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Malvo v. Mathena

United States District Court, D. Maryland

April 11, 2017

LEE BOYD MALVO Petitioner
v.
RANDALL MATHENA, CHIEF WARDEN RED ONION STATE PRISON and BRIAN FROSH, as ATTORNEY GENERAL FOR THE STATE OF MARYLAND Respondents

          MEMORANDUM OPINION

          PETER J. MESSITTE UNITED STATES DISTRICT JUDGE

         Lee Boyd Malvo has filed a petition pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus against Randall Mathena, Chief Warden of the Red Onion State Prison in Pound, Virginia (where Malvo is presently confined), and Brian Frosh, Esquire, Attorney General for the State of Maryland.[1] Malvo seeks to modify the six consecutive terms of life imprisonment without the possibility of parole he was sentenced to in 2006 in the Circuit Court of Montgomery County, Maryland, following guilty pleas on six counts charging murder in the first degree.

         On January 13, 2017, Malvo filed a Motion for Stay (ECF No. 18) in this Court, asking it to stay and hold in abeyance the § 2254 Petition. He argues that a stay is proper because on January 12, 2017, he filed a Motion to Correct Illegal Sentence challenging the legality of his sentences in Maryland State Court based on the Supreme Court's decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).

         Defendants have filed an opposition to the Motion to Stay (ECF No. 21), effectively arguing that the Court should deny Malvo's Motion and dismiss the § 2254 Petition because the claim he raises has not yet been exhausted in state court.[2]

         The Court will GRANT Malvo's Motion for Stay (ECF No. 18) and DENY Defendants' Motion to Dismiss (ECF No. 21).

         I. FACTS AND PROCEDURAL HISTORY

         A. Malvo's Crimes and Sentences

         Over the course of several weeks in October 2002, Malvo and John Allen Muhammad, who became known as the “D.C. Snipers, ” shot 13 people, killing 10. See Muhammad v. State, 177 Md.App. 188 (2007).[3] Malvo was 17 years old at the time of the killings, Muhammad was 41. See id. at 217. The shootings took place in Maryland, Virginia, and the District of Columbia. See generally id.

         Muhammad was convicted of capital murder in Virginia in 2003 and was executed in 2009. Muhammad v. Commonwealth, 269 Va. 451, 619 S.E.2d 16 (2005).

         In December 2003, Malvo was convicted in Virginia of two counts: murder in the commission of an act of terrorism and murder of more than one person in a three year period. See Malvo v. Mathena, 2014 WL 2808805, at *3 (E.D. Va. June 20, 2014). He was sentenced to two terms of life imprisonment without parole plus eight years. Id. Malvo did not appeal his judgment of conviction in the Virginia courts. Id.

         On October 10, 2006, in the Circuit Court for Montgomery County, Maryland, Malvo pled guilty to six counts of first degree murder, and on November 8, 2006, he was sentenced to six terms of life imprisonment without the possibility of parole, to be served consecutively. Am. Pet. ¶¶ 1-2, ECF No. 8; Defs.' Lim. Ans., Ex. 1, ECF No. 10-1. Malvo did not appeal his Maryland conviction to the Maryland appellate courts. Am. Pet. ¶ 3; Defs.' Lim. Ans., Ex. 1. On November 27, 2006, however, he did file a motion for modification of sentence in the Montgomery County Circuit Court, which the court initially held in abeyance, and eventually denied on September 18, 2012. Defs.' Lim. Ans., Ex. 1.

         Malvo is presently incarcerated in the Commonwealth of Virginia. Am. Pet. ¶ 8.

         On June 25, 2012, the U.S. Supreme Court decided Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that the Eighth Amendment to the U.S. Constitution generally prohibits the imposition of mandatory life without parole sentences for juveniles. In consequence, Malvo filed separate § 2254 petitions in Virginia and Maryland federal courts, seeking to modify his Virginia and Maryland sentences respectively, on the ground that his life without parole sentences are unconstitutional in light of Miller. The § 2254 petition of his Virginia convictions (hereinafter the “Virginia Petition”) was filed in the Eastern District of Virginia (2:13-cv-00375 and 2:13-cv-00376). The § 2254 petition of his Maryland convictions (hereinafter the “Petition” or “Maryland Petition”) is before this Court.

         B. Malvo's Virginia Petition

         In June 2014, the Eastern District of Virginia denied Malvo's Virginia Petition. Malvo v. Mathena, 2014 WL 2859153, at *2 (E.D. Va. June 23, 2014). The court held that Miller did not apply retroactively, and thus dismissed with prejudice Malvo's Virginia Petition as time-barred. Malvo appealed to the Fourth Circuit, No. 14-7069. Id.

         Throughout 2014 and 2015, the Fourth Circuit issued a series of stays delaying the briefing schedule in the appeal of the Virginia Petition. Fourth Circuit, No. 14-7069, Docs. 6, 26. One of these stays related to the Supreme Court's grant of a petition for writ of certiorari in Montgomery v. Louisiana, No.14-280, in March 2015, Fourth Circuit, No. 14-7069, Doc. 26, which raised the issue of whether Miller was retroactive.

         On January 25, 2016, the Supreme Court issued its judgment in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), holding in a 6-3 decision that Miller's prohibition on mandatory life without parole for juvenile offenders announced a new substantive rule that, under the Constitution, was indeed retroactive and could be raised by affected individuals on collateral review.[4]

         On April 6, 2016, Defendant Mathena moved the Fourth Circuit to remand the Virginia Petition to the Eastern District of Virginia for reconsideration in light of Miller and Montgomery. Fourth Circuit, No. 14-7069, Doc. 33. In fact, he requested that the Fourth Circuit remand to the district court for a full merits analysis, without limitation as to the scope of the merits arguments which the parties might present. Id. On May 20, 2016, the Fourth Circuit granted Mathena's Motion to Remand, directing the Eastern District of Virginia to further consider the Virginia Petition in light of Montgomery. Fourth Circuit, No. 14-7069, Doc. 39. The Fourth Circuit's mandate was issued on June 13, 2016, so that the Virginia Petition is currently pending before the Eastern District of Virginia. Fourth Circuit, No. 14-7069, Doc. 41.[5]

         C. Malvo's Maryland Petition

         On June 25, 2013, Malvo filed his Maryland Petition for Writ of Habeas Corpus in this Court. ECF No. 1. The Petition named Mathena as the sole defendant. Mathena responded (ECF No. 4), alleging that the Attorney General of Maryland was the proper party defendant in the case, such that on August 19, 2013 Malvo filed an Amended Petition (ECF No. 8) adding then-Maryland Attorney General Douglas F. Gansler as a defendant.[6] The Petition requests that the Court vacate the allegedly unconstitutional sentences imposed by the Montgomery County Circuit Court. Malvo challenges the without-parole component of his sentences based on the Supreme Court's holding in Miller. Defendants filed a limited answer (ECF No. 10) on October 25, 2013.

         In light of the Eastern District of Virginia's denial of the Virginia Petition and Malvo's appeal to the Fourth Circuit, this Court deferred ruling on the Maryland Petition until the Fourth Circuit could address Malvo's Virginia appeal. Following the Fourth Circuit's decision to remand Malvo's Virginia Petition to the Eastern District of Virginia for further consideration in light of Montgomery, this Court renewed its focus on the Maryland Petition. On October 31, 2016, the Court issued a Memorandum Order (ECF No. 13) stating that it deemed it appropriate to receive further briefing on Malvo's Petition and the parties' arguments in light of Miller and Montgomery.

         On January 13, 2016, Malvo filed the pending Motion for Stay (ECF No. 18), asking the Court to stay and hold in abeyance the instant proceedings because on January 12, 2017, he filed a Motion to Correct an Illegal Sentence in the Circuit Court for Montgomery County. On February 22, 2017, Defendants responded (ECF No. 21), asserting that the Court should dismiss Malvo's Petition because he had yet to exhaust available state remedies with respect to the claim raised in his underlying petition. Malvo has not replied.

         II. ANALYSIS

         It has long been held that “habeas petitioners must exhaust available state remedies before seeking relief in federal court.” Cone v. Bell, 556 U.S. 449, 465 (2009). See also Rose v. Lundy, 455 U.S. 509, 518-19 (1982). When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)-altering the rules for federal habeas corpus petitions- it preserved the “total exhaustion” requirement. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . .”).

         Plainly Malvo has not yet exhausted his state remedies.[7] However, in Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that “rather than dismiss [a] petition . . ., a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims.” Id. at 275.[8] The Supreme Court did, however, caution that “stay and abeyance should be available only in limited circumstances.” Id. at 277 (“[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even ...


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