PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                     No. 18-6170


THOMAS FRANKLIN BOWLING,

                   Petitioner - Appellant,

             v.

DIRECTOR, Virginia Department of Corrections,

                   Respondent - Appellee.



Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Jackson L. Kiser, Senior District Judge. (7:17-cv-00142-JLK-RSB)


Argued: January 29, 2019                                       Decided: April 2, 2019


Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Circuit
Judge.


Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge
Richardson and Judge Traxler joined.


ARGUED:        Claire Cahill, GEORGETOWN UNIVERSITY LAW CENTER,
Washington, D.C., for Appellant. Brittany Marie Jones, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Erica
Hashimoto, Director, Aaron M. Steeg, Student Counsel, Appellate Litigation Program,
GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant.
Mark R. Herring, Attorney General, Victoria N. Pearson, Deputy Attorney General,
Laura Haeberle Cahill, Assistant Attorney General, Toby J. Heytens, Solicitor General,
Matthew R. McGuire, Principal Deputy Solicitor General, Michelle S. Kallen, Deputy
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellee.




                                        2
THACKER, Circuit Judge:

       This appeal arises from the Virginia Parole Board’s (“the Parole Board”) repeated

denial of parole to Thomas Franklin Bowling (“Appellant”). Appellant was sentenced to

life with parole when he was 17 years old. He first became eligible for parole on April

26, 2005. The Parole Board has considered his eligibility and denied him parole annually

ever since. Appellant alleges that, because the Parole Board was not specifically required

to consider age-related characteristics unique to juvenile offenders when it has processed

his parole applications, the Parole Board’s repeated denial of his applications violated his

Eighth and Fourteenth Amendment rights.

       On that ground, Appellant initiated this action against the Director of the Virginia

Department of Corrections (“Appellee”).           Appellee moved to dismiss Appellant’s

complaint, and the district court granted Appellee’s motion to dismiss.          Regarding

Appellant’s Eighth Amendment claim, the district court held that juvenile-specific Eighth

Amendment protections do not apply to Appellant because he was sentenced to life with

parole. Regarding Appellant’s Fourteenth Amendment claims, the district court held that

the Parole Board procedures satisfy procedural due process requirements.           For the

reasons stated below, we affirm the decision of the district court.

                                             I.

       In 1988, Appellant was convicted of capital murder, robbery, marijuana

possession, and two counts of use of a firearm in connection with his role in a botched

robbery that resulted in a homicide. He was sentenced to two life sentences, plus six

years and thirty days, with the possibility of parole. He was 17 years old at the time.

                                             3
      In 2005, Appellant became eligible for parole. Every year since 2005, the Parole

Board has considered Appellant’s eligibility for parole. Each of those years, the Parole

Board “review[ed] and evaluat[ed] . . . all available information pertaining to

[Appellant’s] case” and decided “not to grant [Appellant] parole.” J.A. 83–103. 1 Over

the years, the Parole Board noted its reasons for denying Appellant parole as follows:

               •   2005–2007: “Serious nature and circumstances of the
                   crime.” J.A. 37–39.

               •   2008–2009: “Serious nature and circumstances of the
                   crime,” and “Prior offense history indicates disregard for
                   the law.” J.A. 40–41.

               •   2010: “Crimes committed,” and “Serious nature and
                   circumstances of the offense.” J.A. 42.

               •   2011: “Serious nature and circumstances of the offense,”
                   “Crimes committed,” and “Release at this time would
                   diminish seriousness of crime.” J.A. 43.

               •   2012: “History of violence -- indicates serious risk to the
                   community,” “Release at this time would diminish
                   seriousness of crime,” “Serious nature and circumstances
                   of offense,” and “Crimes committed.” J.A. 44–45.

               •   May 2013: “Release at this time would diminish
                   seriousness of the crime,” “History of violence --
                   indicates serious risk to the community,” “Poor
                   institutional adjustment and/or record of institutional
                   infractions indicate that offender is not ready to conform
                   to society,” “Extensive criminal record,” and “Serious
                   nature and circumstances of offense.” J.A. 47.



      1
          Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this
appeal.


                                             4
               •   July 2013: “Serious nature and circumstances of your
                   offense(s),” and “The Board concludes that you should
                   serve more of your sentence prior to release.” J.A. 48.

               •   2014: “Release at this time would diminish seriousness of
                   the crime,” “Serious nature and circumstances of your
                   offense(s),” and “The Board concludes that you should
                   serve more of your sentence prior to release on parole.”
                   J.A. 50.

               •   2015: “Release at this time would diminish seriousness of
                   crime,” “Serious nature and circumstances of your
                   offense(s),” and “Crime committed.” J.A. 52.

               •   2016: “Release at this time would diminish seriousness of
                   crime,” “Crimes committed,” “Serious nature and
                   circumstance of your offense(s),” and “The Board
                   concludes that you should serve more of your sentence
                   prior to release on parole.” J.A. 55.

       Beginning in 2010, the Parole Board also noted that, in evaluating Appellant’s

eligibility for parole, it considered factors in addition to those it listed in its statement of

reasons.   Among other things, the Parole Board considered “whether [Appellant’s]

release would be compatible with public safety and the mutual interests of society and

[Appellant]”; “whether [Appellant’s] character, conduct, vocational training and other

developmental activities during incarceration reflect the probability that [he] will lead a

law-abiding life in the community and live up to all the conditions of parole”;

“[Appellant’s] personal history”; “[Appellant’s] institutional adjustment”; “[Appellant’s]

change in attitude toward [himself] and others”; “[Appellant’s] release plans”;

“[Appellant’s] evaluations”; “impressions gained . . . by the parole examiner”; and “any

other information provided by [Appellant’s] attorney, family, victims or other persons.”

J.A. 88–103.
                                               5
          On November 16, 2016, pursuant to Va. Code Ann. § 8.01-654, Appellant filed a

petition for a writ of habeas corpus in the Supreme Court of Virginia. He alleged that the

Parole Board violated his Eighth and Fourteenth Amendment rights. On March 10, 2017,

the Supreme Court of Virginia denied his claim. The court reasoned that a petition for a

writ of habeas corpus is not the proper vehicle for challenging denials of discretionary

parole.

          On April 4, 2017, pursuant to 28 U.S.C. § 2254, Appellant filed a petition for a

writ of habeas corpus in the Western District of Virginia. Three months later, the

Commonwealth of Virginia (“the Commonwealth”) moved to dismiss the petition,

arguing that Appellant’s claims were not cognizable as a habeas petition and, in any

event, the Parole Board properly denied his requests for parole. On January 23, 2018, the

district court granted the Commonwealth’s motion.        The district court first concluded

that, because Appellant is serving a life sentence with the opportunity for parole, his

sentence does not violate the Eighth Amendment. The district court then concluded that,

because the Commonwealth’s parole process satisfies the requirements of Franklin v.

Shields, 

, 790 (4th Cir. 1977) (defining the minimum due process

requirements that parole proceedings must satisfy), Appellant failed to demonstrate that

his parole proceedings violated the Fourteenth Amendment’s Due Process Clause.

          On August 23, 2018, this court issued Appellant a certificate of appealability on

both Appellant’s Eighth and Fourteenth Amendment claims.




                                              6
                                           II.

       We review a district court’s dismissal for failure to state a claim de novo. See

Spaulding v. Wells Fargo Bank, N.A., 

, 776 (4th Cir. 2013). In doing so, we

assume the truth of the plaintiff’s well-pled facts. See Trulock v. Freeh, 

,

399 (4th Cir. 2001). We also draw all reasonable inferences in favor of the plaintiff. See

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 

, 253 (4th Cir. 2009).

                                           III.

                                           A.

       As a threshold matter, the Commonwealth asserts that Appellant’s claims are not

cognizable under 28 U.S.C. § 2254. The Commonwealth argues that Appellant’s habeas

petition is an inappropriate vehicle for Appellant’s claims because Appellant is not

seeking immediate release from custody. In response, Appellant invites the court to read

his complaint as asserting a claim under 42 U.S.C. § 1983. The Supreme Court has held

that prisoners may challenge the constitutionality of state parole procedures pursuant to

§ 1983. See Wilkinson v. Dotson, 

, 81 (2005). Moreover, we read pro se

pleadings liberally. See Carter v. Fleming, 

, 137 (4th Cir. 2018). In line

with that principle, this court has previously read § 2254 petitions as § 1983 complaints.

See, e.g., Strader v. Troy, 

, 1269 (4th Cir. 1978). We accept Appellant’s

invitation and choose to do so here. 2


       2
        The State argued in its brief that we should not read the § 2254 petition as a
§ 1983 claim because a § 1983 claim would be dismissed immediately for failure to
exhaust. The State claimed that Appellant had not filed a complaint under the Prison
(Continued)
                                            

.

                          Appellant’s Eighth Amendment Claim

       The Eighth Amendment to the United States Constitution provides, “Excessive

bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend VIII. Over the past decade, the Supreme

Court has found that the application of certain punitive measures to juvenile offenders

violates that clause. In Roper v. Simmons, the Supreme Court held that the Eighth

Amendment prohibits capital punishment for juveniles. See 

(2005). In

Graham v. Florida, the Court found that the Eighth Amendment prohibits sentencing

juveniles who commit non-homicide offenses to life without parole. See 

(2010). Most recently, in Miller v. Alabama, the Supreme Court held that the mandatory

imposition of life without parole sentences on juvenile offenders is cruel and unusual.

See 

(2012). Although the punishment at issue in each of these cases has

varied by degrees of severity and permanence, the “foundation stone” has not wavered:

“children are constitutionally different from adults for the purposes of sentencing.” 

n.4, 471; see also Montgomery v. Alabama, 

, 732 (2016). For that




Litigation Reform Act of 1995 (“PLRA”). But after the parties filed their briefs,
Appellant moved to supplement the record with an administrative appeal from a parole
decision, which demonstrated that Appellant did in fact file a complaint in line with the
PLRA. See Mot. To Supp., Bowling v. Dir. Va. Dep’t Corr., No. 18-6170 (4th Cir. filed
Dec. 10, 2018), ECF No. 33.


                                             8
reason, certain punishments are cruel and unusual when applied to juveniles without

consideration of age-related mitigating characteristics of juveniles. See 

.

       Appellant asks this court to extend the Supreme Court’s Eighth Amendment

jurisprudence to juvenile parole proceedings and find that it is cruel and unusual

punishment for a parole board to deny juvenile offenders parole without specifically

considering age-related mitigating characteristics as a separate factor in the decision-

making process. Granting that request would require us to extend the legacy of Roper,

Graham, and Miller in two ways. First, we would have to find that juvenile-specific

Eighth Amendment protections extend to juvenile homicide offenders sentenced to life

with parole. And second, we would have to find that those protections extend beyond

sentencing proceedings. We decline to go so far.

       Significantly, the Supreme Court has placed no explicit constraints on a sentencing

court’s ability to sentence a juvenile offender to life with parole. The Court has not yet

gone so far as to require that juvenile offenders be released from prison during their

lifetime. See 

. (“A State is not required to guarantee eventual

freedom to a juvenile offender . . . .”). That is to say, the Court “[did] not foreclose” the

possibility that “the rare juvenile offender whose crime reflects irreparable corruption”

could be sentenced to life without parole. 

–80.           Rather, the

Supreme Court required that, before sentencing a juvenile to life without parole,

sentencing courts “take into account how children are different.” 

                                             9
       Indeed, our sister circuits, deciding cases in the wake of Miller, have not yet

agreed on whether, before sentencing a juvenile to a de facto life without parole sentence,

sentencing courts must “take into account how children are different.” 

courts have applied juvenile-specific Eighth Amendment protections to sentences that

amount to the practical equivalent of life without parole. See, e.g., United States v.

Grant, 

, 144 (3d Cir. 2018) (vacating a sentence under which a juvenile

would become parole eligible at 72 years old, the same age as his life expectancy), reh’g

en banc granted, opinion vacated, 

(3d Cir. 2018); McKinley v. Butler, 

, 913–14 (7th Cir. 2016) (vacating a 100-year sentence imposed on a non-

incorrigible juvenile offender); Moore v. Biter, 

, 1191–92 (9th Cir. 2013)

(finding aggregate sentence of 254 years for a juvenile non-homicide offender is

“materially indistinguishable” from the life sentence without parole and thus entitled to

protection under Graham). But other circuits have held that juvenile-specific Eighth

Amendment protections do not extend to such sentences. See, e.g., United States v.

Jefferson, 

, 1019 (8th Cir. 2016) (finding a 600-month sentence “does not

fall within Miller’s categorical ban on mandatory life-without-parole sentences”

(emphasis in original)); Bunch v. Smith, 

, 550 (6th Cir. 2012) (“The Court in

Miller did not hold that the Eighth Amendment categorically prohibits imposing a

sentence of life without parole on a juvenile offender.”) And even where circuit courts

have found that the constraints of Graham and Miller apply to de facto life without parole

sentences, those courts have only gone as far as to require parole boards to consider a

juvenile’s eligibility for parole within the juvenile’s lifetime. See, e.g., Grant, 

at 147 (“[W]e agree with the Government that the Supreme Court has not gone as far as

to say that juvenile offenders must be afforded a right to a ‘meaningful life’ after prison --

in fact, neither Miller nor Graham even guarantees that a juvenile offender will ever be

released from prison during his or her lifetime.”). Given this disagreement about the

application of the protections announced in Miller and its lineage to sentences that are

practically equivalent to life without parole, we are satisfied that those protections have

not yet reached a juvenile offender who has and will continue to receive parole

consideration.

       Further, to the extent that Graham and Miller require parole proceedings to

provide juveniles a meaningful opportunity for release after sentencing, we are not

persuaded that Appellant’s parole proceedings fell below that standard. Here, the Parole

Board has considered Appellant’s eligibility for parole annually since 2005. In doing so,

the Parole Board has considered “whether [Appellant’s] release would be compatible

with public safety and the mutual interests of society and [Appellant],” “whether

[Appellant’s] character, conduct, vocational training and other developmental activities

during incarceration reflect the probability that [he] will lead a law-abiding life in the

community and live up to all the conditions of parole,” “[Appellant’s] personal history,”

“[Appellant’s] institutional adjustment,” “[Appellant’s] change in attitude toward

[himself] and others,” “[Appellant’s] release plans,” “[Appellant’s] evaluations,”

“impressions gained . . . by the parole examiner,” and “any other information provided by

[Appellant’s] attorney, family, victims or other persons.” J.A. 88–103. The existing

factors, therefore, allowed the Parole Board to fully consider the inmate’s age at the time

                                             11
of the offense, as well as any evidence submitted to demonstrate his maturation since

then, and account for the concern at the heart of Graham and Miller: “that children who

commit even heinous crimes are capable of change.” 

.

Although the bases of the Parole Board’s denials have, so far, been linked to the severity

of his crime, the record suggests that “there is a possibility that in time, [Appellant’s]

conduct and positive adjustment while in prison, when considered with all other factors,

will outweigh the concerns that the Board has for the offense.” J.A. 76.

       Finally, the Supreme Court’s reflection on the relief provided by Miller and its

lineage persuades us that the Eighth Amendment promises juvenile offenders no further

protections than those that Appellant has already received. In Montgomery, the Supreme

Court suggested that, to remedy Miller violations retroactively, states need not resentence

every juvenile offender entitled to Miller relief. See 

.

Rather, states may remedy Miller violations by providing juvenile offenders the same

protection that Appellant has already received: parole consideration. See 

Procedural Due Process Claims

       The Due Process Clause provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. That

provision applies even to prisoners in state institutions. See Wolff v. McDonnell, 

, 556–57 (1974) (“There is no iron curtain drawn between the Constitution and

the prisons of this country.”). But because “there must be a mutual accommodation

between institutional needs and objectives and the provisions of the Constitution,” 

556, a prisoner must identify a cognizable liberty interest before he can demonstrate a

denial of due process. Wilkinson v. Austin, 

, 221 (2005) (“We need reach

the question of what process is due only if the inmates establish a constitutionally

protected liberty interest . . . .”). A prisoner can identify a cognizable liberty interest in

one of two ways. The prisoner might have a liberty interest arising from the Constitution

itself. See, e.g., Vitek v. Jones, 

, 493–94 (1980) (finding the Constitution

gives rise to a liberty interest in avoiding involuntary psychiatric treatment). Or the

prisoner might have a state-created liberty interest. See, e.g., 

–58

(finding a state-created system of time-served credit for good behavior gives rise to a

liberty interest in avoiding withdrawal from that system).

       Appellant asserts that he has a liberty interest arising from the Constitution and a

state-created liberty interest. First, Appellant claims that, as a juvenile offender, he is

“constitutionally entitled to the opportunity to reenter society as a mature adult.”

Appellant’s Br. 33. Second, Appellant claims that “Virginia’s parole scheme creates a

statutory liberty interest in parole.” 

We disagree on both accounts.

       There exists “no constitutional or inherent right” to parole proceedings.

Greenholtz v. Neb. Penal Inmates, 

, 7 (1979); see also Gaston v. Taylor, 

, 344 (4th Cir. 1991). Yet, Appellant would have this court find that the

constitutional right announced by Miller and its lineage gives rise to a constitutionally

protected liberty interest in juvenile-specific Eighth Amendment protections. However,

because we find that juvenile-specific Eighth Amendment protections do not apply to



                                             13
Appellant’s life with parole sentence, we need not decide whether the rights articulated

by Miller and its lineage trigger liberty interests.

       Even where no liberty interest in parole arises from the Constitution, “[i]f a

prisoner’s term of imprisonment can be shortened or modified by rights conveyed to him

under state law, those rights cannot be denied without due process.” 

. To establish a state-created liberty interest, Appellant must point to statutes or

regulations that give rise to an expectation of that interest. In determining whether a state

has created a liberty interest, the “threshold question” is whether such an interest “arise[s]

from state policies or regulations.” 

–22; see also Prieto v.

Clarke, 

, 249 (4th Cir. 2015). For instance, in Wolff, the Supreme Court

recognized that the state of Nebraska, through its prison regulations that systematically

reduced minimum prison sentences as a result of good prisoner behavior, created a liberty

interest in that reduction. 

–58.

       Because Virginia law gives rise to an expectation of parole proceedings, the

Commonwealth has created a liberty interest in parole consideration. 3 Nevertheless, to

satisfy the due process requirements triggered by this liberty interest, a parole board need

only provide an offender an opportunity to be heard and a “statement of reasons


       3
         Appellant points to no Virginia law or regulation that gives him a legitimate
expectation of release on parole. Under Virginia law, eligibility for parole is a
discretionary decision. See Va. Code Ann. § 53.1. And where parole eligibility hinges
on the “discretionary decisions of parole authorities,” parole applicants “possess no
entitlement, but only a desire, that a parole board will decide in their favor.” Vann v.
Angelone, 

, 522 (4th Cir. 1996).


                                              14
indicating . . . why parole has been denied.” Bloodgood v. Garraghty, 

, 473

(4th Cir. 1986). Appellant’s parole proceedings satisfied those requirements. The Parole

Board provided Appellant with annual opportunities to be heard.        It also annually

provided Appellant with a list of reasons why he was found ineligible for parole.

Accordingly, Appellant’s Fourteenth Amendment claim was properly dismissed.

                                           IV.

      For these reasons, the judgment of the district court is

                                                                           AFFIRMED.




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