorical constitutional guarantees that place certain criminal laws
and punishments altogether beyond the State’s power
to impose.” Id. at 729-730 (emphasis omitted).
Montgomery concluded that Miller announced a
substantive, and not merely a procedural, rule: Miller
“rendered life without parole an unconstitutional penalty for ‘a class of defendants because of their status’—
that is, juvenile offenders whose crimes reflect the
transient immaturity of youth.” 136 S. Ct. at 734. Mil-

 13
ler did have “a procedural component,” which “require[s] a sentencer to consider a juvenile offender’s
youth and attendant characteristics before determining
that life without parole is a proportionate sentence.”
Id. But that procedure “gives effect to Miller’s substantive holding that life without parole is an excessive
sentence for children whose crimes reflect transient
immaturity.” Id. at 735.
D. Malvo’s Federal Habeas Proceedings
In 2013, Malvo filed two federal habeas petitions
challenging his Chesapeake and Spotsylvania lifewithout-parole sentences and seeking resentencing under Miller. The district court dismissed both petitions
on the ground that Miller was not retroactive. CAJA126-129. While Malvo’s appeal was pending, this
Court decided Montgomery, and the court of appeals
remanded the case to the district court. Pet. App. 11a.
In the immediate wake of Montgomery, Virginia
repeatedly conceded in federal habeas proceedings
brought by Virginia prisoners that Miller did apply to
its capital-murder sentencing scheme. It also conceded
that, under Miller and Montgomery, a sentencing court
must determine whether a juvenile defendant “falls into the protected class of youthful offenders ‘whose
crimes reflect the transient immaturity of youth,’ or
‘those rare children whose crimes reflect irreparable
corruption.’”6

6

Appellee Br. 15-16, Landry v. Baskerville, No. 14-6631 (4th
Cir. Apr. 18, 2016) (Dkt. 26); see also, e.g., Appellee Br. 3, Crawford v. Pearson, No. 15-6498 (4th Cir. Mar. 14, 2016) (Dkt. 19) (arguing for remand so district court could determine “whether the
Virginia trial court complied with Miller and found that Crawford
was ‘incorrigible’”); Warden Reply to Order 4-5, Ross v. Fleming,

 14
In a case before the Virginia Supreme Court, Virginia likewise agreed that the defendant was entitled to
resentencing to ensure that his juvenile life-withoutparole sentence “complies with Miller.” Commonwealth Br. 5, Jones v. Commonwealth, No. 131385 (Va.
June 16, 2016). The Virginia Supreme Court, however,
rejected that concession and held that Miller did not
apply in Virginia because Virginia’s capital-murder
sentencing scheme was not “mandatory.” Jones v.
Commonwealth, 795 S.E.2d 705, 713 (Va. 2017) (“Jones
II”); see id. at 723 n.27 (acknowledging Virginia’s concession).7
Jones II read Miller to hold only that a sentencer
“‘must have the opportunity to consider mitigating circumstances’” before sentencing a juvenile to life without parole. 795 S.E.2d at 708 (emphasis in Jones II).
Accordingly, it viewed Miller as applicable only to
“mandatory” sentencing schemes that “‘preclude’ a sentencer from taking account of an offender’s age.” Id.
(emphasis in Jones II). Although Virginia law provided
that in capital-murder cases where the jury does not
recommend death, “the defendant shall be sentenced to
imprisonment for life,” Va. Code Ann. §19.2-264.4(A),
the Virginia Supreme Court reasoned that the trial
court had the authority to “suspend” such a life senNo. 6:13-cv-34 (W.D. Va. Apr. 26, 2016) (Dkt. 30) (noting that record did not “establish that the trial court considered the required
‘distinctive attributes of youth’” or made a “finding of ‘irretrievable depravity’”).
7

The Virginia Supreme Court had previously so held in Jones
v. Commonwealth, 763 S.E.2d 823, 826 (Va. 2014) (“Jones I”). This
Court granted certiorari in that case, vacated, and remanded for
further consideration in light of Montgomery. 136 S. Ct. 1358
(2016). In Jones II, the Virginia Supreme Court concluded that
Montgomery did not affect its earlier holding. 795 S.E.2d at 707.

 15
tence under a general statute providing that “‘[a]fter
conviction, … the court may suspend imposition of sentence or suspend the sentence in whole or part.’” Jones
I, 763 S.E.2d at 824-825 (quoting Va. Code Ann. §19.2303). Because the trial court was not “precluded” from
considering youth in resolving a request for suspension,
in the Virginia Supreme Court’s view, life without parole was not the “mandatory” sentence for capital murder, and Miller did not apply. Jones II, 795 S.E.2d at
711-713.
On remand to the district court in this case, the
Warden initially did not raise that argument, instead
contending that Malvo’s sentencing hearing satisfied
Miller. Br. 4-9, Malvo v. Mathena, No. 2:13-cv-375
(E.D. Va. Aug. 15, 2016) (Dkt. 44). After Jones II,
however, the Warden filed a “notice” contending that
Miller was inapplicable because Virginia’s sentencing
scheme was not “mandatory.” Warden’s Notice 1, id.
(E.D. Va. Apr. 3, 2017) (Dkt. 54).
The district court rejected that analysis of Miller.8
The court found it unnecessary to address whether
Virginia’s scheme was best labeled “mandatory” or
“discretionary.” Pet. App. 42a. Rather, it held that
Miller identified an Eighth Amendment right that is
8

As a threshold matter, the Warden conceded, and the district court held, that Malvo was not required to exhaust state
remedies. Pet. App. 40a. Jones II had held that a prisoner could
not pursue a Miller claim through a motion to vacate his sentence
in state court, 795 S.E.2d at 719-721, and the time for filing a state
habeas petition expired long before Miller, Pet. App. 40a (citing
Va. Code Ann. §8.01-654(A)(2)). As a result, there was “no state
corrective process available” to Malvo. Id.; see 28 U.S.C.
§2254(b)(1)(B). In this Court, the Warden again expressly concedes that point, and concedes that as a result, the federal courts
properly reviewed Malvo’s Miller claim de novo. Pet. Br. 13 n.2.

 16
“not possessed solely” by juveniles sentenced under
“mandatory” schemes. Id. Miller “recognized that juveniles are constitutionally different from adults and
that they are, therefore, entitled to certain considerations”—specifically, a hearing where their youth is considered to determine whether life without parole is a
proportionate sentence—in “all situations” before “being sentenced to die in prison.” Id. And Montgomery
confirmed that holding: It made clear that Miller articulated a substantive rule under which life without
parole is a disproportionate sentence for juvenile offenders whose crimes reflect “transient immaturity”
rather than “irreparable corruption,” and that the hearing Miller requires is designed to implement that rule.
Id. at 42a-43a. Because Malvo never received such a
hearing in connection with any of his life-withoutparole sentences, the district court held that Malvo was
entitled to be resentenced and granted relief. Id. at
47a-51a, 62a.9
On appeal, the Warden renewed his argument that
Virginia’s capital-murder sentencing scheme was not
“mandatory” and that Miller was thus inapplicable in
Virginia. He also contended that the district court had
violated the retroactivity principles set out in Teague v.
Lane, 489 U.S. 288 (1989), by relying on Montgomery’s
articulation of Miller’s holding. In an opinion by Judge
Niemeyer, a unanimous Fourth Circuit panel rejected
those arguments.

9

The district court also rejected the Warden’s arguments
that Malvo’s sentencing hearing, given the nature of his crimes,
satisfied Miller, Pet. App. 47a-51a, and that Malvo’s plea agreement waived his right to challenge his Spotsylvania sentences, id.
at 58a, 61a.

 17
The court of appeals acknowledged but did not resolve Malvo’s contention that his sentences were “mandatory” even as the Warden used the term. Malvo argued that when he was sentenced, Virginia law mandated death or life without parole for capital murder,
and trial courts did not believe they could suspend such
a sentence. Pet. App. 18a-19a. While finding it “far
from clear that anyone involved in Malvo’s prosecutions
actually understood at the time that Virginia trial
courts retained their ordinary suspension authority following a conviction for capital murder,” the court declined to decide that question. Id. at 19a.
Instead, the court of appeals held that the mere existence of such suspension authority did not make Miller inapplicable. As the court explained, Miller held
“not only [that] ‘a judge or jury [must] have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles,’” but
also that “the sentencer must actually ‘take into account how children are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.’” Pet. App. 14a (quoting Miller, 567
U.S. at 480, 489). While Miller “reserv[ed] the possibility that such a severe sentence could be appropriately
imposed on ‘the rare juvenile offender whose crime reflects irreparable corruption,’” it required sentencers to
consider youth before making that judgment. Id. at
14a-15a (quoting Miller, 567 U.S. at 479-480).
The court of appeals observed that Montgomery
“confirmed” that reading of Miller: “[I]mposing a lifewithout-parole sentence on a juvenile homicide offender pursuant to a mandatory scheme necessarily violates
the Eighth Amendment as construed in Miller,” because the sentencer necessarily takes no account of the
defendant’s youth. Pet. App. 20a. But “a [sentencer]

 18
also violates Miller’s rule any time it imposes a discretionary life-without-parole sentence on a juvenile homicide offender without first concluding that the offender’s ‘crimes reflect permanent incorrigibility.’” Id.
(quoting Montgomery, 136 S. Ct. at 734). The court of
appeals rejected the Warden’s argument “that Montgomery’s articulation of the Miller rule was mere dictum,” since that articulation “was the basis for [Montgomery’s] holding that Miller announced a substantive
rule that applies retroactively.” Id. And it held that
“because Montgomery explicitly articulated the rule in
Miller that it was retroactively applying, the district
court could not have violated Teague in applying that
rule.” Id.10 Accordingly, the court of appeals affirmed
the district court.
SUMMARY OF ARGUMENT
Miller v. Alabama “require[s] [sentencers] to take
into account how children are different, and how those
differences counsel against irrevocably sentencing
them to a lifetime in prison,” before imposing life without parole on a juvenile. 567 U.S. 460, 480 (2012). The
Warden concedes that Miller’s requirements apply retroactively. And it is undisputed that at Malvo’s sen10

The court of appeals likewise rejected the Warden’s argument that Malvo’s Chesapeake sentencing satisfied Miller, explaining that “the jury was not allowed to give a sentence less
than life without parole” and that, in fact, the jury “considered
Malvo’s mitigation evidence and found that he deserved the lighter of the two sentences that it could give.” Pet. App. 22a. In addition, the court rejected the argument that, by pleading guilty in
Spotsylvania County, Malvo had “implicitly waived his right to
argue, based on intervening Supreme Court holdings, that his sentences were ones that the State could not constitutionally impose
on him.” Id. at 27a. The Warden has not challenged either of
these holdings in this Court.

 19
tencing over eight years earlier, the jury could not, and
the judge did not, consider whether Malvo’s youth
might warrant a sentence less than life without parole.
Malvo is accordingly entitled to resentencing.
The Warden contends that Miller applies only to
“mandatory” schemes that bar the sentencer from imposing any sentence less than life without parole, and is
inapplicable to any other type of sentencing scheme.
That is wrong. Miller requires not only that sentencers
be permitted to consider youth, but also that they actually do so, to determine whether life without parole is a
proportionate sentence. Indeed, Miller says exactly
that: “Our decision” “mandates … that a sentencer …
consider[] a defendant’s youth and attendant characteristics” before imposing life without parole. 567 U.S. at
483; see also Montgomery v. Louisiana, 136 S. Ct. 718,
725 (2016) (“Miller … held that a juvenile convicted of a
homicide offense could not be sentenced to life in prison
without parole absent consideration of the juvenile’s
special circumstances.”); id. at 743 & n.1 (Scalia, J., dissenting) (agreeing that Miller requires consideration of
youth).
The Warden’s narrow reading of Miller is also refuted by the reasoning necessary to Miller’s conclusion
that “mandatory” schemes are unconstitutional. That
conclusion rested principally on the Court’s recognition
that juveniles’ lesser culpability and greater capacity
for change will typically make life without parole an excessive punishment for them, even for heinous crimes.
Miller requires sentencers to take the qualities of
youth into account because failing to do so “poses too
great a risk of disproportionate punishment.” 567 U.S.
at 479. “Mandatory” schemes violate the Eighth
Amendment because they guarantee that youth will not
be taken into account and thus necessarily create the

 20
“risk of disproportionate punishment” with which Miller is concerned. But any sentencing proceeding in
which youth is not taken into account—“mandatory” or
not—poses precisely the same risk.
Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
which held that Miller’s rule is retroactive, confirms
that reading of Miller. Miller’s requirement that sentencers consider youth, Montgomery explained, arises
from and gives effect to an underlying Eighth Amendment rule: Life without parole is an excessive sentence
for the majority of juveniles whose crimes stem from
“transient immaturity.” Id. at 734. Miller accordingly
articulated a “substantive” rule applicable to cases on
collateral review under this Court’s retroactivity precedent. Id. That conclusion, too, reaffirms that Miller’s
rule does not turn on whether a sentencing scheme is
“mandatory” or “discretionary.” Such substantive limits on States’ authority to impose a particular punishment on a particular class of defendants, by definition,
apply regardless of the procedure the State uses to impose the punishment. Montgomery, 136 S. Ct. at 730.
Put differently, if Miller had done nothing more
than invalidate “mandatory” sentencing schemes, without tying that result to a constitutional restriction on
States’ ability to sentence juveniles to life without parole, it would not have articulated a “substantive” rule
for retroactivity purposes, and Montgomery would
have come out the other way. While the Warden disputes this point, he never acknowledges Montgomery’s
reasoning or explains how, on his view, Miller’s rule is
“substantive” as this Court’s retroactivity jurisprudence uses the term. He is simply attempting to substitute new, illogical reasoning for Montgomery’s actual
ratio decidendi. But stare decisis bars wholesale evisceration of the reasoning of this Court’s precedent just

 21
as it bars outright overruling of that precedent, absent
special circumstances that the Warden has made no effort to show exist here.
For its part, the United States admits that Miller
requires consideration of youth and that Montgomery
made clear Miller extends beyond “mandatory” sentencing schemes. Indeed, after Montgomery the United States advocated precisely the conclusion the court
of appeals reached here. It successfully argued that a
juvenile offender serving life without parole must be
resentenced—whether the sentence was “mandatory”
or “discretionary”—if the sentencer did not determine
that his crimes arose from irreparable corruption, rather than transient immaturity. See Mejia-Velez v.
United States, 320 F. Supp. 3d 496, 505 (E.D.N.Y.
2018). Having changed its mind, the United States now
invites this Court to “clarify” that it did not mean what
it said in Miller and Montgomery, but intended to employ an altogether different rationale. What the United
States seeks is not a clarification, but an overruling,
and like the Warden, it offers no explanation as to why
the Court should ignore stare decisis principles here.
In any event, the United States’ proposed new rationale makes little sense. The United States argues
that “discretionary” sentencing schemes do not give
rise to the risk of disproportionate sentences Miller
addressed. But a “discretionary” sentence like that
here, where youth was not considered at all, indisputably does give rise to that risk. The United States also
contends—reprising an argument this Court already
declined to adopt in Montgomery—that Miller’s invalidation of “mandatory” sentencing schemes was a “substantive” rule because it expanded the range of sentencing outcomes. But the United States never explains why such a rule is “substantive” under this

 22
Court’s retroactivity decisions, and in fact its position
cannot be squared with those decisions. This Court
should reject the United States’ attempt to rewrite established retroactivity doctrine.
If one abides by this Court’s precedent, as the court
of appeals did, this case is straightforward. Miller requires sentencers, before imposing life without parole
on a juvenile, to consider whether the lesser culpability
and greater changeability associated with youth warrant a lesser sentence. Because Malvo’s sentencers did
not undertake that required consideration of his youth,
he is entitled to resentencing.
ARGUMENT
I.

MILLER REQUIRES ACTUAL CONSIDERATION OF YOUTH
WHENEVER A JUVENILE IS SENTENCED TO LIFE WITHOUT PAROLE

Malvo’s sentences violate Miller for a simple reason: Miller requires consideration of youth before a
juvenile may be sentenced to life without parole, and
that did not happen in Malvo’s case. As Miller explained: “[W]e require [a sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison.” 567 U.S. at 480. That requirement
flowed directly from the two key strands of precedent
that informed the Court’s decision in Miller, and it is
restated in express terms in Montgomery. Moreover,
as Miller and Montgomery make clear, it is a requirement that must be satisfied whenever a juvenile faces
life without parole, whether the sentencing scheme is
“mandatory” or “discretionary.”

 23
A. Each Of Miller’s Two Strands Of Precedent
Supported Its Holding That Youth Must Be
Considered
Miller “implicate[d] two strands of precedent.” 567
U.S. at 470. The first strand “adopted categorical bans
on sentencing practices based on mismatches between
the culpability of a class of offenders”—such as juveniles—“and the severity of a penalty.” Id. The second
strand “prohibited mandatory imposition of capital punishment, requiring that sentencing authorities consider
the characteristics of a defendant and the details of his
offense before sentencing him to death.” Id. Each
strand supported Miller’s holding that sentencers must
consider a juvenile defendant’s youth and its attendant
characteristics to determine whether life without parole is a constitutionally disproportionate sentence.
The key decisions in the first strand of precedent
were Roper v. Simmons, 543 U.S. 551 (2005), which
held that juveniles cannot constitutionally be sentenced
to death, and Graham v. Florida, 560 U.S. 48 (2010),
which held that juveniles cannot constitutionally be
sentenced to life without parole for non-homicide
crimes. Miller, 567 U.S. at 470-475. As Miller explained, Roper and Graham “establish[ed] that children
are constitutionally different from adults for purposes
of sentencing”: Their “diminished culpability and
greater prospects for reform” make them “‘less deserving of the most severe punishments.’” Id. at 471.
In particular, Roper relied on “[t]hree general differences between juveniles … and adults” that “render
suspect any conclusion that a juvenile falls among the
worst offenders” for whom the death penalty is proportionate. 543 U.S. at 570; see supra pp.10-11. Juveniles’
immaturity “means ‘their irresponsible conduct is not

 24
as morally reprehensible as that of an adult.’” Roper,
543 U.S. at 570. Their vulnerability and lesser control
over their environment “mean juveniles have a greater
claim than adults to be forgiven for failing to escape
negative influences.” Id. And “[t]he reality that juveniles still struggle to define their identity means it is
less supportable to conclude that even a heinous crime
committed by a juvenile is evidence of irretrievably depraved character.” Id. In short, while juveniles can
commit “brutal crimes,” those crimes are likely to reflect “unfortunate yet transient immaturity,” rather
than “irreparable corruption.” Id. at 572-579.
Graham relied on those same differences between
juveniles and adults to hold that juveniles cannot be
sentenced to life without parole for non-homicide offenses. 560 U.S. at 68-69; see also id. at 91-92 (Roberts,
C.J., concurring in the judgment) (noting “the general
presumption of diminished culpability” for “juvenile offenders”); supra p.11. The Court observed that, like
the death penalty, a life-without-parole sentence “forswears altogether the rehabilitative ideal,” making “an
irrevocable judgment about [the defendant’s] value and
place in society”—a “judgment [that] is not appropriate
in light of a juvenile nonhomicide offender’s capacity for
change and limited moral culpability.” Graham, 560
U.S. at 74. Accordingly, although States were “not required to guarantee eventual freedom” to juvenile nonhomicide offenders—some of whom may “turn out to be
irredeemable”—the Court concluded that the Eighth
Amendment “prohibit[s] States from making the judgment at the outset that those offenders never will be fit
to reenter society.” Id. at 75; see also id. (juvenile nonhomicide offenders must have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation”).

 25
From this strand of precedent, Miller drew the
conclusion that “youth matters in determining the appropriateness of a lifetime of incarceration without the
possibility of parole.” 567 U.S. at 473. While “Graham’s flat ban on life without parole applied only to
nonhomicide crimes,” “none of what it said about children—about their distinctive (and transitory) mental
traits and environmental vulnerabilities—is crimespecific.” Id. “Graham’s reasoning,” rather, “implicates any life-without-parole sentence imposed on a juvenile.” Id. Even when a juvenile has committed murder, “the characteristics of youth, and the way they
weaken rationales for punishment, can render a lifewithout-parole sentence disproportionate.” Id. Accordingly, Miller concluded that, under Graham and
Roper, the “imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though
they were not children.” Id. at 474. Rather, sentencers
must take account of the characteristics of youth to “assess[] whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender.” Id.
Miller’s second strand of precedent required “individualized sentencing” in the death-penalty context—
meaning that before imposing the death penalty, a sentencer must consider all mitigating factors advanced by
the defendant, including the “‘mitigating qualities of
youth.’” 567 U.S. at 475-476. Miller found Eddings v.
Oklahoma, 455 U.S. 104 (1982), “especially on point.”
567 U.S. at 476. In Eddings, the court that had sentenced the sixteen-year-old defendant to death had
considered his age as a mitigating factor, but refused to
consider “evidence of a turbulent family history, of
beatings by a harsh father, and of severe emotional disturbance.” 455 U.S. at 115. That evidence, Eddings
explained, was “particularly relevant” because of his

 26
youth—“a time and condition of life when a person may
be most susceptible to influence and to psychological
damage.” Id. Because courts “must consider all relevant mitigating evidence,” the Court in Eddings vacated the death sentence. Id. at 117.
Miller also relied on decisions invalidating “mandatory” schemes making death the only available punishment for a particular crime—precisely because such
schemes prevent the individualized consideration of
mitigating factors that the Eighth Amendment requires. Miller, 567 U.S. at 475; see, e.g., Woodson v.
North Carolina, 428 U.S. 280, 304 (1976) (plurality
opinion) (“[C]onsideration of the character and record
of the individual offender and the circumstances of the
particular offense [is] a constitutionally indispensable
part of the process of inflicting the penalty of death.”).
The individualized-sentencing decisions, Miller observed, “requir[e]” sentencers to “consider the characteristics of a defendant and the details of his offense”—
including youth and its accompanying vulnerabilities—
before sentencing him to death, the harshest possible
sentence. 567 U.S. at 470; see id. at 475-476. By analogy, the Court concluded, sentencers must consider
youth and its attendant characteristics before sentencing a juvenile to life without parole, the harshest possible sentence for juveniles. Id. at 476-478.
Together, the two lines of precedent considered in
Miller led the Court to hold that sentencers must take
account of juveniles’ “diminished culpability and
heightened capacity for change” to ensure that juvenile
offenders do not suffer a disproportionate punishment.
567 U.S. at 479. As the court of appeals observed, it
follows that a “mandatory” life-without-parole sentence
imposed on a juvenile necessarily violates Miller, be-

 27
cause a sentencer who has no choice but to impose life
without parole cannot consider whether the characteristics of youth make that sentence disproportionate.
But any life-without-parole sentence imposed on a juvenile—whether “mandatory” or “discretionary”—
likewise violates Miller and creates an intolerable risk
of disproportionate punishment if the sentencer fails to
“take into account how children are different, and how
those differences counsel against … a lifetime in prison.” 567 U.S. at 480; see Pet. App. 14a, 19a-21a.
B. Montgomery Confirms That Miller Requires
Actual Consideration Of Youth, Not Merely
“Discretion” To Consider It
Miller is clear that a juvenile may not be sentenced
to life without parole absent actual consideration of
youth and that unexercised “discretion” to consider
youth is insufficient. But Montgomery puts the point
beyond debate.
Both the majority and the dissent in Montgomery
agreed that, at the very least, Miller requires sentencers to consider youth before imposing life without
parole on a juvenile. The opinion for the Court began
by recognizing that Miller “held” that a juvenile “could
not be sentenced to life in prison without parole absent
consideration of the juvenile’s special circumstances.”
Montgomery, 136 S. Ct. at 725; see also id. at 726 (“Miller required that sentencing courts consider a child’s
‘diminished culpability and heightened capacity for
change’ before condemning him or her to die in prison.”).
Likewise, the principal dissent viewed Miller as
“‘mandat[ing] that a sentencer … consider[] a defendant’s youth and attendant characteristics’” before im-

 28
posing life without parole. Montgomery, 136 S. Ct. at
743 (Scalia, J., dissenting); see id. at 743 n.1 (observing
that “the majority’s initial description of Miller is the
same as our own”). Neither the majority nor the dissent ever suggested what the Warden now argues—
that Miller requires only that a sentencer have discretion to consider youth and that it does not matter
whether the sentencer actually does so. The Montgomery Court’s unanimity on that point forecloses the
Warden’s argument.
The reasoning necessary to Montgomery’s holding
that Miller is retroactive makes it even plainer that
Miller cannot be satisfied by mere “discretion” to consider youth. The question in Montgomery was whether
Miller announced a “substantive” rule of constitutional
law retroactive to cases on collateral review under
Teague v. Lane, 489 U.S. 288 (1989), and its progeny.
In light of the interest in finality of criminal convictions, new constitutional rules generally do not apply
retroactively. Id. at 310 (plurality opinion). However,
Teague identified two “exceptions”: rules that “place[]
‘certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority
to proscribe’” and “watershed rules of criminal procedure.” Id. at 311.
As the Court later explained, the first Teague “exception” protects “substantive categorical guarantees
accorded by the Constitution,” such as the Eighth
Amendment’s guarantee against cruel and unusual punishment, which applies “regardless of the procedures
followed” to impose that punishment.
Penry v.
Lynaugh, 492 U.S. 302, 329 (1989). It thus encompasses
any rule that, “as a substantive matter,” “prohibit[s] a
certain category of punishment for a class of defendants

 29
because of their status or offense.” Id. at 329-330; see
also Montgomery, 136 S. Ct. at 729-730.
Such substantive rules apply retroactively because
failure to do so necessarily creates “‘a significant risk’”
that the defendant “faces a punishment that the law
cannot impose upon him.” Schriro v. Summerlin, 542
U.S. 348, 352 (2004); accord Montgomery, 136 S. Ct. at
729-730. By contrast, “[n]ew rules of procedure”—
which “regulate only the manner of determining the
defendant’s culpability”—almost never apply retroactively. Schriro, 542 U.S. at 352-353. Such procedural
rules “merely raise the possibility” that a defendant
sentenced through “the invalidated procedure” might
have otherwise received a different sentence, as opposed to the risk that a defendant is serving a sentence
the State cannot constitutionally impose on him at all,
regardless of the procedure used. Id.; see Montgomery,
136 S. Ct. at 729-730.
The question in Montgomery, therefore, was
whether Miller articulated a substantive rule. The
Court held that it did. “The ‘foundation stone’ for Miller’s analysis,” Montgomery observed, “was this
Court’s line of precedent holding certain punishments
disproportionate when applied to juveniles.” 136 S. Ct.
at 732 (quoting Miller, 567 U.S. at 471 n.4). “Protection
against disproportionate punishment is the central substantive guarantee of the Eighth Amendment and goes
far beyond the manner of determining a defendant’s
sentence.” Id. at 732-733.
Quoting directly from Miller’s explication of its
own holding, Montgomery explained that “Miller requires that before sentencing a juvenile to life without
parole, the sentencing judge take into account ‘how
children are different, and how those differences coun-

 30
sel against irrevocably sentencing them to a lifetime in
prison.’” 136 S. Ct. at 733 (quoting Miller, 567 U.S. at
480). That procedural component of Miller’s holding in
turn implements a “substantive holding” that life without parole “violates the Eighth Amendment for a child
whose crime reflects ‘unfortunate yet transient immaturity,’” as opposed to “‘the rare juvenile offender
whose crime reflects irreparable corruption.’” Id. at
734 (quoting Miller, 567 U.S. at 479-480). Miller requires sentencers to consider youth, Montgomery explained, precisely to determine whether a particular
juvenile defendant falls into the group of juveniles for
whom life without parole would be disproportionate
punishment. Id. at 735. Failing to apply Miller’s rule
retroactively would thus create “‘a significant risk that’
… the vast majority of juvenile offenders[] ‘face[] a
punishment that the law cannot impose upon [them].’”
Id. at 734.
Accordingly, as the court of appeals recognized,
mere “discretion” to consider how a defendant’s youth
might warrant a lesser sentence cannot satisfy either
the procedural or the substantive component of Miller.
Miller mandates actual consideration of juveniles’ lesser culpability and greater capacity for change to effectuate the Eighth Amendment’s prohibition on sentencing to life without parole a juvenile whose crime reflects transient immaturity. Unexercised “discretion”
to consider youth contravenes Miller’s express requirement that youth be considered. And it does nothing to protect juveniles against receiving a punishment
that is disproportionate for the vast majority of them.

 31
II. THE WARDEN’S READING OF MILLER IS WRONG
A. The Warden’s Reading Of Miller Is Irreconcilable With Miller’s Language And Reasoning
The Warden reads Miller differently. He notes
that Miller considered sentencing schemes that allowed
no sentence less than life without parole and held that
“mandatory life-without-parole sentences for juveniles
violate the Eighth Amendment.” Pet. Br. 20 (quoting
Miller, 567 U.S. at 470 (Warden’s emphasis)). From
that, he concludes that Miller is satisfied if the sentencer could have considered the defendant’s youth as a
basis for a lesser sentence, whether or not the sentencer actually did so. That cramped interpretation of
Miller—which relies primarily on counting the number
of times the word “mandatory” appears in the decision,
Pet. Br. 19-21—ignores this Court’s own repeated
statements as to what its holding requires. And it ignores the ratio decidendi of the Court’s decision, which
necessarily defines the scope of the holding. Both aspects of Miller refute the Warden’s reading.
As an initial matter, the Warden never defines
“mandatory” or “discretionary” sentencing schemes—
even though he claims that Miller turns entirely on the
dichotomy between them. He thereby obscures the
very aspects of sentencing that matter for Miller’s
purposes. A “mandatory” scheme—by which the Warden appears to mean a scheme where the sentencer has
no authority to set a sentence less than life without parole under any circumstances—can readily be identified
as unlawful under Miller. On the other hand, the “discretionary” category—which apparently includes everything not “mandatory”—encompasses any number of
sentencing schemes. Under a “discretionary” scheme
that permits sentences less than life without parole,

 32
sentencers might be required to consider youth, permitted to consider youth, or even prohibited from considering youth. And when imposing a “discretionary”
life-without-parole sentence, the sentencing court
might or might not take the defendant’s youth into account. The Warden’s distinction between “mandatory”
and “discretionary” sentences thus bears little or no
connection to Miller’s central concern—the risk that
juveniles will receive excessive life-without-parole sentences. That risk can be ameliorated only by actual
consideration of youth and its characteristics.
The Warden contends (at 20-21) that “[b]y its own
terms, Miller’s holding is limited to mandatory lifewithout-parole sentences,” and that “every sentence
that is even arguably a holding (or a summary of the
Court’s holding) specifically references the mandatory
nature of the challenged life-without-parole sentences.”
That is incorrect. As noted, Miller states several times
that its holding requires sentencers to consider the
characteristics of youth before imposing life without
parole on a juvenile. The concluding sentence of the
paragraph summarizing Miller’s “hold[ing]” says:
“[W]e require [a sentencer] to take into account how
children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” 567 U.S. at 479-480 (emphasis added).11 In the
11

The Warden addresses this sentence only in a footnote (at
21 n.6), where he quotes it selectively. He ignores the clear import
of the words “we require”—which signal that what follows is a
holding, not mere dicta. And he wrongly claims that “the Court
acknowledged Miller presented no occasion” to resolve the issue.
In fact, the Court said the opposite. The question Miller did not
reach was whether to recognize a categorical bar on life without
parole for juveniles. The question it did reach and resolve was
whether sentencers must consider youth. As the Court explained:
“[W]e do not consider … [whether] the Eighth Amendment re-

 33
footnote to that sentence, the Court repeats that “[o]ur
holding requires factfinders to attend to [the] circumstances” specific to each juvenile defendant and the extent to which youth might mitigate the crime. Id. at
480 n.8 (emphasis added). In rebutting the States’ arguments, the Court explains: “Our decision … mandates” that a sentencer “consider[] an offender’s youth
and attendant characteristics [] before imposing” life
without parole. Id. at 483 (emphasis added). And when
discussing the constitutional flaw in the specific sentences before it, the Court notes that “a sentencer
needed to examine all [the] circumstances” relevant to
youth “before concluding that life without any possibility of parole was the appropriate penalty.” Id. at 479
(emphasis added). The Warden simply ignores all of
these statements expressly addressing the scope of
Miller’s holding—and contradicting his view of Miller’s
scope.
The Warden likewise ignores virtually all of Miller’s reasoning. He apparently takes the view that the
only parts of this Court’s decisions with precedential
effect are sentences that contain the word “holding”
(or, in this case, “mandatory”), and that the remaining
sentences can be ignored. Leaving aside that Miller
expressly stated that its “hold[ing]” requires actual
consideration of youth, 567 U.S. at 479-480, that is not
how this Court’s (or any court’s) decisions should be
read. “When an opinion issues for the Court, it is not
only the result but also those portions of the opinion
necessary to that result by which we are bound.” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996).
quires a categorical bar on life without parole for juveniles,” and
“we do not foreclose” the imposition of that sentence, but “we require [sentencers] to take into account how children are different.”
Miller, 567 U.S. at 479-480.

 34
Nor is the force of this Court’s holdings confined to the
precise facts of the case that gave rise to them. “The
holding of a case includes, besides the facts and the outcome, the reasoning essential to that outcome.” Tate v.
Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th
Cir. 2005).
As discussed above, see supra Part I.A, Miller
identified the two strands of precedent that were necessary to its decision: precedent establishing that the
Eighth Amendment bars imposition of certain sentences on juveniles because of their lesser culpability, and
precedent requiring individualized sentencing in the
death-penalty context. The Warden all but ignores the
first strand, and discusses only the second. Pet Br. 2527.
But, even taken in isolation from the first strand,
Miller’s second strand of precedent does not support
the Warden’s position. While it includes decisions
striking down “mandatory” capital punishment, the
principle it stands for is broader—namely, that defendants must be able to advance, and sentencers must take
into account, all mitigating circumstances. “Mandatory” imposition of the death penalty is unconstitutional
because it precludes sentencers from taking those circumstances into account. But, as Eddings—the decision Miller relied on most heavily—makes clear, mitigating circumstances, including youth, “‘must … be duly considered’” even where, as in Eddings, the sentencing scheme does not make death a “mandatory” punishment. 455 U.S. at 116. “The Eighth Amendment requires consideration of the character and record of the
individual offender and the circumstances of the particular offense as a constitutionally indispensable part of
the process of inflicting the penalty of death.” Woodson, 428 U.S. at 304 (plurality opinion) (citation omit-

 35
ted). As Miller held, it likewise requires consideration
of youth as a constitutionally indispensable part of the
process of imposing life without parole. 567 U.S. at 480.
In any event, as its reliance on Graham and Roper
suggests, Miller did not merely extend the individualized-sentencing requirement to life without parole for
juveniles. The Court’s concern was not only that juvenile defendants should receive individualized consideration that takes mitigating factors into account, so that
punishment can be tailored to the offender and the offense. Its concern was much more specific: “Because
juveniles have diminished culpability and greater prospects for reform, … ‘they are less deserving of the
most severe punishments.’” Miller, 567 U.S. at 471.
Indeed, those “characteristics of youth” can make life
without parole an unconstitutionally “disproportionate”
punishment that the State has no power to impose. Id.
at 473. Miller requires sentencers “to take into account
how children are different” so that they will not impose
life without parole on a “‘juvenile offender whose crime
reflects unfortunate yet transient immaturity’”—an offender for whom that punishment would violate the
Eighth Amendment. Id. at 479. That fundamental
Eighth Amendment restriction, and the required consideration of youth that implements it, are applicable
whenever a juvenile faces a life-without-parole sentence.
B. If The Warden’s Reading Of Miller Were Correct, Montgomery Could Not Have Held Miller Retroactive
The Warden’s reading of Miller is also irreconcilable with Montgomery. Indeed, if the Warden were correct, Montgomery could not have reached the result it
did.

 36
Montgomery held that Miller “announced a substantive rule of constitutional law”: “It rendered life
without parole an unconstitutional penalty for ‘a class
of defendants because of their status’—that is, juvenile
offenders whose crimes reflect the transient immaturity of youth.” 136 S. Ct. at 734. By definition, a “substantive” rule is one that invalidates a particular punishment for a particular defendant “regardless of the
procedures followed.” Penry, 492 U.S. at 329; see
Montgomery, 136 S. Ct. at 730 (even “flawless sentencing procedures” cannot “legitimate a punishment” from
which “the Constitution immunizes the defendant”).
Miller’s substantive rule thus cannot turn on the
procedural distinction between “mandatory” and “discretionary” sentencing schemes. Life without parole
imposed pursuant to a “mandatory” sentencing scheme
is the same punishment as life without parole imposed
pursuant to a “discretionary” sentencing scheme. In
either case, the defendant is imprisoned until death
with no hope of release. And in either case, the sentence is subject to the same substantive constitutional
limitation: It cannot be imposed on juveniles whose
crimes reflect transient immaturity. Montgomery, 136
S. Ct. at 734.
Put differently, if Miller had done nothing more
than invalidate “mandatory” sentencing schemes,
Montgomery would have come out the other way. A
mere requirement that sentencers have the “discretion” to impose a lesser sentence—untethered to any
constitutional restriction on life without parole for juveniles—would implicate only “the manner of determining the defendant’s culpability,” Schriro, 542 U.S.
at 353, and would thus be a procedural, not a substan-

 37
tive, rule.12 But that is not what Miller or Montgomery
held. Rather, as the court of appeals explained, “Montgomery stated clearly that, under Miller, the Eighth
Amendment bars life-without-parole sentences for all
but those rare juvenile offenders whose crimes reflect
permanent incorrigibility.” Pet. App. 20a. This view of
Miller’s scope “was the basis for [Montgomery’s] holding that Miller announced a substantive rule that applies retroactively.” Id. And to give effect to that rule,
the sentencer must consider a defendant’s youth in all
cases, whether the sentencing scheme is “mandatory”
or not. Pet. App. 20a-21a; Montgomery, 136 S. Ct. at
735.
The Warden contends that “Miller was about
rights,” while “Montgomery was about retroactivity,”
and that Montgomery thus has nothing to say about the
scope of Miller’s holding. Pet. Br. 18; see id. at 12-23.
As demonstrated above, even the most cursory reading
of Montgomery refutes that argument. Supra pp.27-28.
But the Warden’s contention also reflects a profound
misunderstanding of this Court’s retroactivity doctrine.
As this Court has repeatedly explained, it is not possi12

The Warden suggests (at 26-27 n.9) that a rule that did
nothing more than invalidate “mandatory” sentencing schemes
would still be “substantive,” but cites no authority for that proposition. While he claims that Woodson—which was decided over a
decade before Teague—would have been retroactive under
Teague, he cannot point to any case so holding, nor does he attempt to fit Woodson within the definition of a substantive rule set
out in Teague and its progeny.
Instead, he argues that
“[r]equiring a particular outcome for all cases is not a ‘procedural’
rule.” Id. But that misstates the inquiry. The question is not
whether the scheme being invalidated could be characterized as
having “substantive” effects (in the broad sense of the word), but
whether the new constitutional rule bars the State from imposing
a particular punishment on a particular group of defendants.

 38
ble to determine whether a particular constitutional
rule is retroactive without first determining the nature
of the right that rule vindicates. Only “substantive”
and “watershed procedural” rules are retroactive. See,
e.g., Montgomery, 136 S. Ct. at 730-732; Schriro, 542
U.S. at 353; Penry, 492 U.S. at 530. The initial question
the Court had to resolve in Montgomery, therefore,
was: What was the rule of Miller? The answer to that
question, in turn, determined whether Miller’s rule was
substantive and thus retroactive. See Montgomery, 136
S. Ct. at 732 (framing question as whether Miller’s rule
“prohibit[s] ‘a certain category of punishment for a
class of defendants because of their status or offense’”).
There is accordingly nothing remotely improper about
looking to Montgomery to understand what Miller
held: That was precisely the question Montgomery addressed.13
The Warden never engages this critical point at all.
Indeed, he never even acknowledges that the question
in Montgomery was whether Miller articulated a “substantive” rule. Instead, he offers (at 12-18) a lengthy
disquisition on the general rule of non-retroactivity,
none of which is remotely relevant here. As Montgomery explains, the holding in Miller falls outside that
13

The Warden observes (at 16-17) that “[t]his Court typically
addresses rights and retroactivity in separate cases,” and that it
has at times declined to address a habeas petitioner’s constitutional claim on the merits if the constitutional rule sought would not
be retroactive in that case. But neither point suggests that the
nature of a right and its retroactivity are severable inquiries. The
Court need not decide whether the Constitution actually guarantees a particular right to determine whether that right, if recognized, would apply retroactively. But it does need to determine
the nature and scope of the putative constitutional right to determine whether that right would be “substantive” or “watershed”
and thus retroactive. See, e.g., Penry, 492 U.S. at 330.

 39
general rule, because failing to apply it retroactively
would create “‘a significant risk’ that … the vast majority of juvenile offenders” serving life without parole are
serving a sentence “‘that the law cannot impose upon’”
them. 136 S. Ct. at 734.
The Warden attempts to bolster his position by
quoting Justice Harlan: “The relevant frame of reference … is not the purpose of the new rule whose benefit
the [defendant] seeks, but instead the purposes for
which the writ of habeas corpus is made available.”
Pet. Br. 17 (quoting Teague, 489 U.S. at 306 (quoting
Mackey v. United States, 401 U.S. 667, 682 (1971))).
But he fails to understand the quotation. To be sure, in
framing a federal rule of retroactivity, the purposes of
the writ are paramount. That is why new rules are
generally not retroactive to cases on collateral review.
But that is also why substantive rules are retroactive.
A core purpose of the writ of habeas corpus is to vindicate the rights of persons imprisoned pursuant to a
conviction or sentence that the Constitution bars the
State from imposing. See Montgomery, 136 S. Ct. at
730 (citing cases). As Justice Harlan himself explained:
“There is little societal interest in permitting the criminal process to rest at a point where it ought properly
never to repose.” Mackey, 401 U.S. at 693.
Lacking any response to Montgomery’s core reasoning, the Warden asks the Court simply to ignore the
many “statements [in Montgomery] about the premises, justifications, and nature of the Miller rule, some of
which could be read to sweep well beyond the narrow
issue before the Court in Montgomery.” Pet. Br. 32.
But the “narrow issue before the Court in Montgomery” was whether Miller is retroactive. And Montgomery’s “statements about the premises, justifications, and nature of the Miller rule” were necessary to

 40
its holding that the Miller rule is retroactive. Those
statements thus have precedential force, and may not
be disregarded. See Seminole Tribe, 517 U.S. at 67
(“[W]hen an opinion issues for this Court, it is not only
the result but also those portions of the opinion necessary to that result by which [the Court is] bound.”);
County of Allegheny v. ACLU, 492 U.S. 573, 668 (1999)
(Kennedy, J., concurring and dissenting) (“As a general
rule, the principle of stare decisis directs us to adhere
not only to the holdings of our prior cases, but also to
their explications of the governing rules of law.”). Divorcing the results in Miller and Montgomery from the
reasoning necessary to those results, as the Warden
advocates, would eviscerate both decisions. This Court
“does not normally overturn, or so dramatically limit,
earlier authority sub silentio,” Shalala v. Illinois
Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000),
and it should not do so here.
C. The Court Should Reject The United States’
Invitation To Repudiate Montgomery’s Reasoning
In contrast to the Warden, the United States concedes that Miller “‘mandates … that a sentencer’” must
“‘consider[] an offender’s youth and attendant characteristics … before imposing” life without parole. U.S.
Br. 15 (quoting Miller, 567 U.S. at 483); see id. at 17
(acknowledging Miller’s “‘require[ment]’” that a sentencer “‘take into account how children are different,
and how those differences counsel against’” life without
parole). And it concedes (at 19) that “Montgomery did
not consistently tether its discussion to mandatory sentences.” These (accurate) descriptions refute any ar-

 41
gument that Miller is confined to “mandatory” sentencing schemes.14
Indeed, as the United States acknowledges, that is
precisely how the government once viewed Miller and
Montgomery. Observing that “[l]itigants and lower
courts cannot lightly disregard any statements in an
opinion of this Court,” the United States admits that
“in light of Montgomery’s language, the government
and lower courts have generally … viewed Montgomery’s reasoning as implicating the validity of discretionary sentences as well as mandatory ones.” U.S. Br. 21.
The United States had little choice but to make
those concessions, since it has itself advocated precisely
the conclusion the court of appeals reached here. In a
case in which the juvenile defendant had been sentenced to life without parole under the Sentencing
Guidelines, the United States took the position that the
defendant was entitled to resentencing, regardless of
whether his sentence was “mandatory” or “discretionary.” It contended: “Miller and Montgomery stand for
14

The amici States likewise concede (at 14) that Miller requires “individualized consideration of a juvenile defendant’s ‘age
and age-related characteristics’” to ensure “that a life-withoutparole sentence is not unconstitutionally disproportionate.” Their
argument is that Miller and Montgomery “do not require a recitation of [the] magic words” “permanent incorrigibility.” Id. That is
true. See Montgomery, 136 S. Ct. at 735. But the court of appeals
said nothing to the contrary; it explained, as Montgomery did, that
sentencers must determine whether a juvenile’s crimes reflect
“permanent incorrigibility” or “transient immaturity,” but did not
prescribe any specific form of words sentencers must use. Pet.
App. 20a (quoting Montgomery, 136 S. Ct. at 734). In any event,
this case does not require the Court to address the metes and
bounds of “permanent incorrigibility” or the findings required to
support such a determination, since Malvo’s sentencers did not
consider youth at all.

 42
the proposition that a court must affirmatively consider
the sentencing factors set forth in Miller prior to imposing a sentence of life imprisonment as well as consider whether a juvenile’s homicide crime reflects the
‘transient immaturity of youth’ … or ‘irreparable corruption[.]’” U.S. Letter Br. 2, Mejia-Velez v. United
States, No. 1:13-cv-3372 (E.D.N.Y. July 24, 2017) (Dkt.
31) (“Mejia-Velez Br.”). The United States went on to
say that “the government does not view” “the extent of
the Court’s discretion … to impose a sentence other
than life imprisonment” “as dispositive.” Id. Rather,
“the dispositive issue is whether this Court considered
[the Miller] factors in imposing sentence.” Id. at 3.
The district court agreed, concluding that Miller applied notwithstanding the court’s discretion under the
Sentencing Guidelines to grant a downward departure
based on age. Mejia-Velez v. United States, 320 F.
Supp. 3d 496, 505 (E.D.N.Y. 2018).
Having changed its mind as to what Miller requires, the United States asks this Court (at 22) to
“clarify the limits of Miller and Montgomery.” By that,
the United States means that the Court should disregard Miller’s requirements and repudiate Montgomery’s actual reasoning, substituting new, narrower reasoning that the United States now prefers. Neither of
the United States’ arguments for taking that unprecedented step has merit.
1. The United States claims (at 23-28) that
“Montgomery’s core rationale does not cover discretionary sentences.” It notes that “Montgomery concluded that ‘Miller is retroactive because it necessarily
carries significant risk that a defendant—here, the
vast majority of juvenile offenders—faces a punishment that the law cannot impose upon him.’” U.S. Br.
23 (quoting Montgomery, 136 S. Ct. at 736). But it then

 43
argues, wrongly, that this core “reasoning is consistent
only with the retroactive invalidation of a mandatory
sentence, which carries such a risk, as opposed to a discretionary sentence, which does not.” Id. That argument contradicts Montgomery’s clear explanation of
why the failure to apply Miller retroactively would
create a “significant risk.” It also makes no sense.
Contrary to the United States’ representation (at
24), Montgomery’s discussion of the “‘significant risk
that a defendant … faces a punishment the law cannot
impose upon him’” was not “tied to the mandatory aspect of the sentences at issue.” The United States
quotes (at 24) what it incorrectly describes as “both of
Montgomery’s references to … risk” and points out
that the word “mandatory” appears in both. That ignores Montgomery’s central discussion of the issue,
which explains that the “significant risk” arises from
Miller’s “substantive rule” that “juvenile offenders
whose crimes reflect the transient immaturity of
youth” may not be sentenced to life without parole. 136
S. Ct. at 734; see also id. at 736. By definition, a “substantive rule” is applicable regardless of the procedure
employed. See id. at 730.
Moreover, the risk that a juvenile sentenced before
Miller to life without parole is serving an unconstitutional sentence does not turn on whether the sentence
is “mandatory” or “discretionary.” That risk exists
whenever a sentencer fails to consider youth. And
while some “discretionary” schemes might ensure that
sentencers consider a juvenile offender’s youth and attendant characteristics and how they militate against
life without parole, there is no logical or empirical basis
for assuming that all of them do—as Virginia’s sentencing scheme vividly illustrates. See infra Part III. As
the United States previously recognized, “the disposi-

 44
tive issue” is not whether the sentence was “mandatory” or “discretionary,” but “whether [the sentencer]
considered [the Miller] factors in imposing sentence.”
Mejia-Velez Br. 3.
The United States does not engage this point at all.
Instead, it makes the unsupported claim that “[i]f not
barred by law from doing so, [a sentencer] would ordinarily take into account age-related factors in assessing
the propriety” of life without parole for a juvenile. U.S.
Br. 26. As is undisputed, that did not happen here.
Nor is it reasonable to assume that, before Miller—and
in many cases even before Graham or Roper—courts
“ordinarily t[ook] into account” what Miller held years
later: that juvenile homicide offenders’ lesser culpability and greater ability to change “counsel against irrevocably sentencing them to a lifetime in prison.” Miller,
567 U.S. at 480.
Relatedly, the United States contends (at 27) that
because a defendant sentenced under a “discretionary”
scheme is less likely to have received an unconstitutional sentence than one sentenced under a “mandatory” scheme, the risk of such a sentence is insufficient to
justify retroactive application of Miller to “discretionary” schemes.
That argument not only rests on pure speculation,
but also muddles this Court’s retroactivity jurisprudence by confusing substance and procedure. The
United States suggests that retroactivity is determined
by asking how likely it is that a formerly used procedure—here, “mandatory” or “discretionary” sentencing—produced an incorrect result. That is wrong, and
adopting that method would create enormous confusion, given how difficult it can be to assess a procedure’s effect on the accuracy of the convictions or sen-

 45
tences it produces. That is the very reason this Court
has held that procedural rules—unless they are “watershed” rules “implicit in the concept of ordered liberty”—are not retroactive even when they significantly
increase the likelihood of a correct result. Teague, 489
U.S. at 311 (plurality opinion) (internal quotation marks
omitted). In fact, that is the teaching of decisions such
as Beard v. Banks, 542 U.S. 406 (2004), and O’Dell v.
Netherland, 521 U.S. 151 (1997), which the United
States cites (at 27) in support of its argument, and
which Montgomery expressly distinguished, 136 S. Ct.
at 735-736.
This Court has already held that Miller’s rule is a
substantive rule, which bars the State from imposing
life without parole on juveniles “whose crimes reflect
the transient immaturity of youth” no matter what procedure is used. Montgomery, 136 S. Ct. at 734. That
substantive rule is effectuated by a hearing at which
youth and its attendant characteristics, as set out in
Miller, are considered in order to determine whether
life without parole is a constitutional punishment in
that case. Id. at 735. Where, as here, Miller’s substantive rule was not recognized and no measures were
taken to effectuate it, failure to apply Miller retroactively necessarily creates an unacceptable risk that
prisoners are serving sentences the State cannot constitutionally impose on them—whether the sentencing
scheme was “mandatory” or “discretionary.”
The United States’ argument also violates basic
principles of fairness and equity that underpin this
Court’s conclusion that rules should be retroactive for
everyone or not at all. See Teague, 489 U.S. at 303-305.
A juvenile offender whose crimes reflect transient immaturity, and who was sentenced to life without parole
under a “discretionary” scheme, is receiving precisely

 46
the same punishment as a juvenile offender whose
crimes reflect transient immaturity, and who was sentenced to life without parole under a “mandatory”
scheme. And that punishment offends the Eighth
Amendment equally in both cases. Nothing in this
Court’s decisions supports the United States’ notion
that only one of the two defendants is entitled to relief
from a punishment that the State had no power to impose.
2. Alternatively, the United States asks (at 28)
that this Court “clarify[] that Montgomery’s holding
rests on the narrower rationale set forth in the government’s brief in Montgomery”—that is, that Miller
was retroactive because it “expanded the substantive
range of possible sentencing outcomes.” The Court
should reject that proposal—just as it did in Montgomery, where the United States made the same argument.
First of all, the United States is not really asking
the Court to “clarify” anything. Rather, it seeks to
have the Court jettison the entire ratio decidendi of
Montgomery and replace it with different and incompatible reasoning. The United States cites no precedent for this Court’s taking such a step, and fails even
to acknowledge the serious stare decisis concerns it
would raise. Cf. supra p.40.
Moreover, the United States’ theory that any rule
“expand[ing] … sentencing outcomes” is “substantive”
cannot be reconciled with settled retroactivity principles, as demonstrated by the lack of any authority supporting it. The definition of “substantive” the United
States proposes is different from—and potentially far
more capacious than—the definition used in Teague and
its progeny. As the United States conceded in Montgomery, this Court’s substantive rules have all “nar-

 47
rowed, rather than expanded, the range of permissible
outcomes of the criminal process.” U.S. Br. 16, Montgomery, No. 14-280 (U.S. July 29, 2015).
The United States argues (at 29) that “expanding”
the set of possible outcomes is simply the “flip side” of a
traditional substantive rule. But it does not explain
why the “flip side” of a substantive rule is necessarily
also a substantive rule under Teague and its progeny.
And it makes no attempt to tie its new definition to the
reason new substantive Eighth Amendment rules apply retroactively: namely, that such rules bar the State
from imposing a particular sentence on a certain class
of defendants, meaning that defendants who fall into
that class and are serving that sentence are by definition facing cruel and unusual punishment. By contrast,
a rule that merely expands the range of possible sentences, without restricting the State’s ability to impose
any particular sentence on any particular class of defendants, does not pose that same risk and thus is not
“substantive” under any definition this Court has used
to date.
This Court should not abandon wellestablished retroactivity principles for the United
States’ novel approach.
III. MALVO’S SENTENCING DID NOT SATISFY MILLER
No fair reading of Miller permits the Warden to
evade the requirement that sentencers “take into account how children are different, and how those differences counsel against irrevocably sentencing them to a
lifetime in prison,” before imposing life without parole
on a juvenile. 567 U.S. at 480. The court of appeals
found, and the Warden does not contest, that the judge
and jury who sentenced Malvo in 2004 never undertook
that required consideration of his youth. Pet. App. 22a.
That should be the end of the matter.

 48
As discussed above, see supra pp.8-9, at the time of
Malvo’s crimes, Virginia law authorized only two punishments for capital murder: “death … or imprisonment for life.” Va. Code Ann. §§18.2-10(a), 18.2-31
(2002). The sentencing proceeding before the jury was
“limited to” determining which of those two punishments was appropriate. Id. §19.2-264.4(A). The law
also mandated that where, as here, the jury did not
recommend the death penalty, “the defendant shall be
sentenced to imprisonment for life.” Id. Because Virginia had abolished parole for felony offenses, that
meant life without parole. Id. §53.1-165.1.15
The jury was instructed that if it concluded the
death penalty was not justified, it must sentence Malvo
to life without parole, and it did so for each of the two
capital-murder counts on which Malvo was convicted.
JA67-68, 71. Although the jury found two statutory
aggravating circumstances that made Malvo deatheligible—future dangerousness and vileness—it chose
not to recommend a death sentence. As the Warden
does not dispute, the jury was therefore required by
Virginia law to recommend life without parole. Pet.
App. 22a. While the jury heard substantial mitigating
evidence regarding Malvo’s age, vulnerability, and
domination by Muhammad, it could give effect to that
evidence only by choosing a life-without-parole sentence in lieu of death—which it did. The jury had no

15

Virginia law contains a “geriatric release” provision, under
which a prisoner who has reached age 60 and served at least 10
years may “petition the Parole Board for conditional release.” Va.
Code Ann. §53.1-40.01. But prisoners convicted of capital murder,
which is a Class 1 felony, are not eligible for geriatric release. Id.;
see id. §18.2-31. Amicus Maryland Crime Victims Resource Center’s contrary claim (at, e.g., 5-6, 30, 39, 45-46) is incorrect.

 49
ability to consider or recommend a sentence less than
life without parole.
It is likewise undisputed that the trial judge never
considered “Malvo’s ‘youth and attendant circumstances’” to determine whether a sentence less than life
without parole might be warranted. Pet. App. 22a. To
the contrary, at Malvo’s brief sentencing hearing before
the judge, his age was never mentioned, much less considered as a basis for a lower sentence. JA74-82. Acknowledging that there were not “a lot of alternatives,”
Malvo’s counsel presented no evidence and asked only
that Malvo be placed in a facility where he could receive mental-health treatment. JA79-80. The prosecutor also put on no evidence and simply “ask[ed] the
Court … to impose the sentence” that the jury had
fixed. JA81. The judge then sentenced Malvo to two
terms of life without parole. Id.
Although the Virginia Supreme Court later held
that trial courts may suspend life-without-parole sentences for capital murder, Jones v. Virginia, 795 S.E.2d
705, 713 (Va. 2017) (“Jones II”), at no time during Malvo’s trial and sentencing did anyone—the court, the
prosecutor, or Malvo’s counsel—suggest that any sentence less than life without parole was possible. The
Virginia Supreme Court is, of course, the final arbiter
of Virginia law, and Malvo does not challenge its holding here. As the court of appeals noted, however, there
is no indication that anyone involved in Malvo’s sentencing was aware in 2004 that the trial court had the
power to suspend life-without-parole sentences for capital murder. Pet. App. 19a. It is thus not surprising
that the sentencing court undertook no consideration of

 50
Malvo’s youth or whether it might warrant a lesser
sentence.16
Indeed, Malvo’s sentencing was typical for juveniles convicted of capital murder in Virginia before Miller. In none of those cases was there any meaningful
consideration of whether juveniles’ lesser culpability
and greater capacity for change warranted a sentence
less than life without parole. The possibility of a suspended sentence was almost never even mentioned. In
one of the rare cases where defense counsel raised it,
the prosecutor responded that the court had no discretion to impose anything less than a life-without-parole
sentence, and the court in fact imposed that sentence.17
The Warden has identified no case prior to Miller, and
counsel is aware of none, in which a Virginia court sen-

16

Of course, the Spotsylvania County court that took Malvo’s
guilty plea, in which he accepted life-without-parole sentences to
avoid a potential death sentence, also never considered whether
his youth warranted a sentence less than life without parole. Pet.
App. 9a-10a, 25a-27a. As noted, see supra p.18 n.10, the court of
appeals rejected the Warden’s argument that the plea agreement
waived Malvo’s right to challenge those life-without-parole sentences under Miller, and the Warden has not renewed that argument in this Court. While certain amici attempt to revive the
waiver argument the Warden has abandoned, see Mitchell Br. 513, it is not within the scope of the question presented, and this
Court should not address it. Sup. Ct. R. 14.1(a).
17

See State Sentencing Tr. 41-43, Landry v. Baskerville, No.
3:13-cv-367 (E.D. Va. Aug. 26, 2013) (Dkt. 11-1) (defense counsel
conceded that sentence was “mandated” to be “either death or life
imprisonment” but pleaded with the court to show mercy by suspending sentence); id. at 46 (prosecutor responded: “This defendant committed capital murder…. That offense, by statute in this
Commonwealth, has two punishments: Life imprisonment or the
death penalty.”).

 51
tenced a juvenile convicted of capital murder to anything less than life without parole.18
Given that backdrop, it is understandable that Miller itself identified Virginia as one of twenty-eight
states that “ma[d]e a life-without-parole term mandatory for some juveniles convicted of murder in adult
court.” Miller, 567 U.S. at 482 & n.9 (citing Alabama’s
brief); Alabama Br. 17-19, 21, Miller, No. 10-9646 (U.S.
Feb. 14, 2012) (noting that Virginia statute “expressly
say[s] that if the defendant is a juvenile, the punishment for capital murder ‘shall be’ life without parole”).
Before Miller, life without parole was the minimum
sentence for juveniles convicted of capital murder—de
facto, if not de jure.
To be clear, the point is not that Virginia’s sentencing scheme was in fact “mandatory” as the Warden uses the term.19 The point is that Miller’s require18

Jones II stated that “Virginia trial courts can—and do—
suspend life sentences.” 795 S.E.2d at 711 & n.8. But none of the
cases it cited involved a conviction for capital murder or a conviction under any other statute that specified that the defendant
“shall be sentenced to imprisonment for life,” Va. Code Ann. §19.2264.4(A). See Tyson v. Commonwealth, No. 140917, 2015 WL
10945037, at *1 (Va. Aug. 14, 2015) (child rape, convicted in 2002);
Hamilton v. Director of the Dep’t of Corrs., No. 131738, 2014 Va.
LEXIS 201, at *1 (Va. June 6, 2014) (abduction, robbery, felony
eluding, firearms offenses); Harris v. Commonwealth, 688 S.E.2d
279, 280 n.2 (Va. 2010) (abduction with intent to defile); Moore v.
Hinkle, 527 S.E.2d 419, 422 (Va. 2000) (abduction); Jefferson v.
Commonwealth, No. 2172-12-2, 2013 WL 5801746, at *1 (Va. Ct.
App. Oct. 29, 2013) (possession with intent to distribute more than
100 kilograms of marijuana); White v. Commonwealth, No. 199896-2, 1997 WL 583578, at *1-2 (Va. Ct. App. Sept. 23, 1997) (cocaine distribution).
19

The Warden’s contention (at 23-24 n.7) that Malvo has
“waived” this argument is thus immaterial. Malvo does not con-

 52
ments—which do not depend on whether Virginia’s
scheme was “mandatory”—were not met here. Virginia’s so-called “discretionary” system thus resulted here
in the same risk of disproportionate punishment that a
“mandatory” sentence would have entailed.
Finally, the Warden and the United States at times
appear to suggest that it is Malvo’s fault that the trial
court failed to consider the characteristics of youth,
since he never asked the court to suspend his lifewithout-parole sentences. Pet. Br. 5; U.S. Br. 30. But,
as the court of appeals noted, it was hardly clear in 2004
that the trial court had the power to do that. Pet. App.
19a. And even assuming that Malvo should have known
that he had the ability to seek suspension, he cannot
have known that he had any basis to do so. At the time,
States were still permitted to sentence juveniles to
death—a fate Malvo had just escaped—and no one had
any inkling that this Court would recognize constitutional limits on life without parole for juveniles.20
test Jones II’s holding that, as a matter of Virginia law, trial
courts have the authority to suspend capital-murder sentences.
But he has never conceded that Virginia courts have actually exercised such “discretion,” or that the existence of such “discretion”
affects the application of Miller. See Opp. 2 (“[T]he rule of Miller
applies [not] only to ‘mandatory’ schemes that preclude sentencers
from considering age [but also] to ‘discretionary’ schemes, like
Virginia’s, that purportedly permit them to do so.”).
20

Relatedly, certain amici argue that Malvo defaulted his
Miller claim by not bringing it within the limitations period for
state habeas and that, therefore, he should not receive the benefit
of Miller. Mitchell Br. 13-32. The Court should not address this
issue. The Warden has expressly conceded that there was no
state process available to Malvo, Pet. Br. 13 n.2; see supra pp.15-16
n.8, and the issue is outside the question presented, Sup. Ct. R.
14.1(a). In any event, amici’s argument makes no sense. Malvo
had no Miller claim to raise until after the window for state habe-

 53
No one disputes that Miller articulated a new rule
of constitutional law—which, by definition, “breaks new
ground or imposes a new obligation on the States” that
defendants could not have anticipated. Teague, 489
U.S. at 301. That is precisely why Malvo—and many
other prisoners serving life without parole for crimes
committed as juveniles—have been able to bring Miller
claims in federal habeas in the first place. See 28 U.S.C.
§2244(d)(1)(C). Malvo cannot have “forfeited” (U.S. Br.
30) a right he had no reason to know existed. Because
Malvo’s sentencers did not consider youth and its characteristics in the way Miller requires, he is entitled to
be resentenced.

as had closed. He was not required to pursue a time-barred, and
therefore futile, state process.

 54
CONCLUSION
The court of appeals’ judgment should be affirmed.
Respectfully submitted.
JANET R. CARTER
SIMON KRESS
WILMER CUTLER PICKERING
HALE AND DORR LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
CRAIG S. COOLEY
3000 Idlewood Avenue
P.O. Box 7268
Richmond, VA 23221

DANIELLE SPINELLI
Counsel of Record
CATHERINE M.A. CARROLL
KEVIN M. LAMB
AMY C. LISHINSKI*
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
(202) 663-6000
danielle.spinelli@wilmerhale.com
* Admitted to practice only in
Illinois. Supervised by members
of the firm who are members of
the District of Columbia bar.

AUGUST 2019

 ADDENDUM

1a
RELEVANT 2002 STATUTORY PROVISIONS
Va. Code Ann. §18.2-10. Punishment for conviction of
felony; penalty
The authorized punishments for conviction of a felony
are:
(a) For Class 1 felonies, death, if the person so convicted was sixteen years of age or older at the time
of the offense, or imprisonment for life and, subject
to subdivision (g), a fine of not more than $100,000.
If the person was under sixteen years of age at the
time of the offense, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine
of not more than $100,000.
*

*

*

Va. Code Ann. §18.2–31. Capital murder defined;
punishment
A. The following offenses shall constitute capital murder, punishable as a Class 1 felony:
*

*

*

8. The willful, deliberate, and premeditated killing
of more than one person within a three-year period;
*

*

*

13. The willful, deliberate, and premeditated killing
of any person by another in the commission of or
attempted commission of an act of terrorism as defined in §18.2-46.4;
*

*

*

 2a
Va. Code Ann. §19.2-264.2. Conditions for imposition
of death sentence
In assessing the penalty of any person convicted of an
offense for which the death penalty may be imposed, a
sentence of death shall not be imposed unless the court
or jury shall (1) after consideration of the past criminal
record of convictions of the defendant, find that there is
a probability that the defendant would commit criminal
acts of violence that would constitute a continuing serious threat to society or that his conduct in committing
the offense for which he stands charged was outrageously or wantonly vile, horrible or inhuman in that it
involved torture, depravity of mind or an aggravated
battery to the victim; and (2) recommend that the penalty of death be imposed.
Va. Code Ann. §19.2-264.4. Sentence proceeding
A. Upon a finding that the defendant is guilty of an offense which may be punishable by death, a proceeding
shall be held which shall be limited to a determination
as to whether the defendant shall be sentenced to death
or life imprisonment. Upon request of the defendant, a
jury shall be instructed that for all Class 1 felony offenses committed after January 1, 1995, a defendant
shall not be eligible for parole if sentenced to imprisonment for life. In case of trial by jury, where a sentence of death is not recommended, the defendant shall
be sentenced to imprisonment for life.
*

*

*

B. In cases of trial by jury, evidence may be presented
as to any matter which the court deems relevant to
sentence, except that reports under the provisions of

 3a
§19.2-299, or under any rule of court, shall not be admitted into evidence.
Evidence which may be admissible, subject to the rules
of evidence governing admissibility, may include the
circumstances surrounding the offense, the history and
background of the defendant, and any other facts in
mitigation of the offense. Facts in mitigation may include, but shall not be limited to, the following: (i) the
defendant has no significant history of prior criminal
activity, (ii) the capital felony was committed while the
defendant was under the influence of extreme mental
or emotional disturbance, (iii) the victim was a participant in the defendant’s conduct or consented to the act,
(iv) at the time of the commission of the capital felony,
the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the
requirements of law was significantly impaired, (v) the
age of the defendant at the time of the commission of
the capital offense, or (vi) mental retardation of the defendant.
C. The penalty of death shall not be imposed unless the
Commonwealth shall prove beyond a reasonable doubt
that there is a probability based upon evidence of the
prior history of the defendant or of the circumstances
surrounding the commission of the offense of which he
is accused that he would commit criminal acts of violence that would constitute a continuing serious threat
to society, or that his conduct in committing the offense
was outrageously or wantonly vile, horrible or inhuman, in that it involved torture, depravity of mind or
aggravated battery to the victim.
D. The verdict of the jury shall be in writing, and in one
of the following forms:

 4a
(1) “We, the jury, on the issue joined, having found
the defendant guilty of (here set out statutory language of the offense charged) and that (after consideration of his prior history that there is a probability that he would commit criminal acts of violence that would constitute a continuing serious
threat to society) or his conduct in committing the
offense is outrageously or wantonly vile, horrible or
inhuman in that it involved (torture) (depravity of
mind) (aggravated battery to the victim), and having considered the evidence in mitigation of the offense, unanimously fix his punishment at death.
Signed ...................., foreman”
or
(2) “We, the jury, on the issue joined, having found
the defendant guilty of (here set out statutory language of the offense charged) and having considered all of the evidence in aggravation and mitigation of such offense, fix his punishment at imprisonment for life.
Signed ...................., foreman”
E. In the event the jury cannot agree as to the penalty,
the court shall dismiss the jury, and impose a sentence
of imprisonment for life.
Va. Code Ann. §19.2-303. Suspension or modification
of sentence; probation; taking of fingerprints as condition of probation
After conviction, whether with or without jury, the
court may suspend imposition of sentence or suspend
the sentence in whole or part and in addition may place
the accused on probation under such conditions as the

 5a
court shall determine or may, as a condition of a suspended sentence, require the accused to make at least
partial restitution to the aggrieved party or parties for
damages or loss caused by the offense for which convicted, or to perform community service, or both, under
terms and conditions which shall be entered in writing
by the court. …
*

*

*

Va. Code Ann. §53.1-40.01. Conditional release of geriatric prisoners
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. §53.1-165.1. Limitation on the application of parole statutes
The provisions of this article, except §§53.1-160 and
53.1-160.1, shall not apply to any sentence imposed or to
any prisoner incarcerated upon a conviction for a felony
offense committed on or after January 1, 1995. Any
person sentenced to a term of incarceration for a felony
offense committed on or after January 1, 1995, shall not
be eligible for parole upon that offense.