“This case involves one of the most notorious serial murderers in recent history,” Virginia Solicitor General Toby J. Heytens wrote in a petition to Chief Justice John G. Roberts Jr., who hears emergency applications resulting from 4th Circuit decisions.
“The issue presented by this stay application is whether Virginia will be required to commence (and potentially conclude) the process of resentencing Malvo — risking additional trauma to his numerous victims and their families and exposing the Commonwealth to significant cost — before” the Supreme Court can decide whether the 4th Circuit got it right.
Malvo, now 33, was a 17-year-old when he and John Allen Muhammad committed what Heytens called “one of the most notorious strings of terrorist acts in modern American history.” Between Sept. 5 and Oct. 22, 2002, Muhammad and Malvo killed 10 people and wounded others in sniper attacks in Virginia, Maryland and the District of Columbia.
Muhammad was executed in 2009, but Malvo received sentences of life without parole in Virginia and Maryland.
In June, a federal appeals court said Malvo must be resentenced because of a 2012 Supreme Court decision that declared unconstitutional mandatory life sentences for juveniles without the possibility of parole.
Later, the high court ruled that its decision should be applied retroactively and said judges had to take into consideration a juvenile defendant’s ability to change before imposing a life sentence. The court previously had ruled that juveniles were no longer eligible for the death penalty.
Malvo’s lawyers petitioned Virginia courts to reconsider Malvo’s life sentences in light of the Supreme Court decisions. A three-judge appeals court panel unanimously threw out the life sentences Malvo received for his role in the shootings.
Malvo was convicted by a jury in Chesapeake and pleaded guilty in a separate case in Spotsylvania County and received life sentences in both jurisdictions. But while the judges upheld Malvo’s convictions, they ordered new sentencing hearings.
The judges — Paul V. Niemeyer, Robert B. King and Albert Diaz — wrote that their conclusions were made “not with any satisfaction but to sustain the law.”
The ruling did not apply to the six life sentences Malvo received in Maryland after he pleaded guilty to murder in that state. A judge in Montgomery County upheld those sentences last year, concluding that the sentencing judge was not required by law to impose a sentence of life without parole.
Roberts, the chief justice, could grant or deny Virginia’s request to delay the resentencing process on his own or refer it to a vote of his colleagues.
Virginia prosecutors tried unsuccessfully to get the 4th Circuit to put its ruling on hold to give the state time to appeal. Malvo’s attorneys did not take a position on the request in their response filed with the court.
The attorneys, Craig Cooley and Michael Arif, did not respond to requests for comment Thursday. Malvo is incarcerated at Red Onion State Prison in Wise County, Va.