In re Moss

• Decision Date: 03 January 2013
• Docket Number: No. 12–16244–A.,12–16244–A.
• Citation: 703 F.3d 1301
• Parties: In re Robert Wilson MOSS, Jr., Petitioner.
• Court: U.S. Court of Appeals — Eleventh Circuit

703 F.3d 1301

In re Robert Wilson MOSS, Jr., Petitioner.

No. 12–16244–A.

United States Court of Appeals, Eleventh Circuit.

Jan. 3, 2013.

Robert Moss, Jr., Atlanta, GA, pro se.

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255(h).

Before CARNES, PRYOR and JORDAN, Circuit Judges.

JORDAN, Circuit Judge:

Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Robert Wilson Moss, Jr. has filed an application seeking an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence. Such authorization may be granted only if we certify that the second or successive motion contains a claim involving:

(1) newly discovered evidence, that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or

(2) 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). A “court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C).

In his application, Mr. Moss indicates that he seeks to raise a single claim in his second or successive motion to vacate. Specifically, he wants to argue that his sentence of life without parole for a non-homicide narcotics offense, based on conduct committed while he was a juvenile, violates the Eighth Amendment after Graham v. Florida, 560 U.S. –––, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which he contends established a new rule of constitutional law that is retroactively applicable on collateral review. In Graham, the Supreme Court held that the Eighth Amendment “prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, 130 S.Ct. at 2034. In so holding, the Court explained that the “case implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes.” Id. at 2022–23. The questions for us are whether Graham established a new rule of constitutional law and if so, whether the decision applies retroactively to cases on collateral review. As explained below, we answer both questions affirmatively.

First, Graham set out a new rule of constitutional law that was not previously available. The “case was the first recognitionthat the Eighth Amendment bars the imposition of life imprisonment without parole on non-homicide offenders under age eighteen.” In re Sparks, 657 F.3d 258, 260 (5th Cir.2011).

Second, Mr. Moss has made a prima facie showing that Graham has been made retroactively applicable by the Supreme Court to cases on collateral review. The Court has told us that it can make a case retroactive on collateral review through a single express holding or by “[m]ultiple cases ... if the holdings in those cases necessarily dictate retroactivity of the new rule.” Tyler v. Cain, 533 U.S. 656, 666, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Because Graham “implicates a particular type of sentence as it applies to an entire class of offenders who have committed a range of crimes,” 130 S.Ct. at 2022–23, and because generally a rule in a criminal case is retroactive if it “prohibit[s] a certain category of punishment for a class of defendants because of their status or offense,” Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 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), we believe Mr. Moss has sufficiently shown “that he might be entitled to relief under Graham[.]” In re Sparks, 657 F.3d at 262.See Loggins v. Thomas, 654 F.3d 1204, 1221 (11th Cir.2011) (“[T]he Teague non-retroactivity doctrine has two exceptions, and one of them fits the rule announced in Graham. The exception that fits is the one for new rules ‘prohibiting a certain category of punishment for a class of defendants because of their status or offense.’ ”) (quoting Penry, 492 U.S. at 330, 109 S.Ct. at 2953).

In sum, we...