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PUBLISHED
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`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
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`No. 22-6704
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`JOHNNIE FRANKLIN WILLS,
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`KAREN PSZCZOLKOWSKI, Superintendent, Northern Correctional Facility,
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`Petitioner – Appellant,
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`v.
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`Respondent – Appellee.
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`Appeal from the United States District Court for the Northern District of West Virginia, at
`Clarksburg. John Preston Bailey, District Judge. (5:22-cv-00005-JPB-JPM)
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`Argued: March 8, 2023
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`Decided: January 13, 2025
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`Before AGEE and RUSHING, Circuit Judges, and Joseph DAWSON III, United States
`District Judge for the District of South Carolina, sitting by designation.
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`Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Agee
`and Judge Dawson joined.
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`ARGUED: Jeremy Benjamin Cooper, BLACKWATER LAW, PLLC, Kingwood, West
`Virginia, for Appellant. Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL
`OF WEST VIRGINIA, Charleston, West Virginia, for Appellee. ON BRIEF: Patrick
`Morrisey, Attorney General, Michael R. Williams, Senior Deputy Solicitor General, Grant
`A. Newman, Spencer J. Davenport, Special Counsel, OFFICE OF THE ATTORNEY
`GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.
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`RUSHING, Circuit Judge:
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`Johnnie Franklin Wills, a state prisoner, filed a habeas petition challenging his life
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`sentence under West Virginia’s recidivist statute. He claims that West Virginia’s judicially
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`crafted test for determining whether a recidivist life sentence is proportional to the crime
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`is unconstitutionally vague. The West Virginia courts denied Wills relief, reasoning that
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`the void-for-vagueness doctrine does not extend to their proportionality test. Because that
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`decision was reasonable, the district court denied Wills relief. We affirm.
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`I.
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`In 2016, a West Virginia jury convicted Wills of grand larceny and conspiracy to
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`commit grand larceny, which are both felonies. Because Wills had previously been
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`convicted of eight other felonies, the court sentenced him to life imprisonment (with parole
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`eligibility after fifteen years) under West Virginia’s recidivist statute. See W. Va. Code
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`§ 61-11-18 (2000).
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`At that time, West Virginia’s recidivist statute stated that a person who had been
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`“twice before convicted” of a felony “shall be sentenced to be confined . . . for life” upon
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`a third felony conviction.1 Id. But despite the statute, not every third felony conviction
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`results in a life sentence. The recidivist statute must operate within the bounds of the West
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`Virginia Constitution, which requires that “[p]enalties shall be proportioned to the
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`character and degree of the offense.” W. Va. Const. art. III, § 5. Thus, a court applying
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`the recidivist statute may nevertheless evaluate whether a “life sentence imposed for
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`1 In 2020, the West Virginia legislature amended the recidivist statute, but the parties
`agree that amendment has no bearing on this case.
`2
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`recidivism [would be] constitutionally disproportionate to the offenses upon which it is
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`based.” State v. Beck, 286 S.E.2d 234, 244 (W. Va. 1981). The Supreme Court of Appeals
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`of West Virginia has devised the following proportionality test: “for purposes of a life
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`recidivist conviction . . . , two of the three felony convictions considered must have
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`involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon
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`the victim such that harm results.” State v. Hoyle, 836 S.E.2d 817, 833 (W. Va. 2019). “If
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`this threshold is not met, a life recidivist [sentence] is an unconstitutionally
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`disproportionate punishment under” the state constitution. Id.
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`Wills appealed his life sentence to the Supreme Court of Appeals of West Virginia,
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`arguing that his felonies were not violent. That court affirmed. See State v. Wills, No. 16-
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`1199, 2017 WL 5632127, at *4 (W. Va. Nov. 22, 2017). The court explained that the
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`recidivist statute imposes a life sentence on a defendant who commits three felonies, but in
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`some cases that sentence may “run afoul” of the proportionality principle in the West
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`Virginia constitution. Id. at *2. Will’s sentence, however, did not violate the
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`proportionality principle because he was convicted of multiple crimes that “by their very
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`nature involve the threat of harm or violence.” Id. at *3 (internal quotation marks and
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`brackets omitted).
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`Wills then filed a petition for a writ of habeas corpus in state court. As relevant
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`here, he challenged his recidivist life sentence, arguing that the state courts’ proportionality
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`test was unconstitutionally void for vagueness after the United States Supreme Court’s
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`decisions in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, 138
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`S. Ct. 1204 (2018).
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`3
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`In Johnson, the Supreme Court held the residual clause of the Armed Career
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`Criminal Act (ACCA) void for vagueness. 576 U.S. at 606. ACCA imposes an increased
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`mandatory minimum sentence for a defendant previously convicted of three violent
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`felonies, and its residual clause defined a “violent felony” as a crime punishable by more
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`than one year’s imprisonment that “‘involves conduct that presents a serious potential risk
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`of physical injury to another.’”
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` Id. at 594 (emphases omitted) (quoting 18
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`U.S.C. § 924(e)(2)(B)(ii)). The Court reasoned that two features of the clause, in
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`combination, rendered it unconstitutionally vague. First, it tied “the judicial assessment of
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`risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory
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`elements,” which left “grave uncertainty about how to estimate the risk posed by a crime.”
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`Id. at 597. Second, the clause required courts “to apply an imprecise ‘serious potential
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`risk’ standard” to that “judge-imagined abstraction,” resulting in “uncertainty about how
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`much risk it takes for a crime to qualify as a violent felony.” Id. at 598. “By combining
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`indeterminacy about how to measure the risk posed by a crime with indeterminacy about
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`how much risk it takes for the crime to qualify as a violent felony, the residual clause
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`produce[d] more unpredictability and arbitrariness than the Due Process Clause [of the
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`Fifth Amendment] tolerates.” Id.
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`In Dimaya, the Court extended Johnson’s reasoning to hold the residual clause of
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`the “crime of violence” definition in 18 U.S.C. § 16(b) void for vagueness. 138 S. Ct. at
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`1212, 1215. That clause defined a “crime of violence” as “any other offense that is a felony
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`and that, by its nature, involves a substantial risk that physical force against the person or
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`property of another may be used in the course of committing the offense.” Id. at 1211
`4
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`(internal quotation marks omitted). Because Section 16(b)’s residual clause had “the same
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`two features as ACCA’s, combined in the same constitutionally problematic way,” it was
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`also unconstitutionally vague.2 Id. at 1213.
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`Wills’s habeas petition argued that, if West Virginia courts apply a “categorical
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`approach” to assess whether a crime is violent for purposes of their proportionality test,
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`then “the recidivist law fails for the same reasons as those in Johnson and Dimaya.” J.A.
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`257. The state court disagreed and denied him habeas relief. The Supreme Court of
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`Appeals of West Virginia affirmed. See Wills v. Pszczolkowski, No. 20-472, 2021 WL
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`3030372, at *4 (W. Va. July 19, 2021). As the court explained, it has repeatedly held that
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`the recidivist statute is “plain and unambiguous.” Id. (internal quotation marks omitted);
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`see, e.g., State ex rel. Appleby v. Recht, 583 S.E.2d 800, 816 (W. Va. 2002) (per curiam).
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`The court distinguished Johnson and Dimaya, observing that neither case “‘involve[d] a
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`recidivist statute’” and “‘the principles of statutory construction contained in those cases
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`are inapplicable to resolve the issue presented herein: whether, under the facts and
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`circumstances of this case, the imposition of a life sentence under our recidivist statute is
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`constitutionally disproportionate.’” Wills, 2021 WL 3030372, at *4 (quoting State v.
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`Plante, No. 19-109, 2020 WL 6806375, at *5 (W. Va. Nov. 19, 2020)).
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`After the state court denied him relief, Wills filed a federal habeas petition under 28
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`U.S.C. § 2254. The district court also denied Wills relief. Applying the Antiterrorism and
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`2 Later, the Supreme Court held unconstitutionally vague the residual clause of the
`“crime of violence” definition in 18 U.S.C. § 924(c)(3), which is “almost identical to the
`language” of Section 16(b). United States v. Davis, 139 S. Ct. 2319, 2329 (2019).
`5
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`Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, the
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`district court concluded that the decision of the Supreme Court of Appeals of West Virginia
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`was not contrary to or an unreasonable application of clearly established federal law.
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`Johnson and Dimaya were distinguishable, the district court explained, because they
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`involved “a statutorily-mandated aggravating factor,” which is “patently different” from
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`the challenged proportionality test, which “operates as a judicially-created limitation on a
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`recidivist sentence.” J.A. 381.
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`The district court granted Wills a certificate of appealability, and he appealed. We
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`review the district court’s denial of habeas relief de novo. Allen v. Lee, 366 F.3d 319, 323
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`(4th Cir. 2004) (en banc).
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`II.
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`AEDPA governs our review. Because the state court adjudicated the merits of
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`Wills’s constitutional claim, AEDPA bars relief unless the state court’s decision “was
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`contrary to, or involved an unreasonable application of, clearly established Federal law, as
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`determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “was
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`based on an unreasonable determination of the facts in light of the evidence presented in
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`the State court proceeding,” id. § 2254(d)(2). See Harrington v. Richter, 562 U.S. 86, 100
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`(2011); Lewis v. Wheeler, 609 F.3d 291, 300–301 (4th Cir. 2010).
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`Wills invokes only the “unreasonable application” clause of Section 2254(d)(1).
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`For purposes of Section 2254(d)(1), “clearly established Federal law” includes “only the
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`holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall,
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`572 U.S. 415, 419 (2014) (internal quotation marks omitted). A state court’s ruling is an
`6
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`“unreasonable application of” those holdings only if it “‘was so lacking in justification that
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`there was an error well understood and comprehended in existing law beyond any
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`possibility for fairminded disagreement.’” Woods v. Donald, 575 U.S. 312, 316 (2015)
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`(quoting Richter, 562 U.S. at 103). In other words, if “fairminded jurists could disagree
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`on the correctness of the state court’s decision,” then it was not an unreasonable application
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`of federal law. Richter, 562 U.S. at 101 (internal quotation marks omitted). Showing that
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`the state court’s ruling was “wrong” or even “clear error” will “not suffice.” Woods, 575
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`U.S. at 316 (internal quotation marks omitted). As the Supreme Court has explained,
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`Section 2254(d)(1) “corrects only the most ‘extreme malfunctions.’” Currica v. Miller, 70
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`F.4th 718, 724 (4th Cir. 2023) (quoting Woods, 575 U.S. at 316).
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`Wills identifies Johnson, Dimaya, and Davis as the relevant Supreme Court
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`precedents for his vagueness claim. Those decisions applied the Fifth Amendment, but a
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`State similarly violates the Due Process Clause of the Fourteenth Amendment “when it
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`deprives someone of life, liberty, or property pursuant to a statute or regulation that is ‘so
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`vague that it fails to give ordinary people fair notice of the conduct it punishes, or so
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`standardless that it invites arbitrary enforcement.’” Lumumba v. Kiser, 116 F.4th 269, 284
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`(4th Cir. 2024) (quoting Johnson, 576 U.S. at 595). The Supreme Court has applied this
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`standard to invalidate, as void for vagueness, “two kinds of criminal laws”: those that
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`“define criminal offenses” and those that “fix the permissible sentences for criminal
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`offenses.” Beckles v. United States, 137 S. Ct. 886, 892 (2017) (emphases omitted).
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`Wills contends that his sentence under West Virginia’s recidivist statute violates
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`this due process principle. But Wills does not challenge the statute itself as vague. Instead,
`7
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`Wills challenges, as void for vagueness, the proportionality test used by West Virginia
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`courts. He argues that by upholding that test, the Supreme Court of Appeals of West
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`Virginia unreasonably applied federal law as clearly established in Johnson, Dimaya, and
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`Davis.
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`We disagree. The United States Supreme Court has not applied the void-for-
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`vagueness doctrine to a judicially crafted proportionality test, and whether its holdings
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`apply to this context is not “so obvious” that “there could be no fairminded disagreement
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`on the question.” White, 572 U.S. at 427 (internal quotation marks omitted). The state
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`court’s ruling therefore was not an unreasonable application of clearly established federal
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`law, and Section 2254(d)(1) offers Wills no relief.
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`First, in Johnson, Dimaya, and Davis, the Supreme Court evaluated and invalidated
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`statutes for unconstitutional vagueness. The Court has not extended those holdings beyond
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`the statutory context. See, e.g., Beckles, 137 S. Ct. at 892 (refusing to extend Johnson to
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`the Sentencing Guidelines).
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`Second, whether those holdings apply to judicially crafted tests is certainly not
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`“beyond any possibility for fairminded disagreement.” Woods, 575 U.S. at 316 (internal
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`quotation marks omitted). Wills identifies no court that has evaluated a judicial standard
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`for unconstitutional vagueness. To the contrary, courts have concluded that the void-for-
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`vagueness doctrine does not apply to judicial decisions. See Columbia Nat. Res., Inc. v.
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`Tatum, 58 F.3d 1101, 1106 (6th Cir. 1995) (“No precedent supports the proposition that a
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`party may attack a Supreme Court decision as void for vagueness.”); Weigel v. Maryland,
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`950 F. Supp. 2d 811, 834 (D. Md. 2013) (explaining that no “controlling authority . . .
`8
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`applies the void-for-vagueness doctrine to judicial decisions”). Wills relies on Bouie v.
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`City of Columbia, 378 U.S. 347 (1964), but that opinion did not apply the void-for-
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`vagueness doctrine to a judicial decision. In Bouie, the Supreme Court held that the Due
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`Process Clause prohibited a state court from applying its “unforeseeable judicial
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`enlargement of a criminal statute” retroactively. 378 U.S. at 353. But Wills does not bring
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`a retroactivity challenge to the state court’s proportionality test; he challenges it as void for
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`vagueness. And as the Supreme Court has recently explained, “the void-for-vagueness and
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`ex post facto inquiries are analytically distinct.” Beckles, 137 S. Ct. at 895 (internal
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`quotation marks omitted).
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`Fairminded jurists could agree with the Supreme Court of Appeals’ conclusion that
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`the Johnson line of cases does not apply to its proportionality test. As Wills acknowledges,
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`the West Virginia recidivist statute unambiguously imposes a life sentence on a defendant
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`with three felony convictions. See State ex rel. Appleby, 583 S.E.2d at 816. The
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`proportionality test does not purport to interpret the unambiguous recidivist statute. See
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`id.; State v. Rich, No. 21-638, 2022 WL 17444786, at *2 (W.V. Dec. 6, 2022). Rather, it
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`is a standard by which West Virginia courts assess whether a sentence, authorized by the
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`recidivist statute, violates the proportionality principle of the state constitution. In other
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`words, the state court’s evaluation of whether a defendant’s felonies were actually or
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`potentially violent or resulted in harm cannot increase but only decrease his statutory life
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`sentence. As the district court observed, this judicially created proportionality limit on the
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`recidivist sentences imposed by the legislature is “wholly dissimilar from” the statutes in
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`9
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`Johnson, Dimaya, and Davis, which imposed more severe punishment based on
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`unconstitutionally vague statutory standards. J.A. 381.
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`Recognizing the differences between this case and clearly established federal law,
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`Wills argues that the Supreme Court of Appeals of West Virginia unreasonably applied
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`federal law by “‘refus[ing] to extend’” the holdings of Johnson, Dimaya, and Davis to this
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`“‘new context where it should apply.’” Opening Br. 11 (quoting Decastro v. Branker, 642
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`F.3d 442, 449 (4th Cir. 2011)). Our Court used to entertain such arguments, but the
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`Supreme Court unequivocally shut down that practice as inconsistent with AEDPA. See
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`White, 572 U.S. at 426; Tyler v. Hooks, 945 F.3d 159, 166 (4th Cir. 2019) (acknowledging
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`that “the Supreme Court has rejected [this] notion”); Gunnells v. Cartledge, 669 Fed. App.
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`165, 166 (4th Cir. 2016) (recognizing that “the Supreme Court has since abrogated [our
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`precedent] by rejecting the principle that a state court could be unreasonable in refusing to
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`extend Supreme Court precedent”). As the Supreme Court explained, “Section 2254(d)(1)
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`provides a remedy for instances in which a state court unreasonably applies this Court’s
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`precedent; it does not require state courts to extend that precedent or license federal courts
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`to treat the failure to do so as error.” White, 572 U.S. at 426. After all, “if a habeas court
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`must extend a rationale before it can apply to the facts at hand, then by definition the
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`rationale was not clearly established at the time of the state-court decision.” Id. (internal
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`quotation marks omitted). Wills’s extension argument, therefore, is unavailing.
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`III.
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`In short, Wills has not shown that the state court’s ruling on his vagueness claim
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`“was so lacking in justification that there was an error well understood and comprehended
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`in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at
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`103. Having failed to satisfy this “condition for obtaining habeas corpus from a federal
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`court,” Wills cannot receive relief. Id. The judgment of the district court is
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`AFFIRMED.
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`11
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