USCA4 Appeal: 22-6704 Doc: 32 Filed: 01/13/2025 Pg: 1 of 11

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6704

JOHNNIE FRANKLIN WILLS,

Petitioner – Appellant,

v.

KAREN PSZCZOLKOWSKI, Superintendent, Northern Correctional Facility,

Respondent – Appellee.

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)

Argued: March 8, 2023 Decided: January 13, 2025

Before AGEE and RUSHING, Circuit Judges, and Joseph DAWSON III, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Agee and Judge Dawson joined.

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. USCA4 Appeal: 22-6704 Doc: 32 Filed: 01/13/2025 Pg: 2 of 11

RUSHING, Circuit Judge:

Johnnie Franklin Wills, a state prisoner, filed a habeas petition challenging his life

sentence under West Virginia’s recidivist statute. He claims that West Virginia’s judicially

crafted test for determining whether a recidivist life sentence is proportional to the crime

is unconstitutionally vague. The West Virginia courts denied Wills relief, reasoning that

the void-for-vagueness doctrine does not extend to their proportionality test. Because that

decision was reasonable, the district court denied Wills relief. We affirm.

I.

In 2016, a West Virginia jury convicted Wills of grand larceny and conspiracy to

commit grand larceny, which are both felonies. Because Wills had previously been

convicted of eight other felonies, the court sentenced him to life imprisonment (with parole

eligibility after fifteen years) under West Virginia’s recidivist statute. See

(2000).

At that time, West Virginia’s recidivist statute stated that a person who had been

“twice before convicted” of a felony “shall be sentenced to be confined . . . for life” upon

a third felony conviction. 1

But despite the statute, not every third felony conviction

results in a life sentence. The recidivist statute must operate within the bounds of the West

Virginia Constitution, which requires that “[p]enalties shall be proportioned to the

character and degree of the offense.” W. Va. Const. art. III, § 5. Thus, a court applying

the recidivist statute may nevertheless evaluate whether a “life sentence imposed for

1 In 2020, the West Virginia legislature amended the recidivist statute, but the parties agree that amendment has no bearing on this case. 2 USCA4 Appeal: 22-6704 Doc: 32 Filed: 01/13/2025 Pg: 3 of 11

recidivism [would be] constitutionally disproportionate to the offenses upon which it is

based.” State v. Beck,

(W. Va. 1981). The Supreme Court of Appeals

of West Virginia has devised the following proportionality test: “for purposes of a life

recidivist conviction . . . , two of the three felony convictions considered must have

involved either (1) actual violence, (2) a threat of violence, or (3) substantial impact upon

the victim such that harm results.” State v. Hoyle,

, 833 (W. Va. 2019). “If

this threshold is not met, a life recidivist [sentence] is an unconstitutionally

disproportionate punishment under” the state constitution.

Wills appealed his life sentence to the Supreme Court of Appeals of West Virginia,

arguing that his felonies were not violent. That court affirmed. See State v. Wills, No. 16-

1199,

, at *4 (W. Va. Nov. 22, 2017). The court explained that the

recidivist statute imposes a life sentence on a defendant who commits three felonies, but in

some cases that sentence may “run afoul” of the proportionality principle in the West

Virginia constitution.

. Will’s sentence, however, did not violate the

proportionality principle because he was convicted of multiple crimes that “by their very

nature involve the threat of harm or violence.”

(internal quotation marks and

brackets omitted).

Wills then filed a petition for a writ of habeas corpus in state court. As relevant

here, he challenged his recidivist life sentence, arguing that the state courts’ proportionality

test was unconstitutionally void for vagueness after the United States Supreme Court’s

decisions in Johnson v. United States,

(2015), and Sessions v. Dimaya,

(2018).

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In Johnson, the Supreme Court held the residual clause of the Armed Career

Criminal Act (ACCA) void for vagueness.

. ACCA imposes an increased

mandatory minimum sentence for a defendant previously convicted of three violent

felonies, and its residual clause defined a “violent felony” as a crime punishable by more

than one year’s imprisonment that “‘involves conduct that presents a serious potential risk

of physical injury to another.’”

(emphases omitted) (quoting

(e)(2)(B)(ii)). The Court reasoned that two features of the clause, in

combination, rendered it unconstitutionally vague. First, it tied “the judicial assessment of

risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory

elements,” which left “grave uncertainty about how to estimate the risk posed by a crime.”

. Second, the clause required courts “to apply an imprecise ‘serious potential

risk’ standard” to that “judge-imagined abstraction,” resulting in “uncertainty about how

much risk it takes for a crime to qualify as a violent felony.”

. “By combining

indeterminacy about how to measure the risk posed by a crime with indeterminacy about

how much risk it takes for the crime to qualify as a violent felony, the residual clause

produce[d] more unpredictability and arbitrariness than the Due Process Clause [of the

Fifth Amendment] tolerates.”

In Dimaya, the Court extended Johnson’s reasoning to hold the residual clause of

the “crime of violence” definition in

(b) void for vagueness. 138 S. Ct. at

1212, 1215. That clause defined a “crime of violence” as “any other offense that is a felony

and that, by its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” Id. at 1211

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(internal quotation marks omitted). Because Section 16(b)’s residual clause had “the same

two features as ACCA’s, combined in the same constitutionally problematic way,” it was

also unconstitutionally vague. 2 Id. at 1213.

Wills’s habeas petition argued that, if West Virginia courts apply a “categorical

approach” to assess whether a crime is violent for purposes of their proportionality test,

then “the recidivist law fails for the same reasons as those in Johnson and Dimaya.” J.A.

257. The state court disagreed and denied him habeas relief. The Supreme Court of

Appeals of West Virginia affirmed. See Wills v. Pszczolkowski, No. 20-472,

, at *4 (W. Va. July 19, 2021). As the court explained, it has repeatedly held that

the recidivist statute is “plain and unambiguous.”

(internal quotation marks omitted);

see, e.g., State ex rel. Appleby v. Recht,

(W. Va. 2002) (per curiam).

The court distinguished Johnson and Dimaya, observing that neither case “‘involve[d] a

recidivist statute’” and “‘the principles of statutory construction contained in those cases

are inapplicable to resolve the issue presented herein: whether, under the facts and

circumstances of this case, the imposition of a life sentence under our recidivist statute is

constitutionally disproportionate.’” Wills,

, at *4 (quoting State v.

Plante, No. 19-109,

, at *5 (W. Va. Nov. 19, 2020)).

After the state court denied him relief, Wills filed a federal habeas petition under

. The district court also denied Wills relief. Applying the Antiterrorism and

2 Later, the Supreme Court held unconstitutionally vague the residual clause of the “crime of violence” definition in

(c)(3), which is “almost identical to the language” of Section 16(b). United States v. Davis,

(2019). 5 USCA4 Appeal: 22-6704 Doc: 32 Filed: 01/13/2025 Pg: 6 of 11

Effective Death Penalty Act of 1996 (AEDPA),

Stat. 1214, the

district court concluded that the decision of the Supreme Court of Appeals of West Virginia

was not contrary to or an unreasonable application of clearly established federal law.

Johnson and Dimaya were distinguishable, the district court explained, because they

involved “a statutorily-mandated aggravating factor,” which is “patently different” from

the challenged proportionality test, which “operates as a judicially-created limitation on a

recidivist sentence.” J.A. 381.

The district court granted Wills a certificate of appealability, and he appealed. We

review the district court’s denial of habeas relief de novo. Allen v. Lee,

(4th Cir. 2004) (en banc).

II.

AEDPA governs our review. Because the state court adjudicated the merits of

Wills’s constitutional claim, AEDPA bars relief unless the state court’s decision “was

contrary to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,”

(d)(1), or “was

based on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding,”

§ 2254(d)(2). See Harrington v. Richter,

(2011); Lewis v. Wheeler,

, 300–301 (4th Cir. 2010).

Wills invokes only the “unreasonable application” clause of Section 2254(d)(1).

For purposes of Section 2254(d)(1), “clearly established Federal law” includes “only the

holdings, as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall,

(2014) (internal quotation marks omitted). A state court’s ruling is an

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“unreasonable application of” those holdings only if it “‘was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Woods v. Donald,

(2015)

(quoting Richter,

). In other words, if “fairminded jurists could disagree

on the correctness of the state court’s decision,” then it was not an unreasonable application

of federal law. Richter,

(internal quotation marks omitted). Showing that

the state court’s ruling was “wrong” or even “clear error” will “not suffice.” Woods,

(internal quotation marks omitted). As the Supreme Court has explained,

Section 2254(d)(1) “corrects only the most ‘extreme malfunctions.’” Currica v. Miller,

, 724 (4th Cir. 2023) (quoting Woods,

).

Wills identifies Johnson, Dimaya, and Davis as the relevant Supreme Court

precedents for his vagueness claim. Those decisions applied the Fifth Amendment, but a

State similarly violates the Due Process Clause of the Fourteenth Amendment “when it

deprives someone of life, liberty, or property pursuant to a statute or regulation that is ‘so

vague that it fails to give ordinary people fair notice of the conduct it punishes, or so

standardless that it invites arbitrary enforcement.’” Lumumba v. Kiser,

, 284

(4th Cir. 2024) (quoting Johnson,

). The Supreme Court has applied this

standard to invalidate, as void for vagueness, “two kinds of criminal laws”: those that

“define criminal offenses” and those that “fix the permissible sentences for criminal

offenses.” Beckles v. United States,

(2017) (emphases omitted).

Wills contends that his sentence under West Virginia’s recidivist statute violates

this due process principle. But Wills does not challenge the statute itself as vague. Instead,

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Wills challenges, as void for vagueness, the proportionality test used by West Virginia

courts. He argues that by upholding that test, the Supreme Court of Appeals of West

Virginia unreasonably applied federal law as clearly established in Johnson, Dimaya, and

Davis.

We disagree. The United States Supreme Court has not applied the void-for-

vagueness doctrine to a judicially crafted proportionality test, and whether its holdings

apply to this context is not “so obvious” that “there could be no fairminded disagreement

on the question.” White,

(internal quotation marks omitted). The state

court’s ruling therefore was not an unreasonable application of clearly established federal

law, and Section 2254(d)(1) offers Wills no relief.

First, in Johnson, Dimaya, and Davis, the Supreme Court evaluated and invalidated

statutes for unconstitutional vagueness. The Court has not extended those holdings beyond

the statutory context. See, e.g., Beckles,

(refusing to extend Johnson to

the Sentencing Guidelines).

Second, whether those holdings apply to judicially crafted tests is certainly not

“beyond any possibility for fairminded disagreement.” Woods,

(internal

quotation marks omitted). Wills identifies no court that has evaluated a judicial standard

for unconstitutional vagueness. To the contrary, courts have concluded that the void-for-

vagueness doctrine does not apply to judicial decisions. See Columbia Nat. Res., Inc. v.

Tatum,

, 1106 (6th Cir. 1995) (“No precedent supports the proposition that a

party may attack a Supreme Court decision as void for vagueness.”); Weigel v. Maryland,

(D. Md. 2013) (explaining that no “controlling authority . . .

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applies the void-for-vagueness doctrine to judicial decisions”). Wills relies on Bouie v.

City of Columbia,

(1964), but that opinion did not apply the void-for-

vagueness doctrine to a judicial decision. In Bouie, the Supreme Court held that the Due

Process Clause prohibited a state court from applying its “unforeseeable judicial

enlargement of a criminal statute” retroactively.

. But Wills does not bring

a retroactivity challenge to the state court’s proportionality test; he challenges it as void for

vagueness. And as the Supreme Court has recently explained, “the void-for-vagueness and

ex post facto inquiries are analytically distinct.” Beckles,

(internal

quotation marks omitted).

Fairminded jurists could agree with the Supreme Court of Appeals’ conclusion that

the Johnson line of cases does not apply to its proportionality test. As Wills acknowledges,

the West Virginia recidivist statute unambiguously imposes a life sentence on a defendant

with three felony convictions. See State ex rel. Appleby,

. The

proportionality test does not purport to interpret the unambiguous recidivist statute. See

id.; State v. Rich, No. 21-638,

, at *2 (W.V. Dec. 6, 2022). Rather, it

is a standard by which West Virginia courts assess whether a sentence, authorized by the

recidivist statute, violates the proportionality principle of the state constitution. In other

words, the state court’s evaluation of whether a defendant’s felonies were actually or

potentially violent or resulted in harm cannot increase but only decrease his statutory life

sentence. As the district court observed, this judicially created proportionality limit on the

recidivist sentences imposed by the legislature is “wholly dissimilar from” the statutes in

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Johnson, Dimaya, and Davis, which imposed more severe punishment based on

unconstitutionally vague statutory standards. J.A. 381.

Recognizing the differences between this case and clearly established federal law,

Wills argues that the Supreme Court of Appeals of West Virginia unreasonably applied

federal law by “‘refus[ing] to extend’” the holdings of Johnson, Dimaya, and Davis to this

“‘new context where it should apply.’” Opening Br. 11 (quoting Decastro v. Branker,

(4th Cir. 2011)). Our Court used to entertain such arguments, but the

Supreme Court unequivocally shut down that practice as inconsistent with AEDPA. See

White,

; Tyler v. Hooks,

(4th Cir. 2019) (acknowledging

that “the Supreme Court has rejected [this] notion”); Gunnells v. Cartledge,

(4th Cir. 2016) (recognizing that “the Supreme Court has since abrogated [our

precedent] by rejecting the principle that a state court could be unreasonable in refusing to

extend Supreme Court precedent”). As the Supreme Court explained, “Section 2254(d)(1)

provides a remedy for instances in which a state court unreasonably applies this Court’s

precedent; it does not require state courts to extend that precedent or license federal courts

to treat the failure to do so as error.” White,

. After all, “if a habeas court

must extend a rationale before it can apply to the facts at hand, then by definition the

rationale was not clearly established at the time of the state-court decision.”

(internal

quotation marks omitted). Wills’s extension argument, therefore, is unavailing.

III.

In short, Wills has not shown that the state court’s ruling on his vagueness claim

“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,

. Having failed to satisfy this “condition for obtaining habeas corpus from a federal

court,” Wills cannot receive relief.

The judgment of the district court is

AFFIRMED.

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