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Criminal Practice – Commutation muted challenge to initial sentence

A defendant initially sentenced to six life terms for non-homicide offenses received a partial pardon from Virginia’s then-governor. The pardon mooted the defendant’s constitutional challenge to his initial sentence, and the district court erred in ruling on it.


sAt age 15, Travion Blount participated in the armed robbery of 12 people at a house party. A jury convicted him of 49 felonies stemming from the robbery. In March 2008, the trial court sentenced Blount to six consecutive terms of life imprisonment plus 118 years’ imprisonment. In contrast, Blount’s two adult coconspirators were sentenced to 10 and 13 years, respectively. Under Virginia law, Blount was subject to a geriatric release program, under which he would have been eligible to apply for conditional release once he turned 60 years old.

Shortly after Blount’s convictions became final, the U.S. Supreme Court decided Graham v. Florida, 560 U.S. 48 (2010). Blount moved to vacate his sentence under Graham, but the state courts held that Virginia’s geriatric release program satisfied Graham. Blount then applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his sentence of six life terms plus 118 years’ imprisonment for non-homicide offenses violated Graham. The district court directed the Commonwealth to respond to Blount’s discovery requests.

While discovery was proceeding, Blount petitioned the Governor of Virginia for a “conditional pardon,” seeking a “reduction of his sentence … to a more appropriate amount of time for the crimes he committed” and specifically requesting “a 20 year period, or less, of incarceration.” In response, former Virginia governor Bob McDonnell issued an executive order, styled as a “commutation,” reduced Blount’s sentence to 40 years’ imprisonment. As a result, Blount’s projected release date with good-time credits became December 3, 2046.

The Commonwealth notified the district court of the executive order and argued that it mooted Blount’s habeas application. But by an order dated May 26, 2017, the district court granted Blount’s application for a writ of habeas corpus and directed the state trial court to re-sentence him. Based on LeBlanc v. Mathena, 841 F.3d 256 (4th Cir. 2016), the district court stated that reliance on Angel v. Commonwealth “amounted to an unreasonable application of the clearly established federal law announced in Graham.”

The district court acknowledged this court’s recent decision in United States v. Surratt, 855 F.3d 218 (4th Cir. 2017), where we held that the commutation of a federal prisoner’s mandatory life sentence to a term of 200 months mooted his appeal in an action challenging his original mandatory life sentence. But the district court chose to rely on the dissenting opinion, stating that, “In the absence of substantive reasoning behind the majority’s ruling [in] the Memorandum Order in Surratt,” it was “persuaded by the dissenting opinion” and “the principle that a petitioner’s original sentence remains unlawful regardless of whether the current sentence suffers from a constitutional or fundamental defect.”

Less than a month later, the U.S. Supreme Court reversed this court’s decision in LeBlanc. The Commonwealth promptly moved to alter or amend the district court’s judgment, but the district court concluded that LeBlanc was not “an intervening change in controlling law” because it “did not consider whether Virginia’s geriatric parole provision satisfies Graham or the requirements recognized in the Eighth Amendment.” The district court concluded again that Blount’s sentencing was “constitutionally deficient.” The Commonwealth filed this appeal.


The court’s holding here rests entirely on the question whether, in light of Gov. McDonnell’s partial pardon and our decision in Surratt, the district court had jurisdiction to grant any habeas relief in the first place. Blount’s habeas application is based on his claim that his sentence of six life terms plus 118 years’ imprisonment violated the Eighth Amendment under Graham. Resolution of Blount’s habeas application thus turned on whether Virginia courts had unreasonably applied Graham in holding that Virginia’s geriatric release program provided offenders like him with a meaningful opportunity to obtain release.

Before the district court could address that issue, however, Gov. McDonnell reduced Blount’s sentence to 40 years. Thus, Blount’s habeas application, which challenged the constitutionality of his original sentence, no longer presented a live dispute, since he was no longer subject to a sentence of life imprisonment but was instead serving a substantially reduced sentence that was the product of the Governor’s act of executive clemency. Therefore, the district court lacked the authority to grant Blount any effectual relief whatever, and his habeas petition accordingly should have been dismissed as moot. This court recognized as much in Surratt.

Surratt applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, but the district court denied his petition. While his appeal of the denial was pending, the President of the United States commuted his life sentence to a term of 200 months’ imprisonment. This court held that the commutation mooted Surratt’s appeal.

Judge Wynn dissented, concluding that Surratt was entitled to a new sentencing hearing, at which he would have faced an advisory sentencing range of only 120 to 137 months’ imprisonment, which was below both his 200-month term under the commutation and the 140 months he had already served. But the majority rejected this approach and dismissed his appeal as moot, necessarily concluding that the court could not disturb Surratt’s presidentially commuted sentence based on his claim that he was improperly subjected to a mandatory minimum life sentence at his original sentencing hearing.

The district court’s order awarding Blount habeas relief indicates that the court was well aware of our holding in Surratt but declined to follow it, finding the dissenting opinion more persuasive. But that court was not free to do so. Had the district court properly applied Surratt, it would have concluded that Gov. McDonnell’s valid partial pardon rendered Blount’s habeas application moot and that the district court therefore lacked jurisdiction to opine on the constitutionality of Blount’s original sentence.

Vacated and remanded with instructions.

Blount v. Clarke (Lawyers Weekly No. 001-089-18, 14 pp.) (Niemeyer, J.) No. 17-6743; May 15, 2018; from EDVA at Norfolk (Allen, J.) Matthew Robert McGuire for Appellant; John Arthur Coggeshall for Appellee. 4th Cir.

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