In re Morgan

• Decision Date: 10 June 2013
• Docket Number: No. 13–11175.,13–11175.
• Citation: 717 F.3d 1186
• Parties: In re Michael MORGAN, Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

717 F.3d 1186

In re Michael MORGAN, Petitioner.

No. 13–11175.

United States Court of Appeals, Eleventh Circuit.

June 10, 2013.

Chet Kaufman, Randolph Patterson Murrell, Fed. Pub. Defenders, Tallahassee, FL, for Petitioner.

Herbert Stanley Lindsey, Pamela C. Marsh, U.S. Attys., Tallahassee, FL, for United States of America, Successive Habeas Respondent.

ORDER FOR REHEARING EN BANC.

Before DUBINA, Chief Judge, and TJOFLAT, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.

Prior report: 713 F.3d 1365.

BY THE COURT:

The court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the Suggestion of Rehearing En Banc is DENIED.

PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

I write to respond to the dissents filed by three of my colleagues about the denial of a rehearing en banc. I continue to adhere to the view expressed by Judges Henry Friendly and Raymond Randolph that dissents from the denial of rehearing en banc, particularly where one did not participate in the decision, are “of dubious policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir.2012) (Pryor, J., respecting the denial of rehearing en banc) (quoting United States v. N.Y., New Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir.1960) (Friendly, J., concurring in the denial of reh'g en banc, joined by Lumbard, C.J.)), and that “denials of rehearing en banc are best followed by silence,” id. (alteration omitted) (quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C.Cir.1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents should not go unanswered. Lest anyone doubt the correctness of our decision in this matter, I must respond to five misunderstandings in the dissents that follow.

I. BACKGROUND

Michael Morgan was one of “the principal leaders of an elaborate drug operation, dating back to 1988, that supplied, distributed and sold crack cocaine throughout Florida, Alabama, Mississippi, Georgia, and North and South Carolina.” United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir.1996). In the course of this drug operation, Morgan and his coconspirator, Patrick Howell, plotted to rob a drug dealer named Alfonso Tillman. Id. Another coconspirator, Paul Howell, rented a car, and Patrick Howell arranged to purchase one kilogram of cocaine from Tillman. Tillman left for the drug buy carrying the cocaine, an Uzi, and some cash. He ended up riding around in the rental car driven by Patrick Howell, with Morgan in the rear right seat. At some point during the drive, Morgan shot Tillman in the back of the head. After Tillman slumped lifelessly in his seat, Morgan put the gun to Tillman's head and fired a second shot. Patrick Howell and Morgan pushed the body out of the car and drove off with the cocaine, the Uzi, and the cash. After the murder, several coconspirators attempted to clean up the rental car, but Morgan's ex-girlfriend and the mother of his child, Tammie Bailey, rode in the rental car and noticed blood and bullet holes in the interior.

As law enforcement officials investigated the Tillman murder, Paul Howell and Morgan became concerned that Bailey would report them to the authorities. Morgan offered a friend $1,000 to lure Bailey to a highway rest stop so he could kill her. The friend, looking for a way to beg off, asked about Bailey's baby, who Morgan had fathered. Morgan told her to bring the baby, too. But the friend refused the money and began to avoid Morgan. Paul Howell wired Bailey some money to drive to Ft. Lauderdale to see him, possibly to rehearse the statement she should give to police and possibly to kill her. But Bailey spent the money on her new apartment instead and, when Paul Howell called to ask why she had not come to Ft. Lauderdale, she told him that her baby was sick and she needed a microwave to warm the baby's milk. Paul Howell then constructed a pipe bomb to kill Bailey and placed the pipe bomb in a microwave oven, which he gift-wrapped for delivery to her. Id. at 1217–18. As another man drove the package to Bailey's house, he was stopped by Florida Highway Patrol Trooper James Fulford for speeding and arrested for operating a vehicle without a license. Id. at 1216. The driver consented to a search of the vehicle and, when Trooper Fulford opened the gift-wrapped package, the microwave exploded and killed him. Id.

Morgan, along with several of his coconspirators, was convicted in 1993 of various racketeering offenses, and the Tillman murder served as one of the underlying racketeering acts. The district court sentenced Morgan to life without parole under the then-mandatory sentencing guidelines. We affirmed Morgan's convictions on direct appeal. Id. at 1220. In 2004, Morgan filed his first motion to vacate, set aside, or correct his sentence, 28 U.S.C. § 2255, and alleged a violation of his right to confrontation under the decision of the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court dismissed the motion, and we granted a certificate of appealability and affirmed. Morgan v. United States, 195 Fed.Appx. 924 (11th Cir.2006). In 2009, Morgan filed an “Appeal Motion Pursuant [to] Section 3742,” which the district court dismissed as an unauthorized second or successive motion to vacate, correct, or set aside his sentence. In 2011, Morgan filed his third motion to vacate, set aside, or correct his sentence and alleged three new claims: (1) a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) a wrongful denial of sentencing relief based on the retroactive reduction of the crack cocaine guidelines, 18 U.S.C. § 3582(c)(2); and (3) a violation of the Eighth Amendment based on the decision of the Supreme Court in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that the Eighth Amendment prohibits the imposition of a life sentence for a juvenile offender who did not commit a homicide, id. at 2034. The United States moved to dismiss the motion based on Apprendi and Graham as untimely, responded to the claim under section 3582(c)(2) on the merits, and argued that Graham was inapplicable because Morgan was sentenced to life for a homicide offense. The district court denied relief under section 3582(c)(2), and referred the two constitutional claims to a magistrate judge, before whom they remain pending.

Twenty years after his conviction and following years of unsuccessful attempts to vacate his sentence, Morgan moved this Court to grant him the extraordinary opportunity of filing a fourth motion to vacate, set aside, or correct his sentence. Based on the decision of the Supreme Court in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Morgan argued that he was entitled to relief because he was sentenced to life imprisonment without the possibility of parole under the then-mandatory sentencing guidelines. But the standard Morgan must meet to obtain leave to file his successive motion is demanding: we can grant his application only if we certify that his motion contains a claim relying on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2).

We held that Morgan could not file his second or successive motion because Miller has not been made retroactive on collateral review by the Supreme Court. A prisoner may receive permission to file a second or successive motion to vacate, set aside, or correct a sentence when a decision of the Supreme Court creates a new rule of constitutional law that “prohibit[s] a certain category of punishment for a class of defendants.” In re Moss, 703 F.3d 1301, 1303 (11th Cir.2013) (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). This precedent reflects the instruction of the Supreme Court that a rule may be made retroactive on collateral review by “[m]ultiple cases ... if the holdings in those cases necessarily dictate retroactivity,” id., and the rule that substantive rules apply retroactively, Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S.Ct. 2519, 2522, 159 L.Ed.2d 442 (2004). “[R]ules [that] prohibit[ ] a certain category of punishment for a class of defendants ... regardless of the procedures followed” are substantive. Penry, 492 U.S. at 330, 109 S.Ct. at 2953.

We held that the rule established in Miller could not be considered a substantive rule. Miller did not “h[o]ld, as a substantive matter, that the Eighth Amendment prohibits the [imposition of life without parole for juvenile offenders] such as [Morgan] regardless of the procedures followed.” See id. Instead, Miller held that “ mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment [ ]” because “[s]uch a [sentencing] scheme prevents those meting out punishment from considering a juvenile's lessened culpability and greater capacity for change, and runs afoul of [the] requirement of individualized sentencing for defendants facing the most serious penalties.” Miller, 132 S.Ct. at 2460 (emphasis added) (internal quotation marks and citation omitted). And the Supreme Court made clear that its decision “d[id] not foreclose a sentencer's ability to make t[he] judgment [that a juvenile offender should be sentenced to life imprisonment without the possibility of parole] in homicide cases.” Id. at 2469. Instead, the rule established in Miller “require [d] [the sentencer] to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime...