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June 22, 2018

Fourth Circuit affirms ruling that DC sniper Lee Malvo entitled to resentencing due to Miller and Montgomery

Last year, as reported in this prior post, a US District Judge concluded that infamous sniper Lee Boyd Malvo was entitled to re-sentencing as a consequence of Supreme Court rulings precluding mandatory life sentences for juvenile murderers.  Yesterday, the Fourth Circuit affirmed that decision in a unanimous panel ruling in Malvo v. Mathena, No. 17-6746 (4th Cir. June 21, 2018) (available here). This ruling gets started this way: 

In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence.  After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.  Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder — both of which he also committed when 17 years old — and received two additional terms of life imprisonment without parole.

After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18.  It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court’s new rules.  See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.  Accordingly, we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole.  Montgomery, 136 S. Ct. at 734.

June 22, 2018 at 09:01 AM | Permalink


Don't know if Virginia raised it, but there appears to be a potential exhaustion problem in the case. A lot of the opinion speculates about how the Virginia courts might view some of the tangential issues and there is no finding that Virginia unreasonably applied Montgomery; so it seems like Malvo went straight to federal court. I don't know if the state raised an exhaustion objection and the Fourth Circuit ignored it or if Virginia conceded that Malvo did not have to seek relief in Virginia.

On the merits, while I think that the Fourth Circuit's reading of some of the language in Montgomery is a plausible reading of that language, I don't think that it is necessarily the best interpretation of the actual holding.

Posted by: tmm | Jun 22, 2018 2:38:18 PM

This ruling shows the stupidity of the Court's previous ruling banning juve LWOP. For that matter, I see no reason on Earth why Malvo, who apparently wanted a chance to meet Allah, should not be given the opportunity to do so at the earliest possible moment. But the Court has banned that, too.

Posted by: William Jockusch | Jun 22, 2018 6:17:59 PM

The end of the opinion is notable:

Because we are bound to apply those constitutional rules, we affirm the
district court’s grant of habeas relief awarding Malvo new sentencings. We make this ruling not with any satisfaction but to sustain the law. As for Malvo, who knows but God how he will bear the future.


Posted by: Jason | Jun 22, 2018 10:01:57 PM

The rehearing is lawyer rent seeking fraud. It is a bunko operation to generate $thousands if not $millions in lawyer jobs.

Posted by: David Behar | Jun 24, 2018 5:35:50 AM

Doug -- just a comment that I'm getting tired of David Behar's comments, and this from a frequently pro-punishment reader.

Posted by: William C Jockusch | Jun 24, 2018 11:31:57 AM

Doug -- just a comment that I'm getting tired of Jack's ad hominem comments devoid of fact or of logic, with just nasty personal insults.

Posted by: David Behar | Jun 25, 2018 10:21:57 PM

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