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 W. Va. Code

§ 61-11-18 (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 Id. 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, 286 S.E.2d 234, 244 (W. Va. 1981). The Supreme Court of Appeals

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