In re Vassell, 13–284.

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: NIEMEYER
• Citation: In re Vassell, 751 F.3d 267 (4th Cir. 2014)
• Decision Date: 06 May 2014
• Docket Number: No. 13–284.,13–284.
• Parties: In re Tadd Errol VASSELL, a/k/a Todd Errol Vassell, a/k/a Chris Daley, a/k/a Michael Derwitt, a/k/a Andre Nunes, a/k/a Corey Ryant, a/k/a Eric Scott, Movant.

751 F.3d 267

In re Tadd Errol VASSELL, a/k/a Todd Errol Vassell, a/k/a Chris Daley, a/k/a Michael Derwitt, a/k/a Andre Nunes, a/k/a Corey Ryant, a/k/a Eric Scott, Movant.

No. 13–284.

United States Court of Appeals, Fourth Circuit.

Argued: March 19, 2014.

Decided: May 6, 2014.

ARGUED:Bryan Scott Gowdy, Creed & Gowdy, PA, Jacksonville, Florida, for Movant. Richard Daniel Cooke, Office of the United States Attorney, Richmond, Virginia, for Respondent. ON BRIEF: Dana J. Boente, Acting United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Respondent.

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Motion denied by published opinion. Judge NIEMEYER wrote the opinion, in which Judge AGEE and Senior Judge HAMILTON joined.

NIEMEYER, Circuit Judge:

Tadd Vassell was convicted in 1997 of conspiracy to traffic in controlled substances and sentenced to a mandatory term of life imprisonment without parole. His participation in the conspiracy began when he was 17 years old and continued until after he had turned 18. Following his conviction, Vassell filed several motions under 28 U.S.C. § 2255 to challenge his sentence, and all were dismissed or denied.

On June 25, 2012, the United States Supreme Court decided Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), holding that a mandatory life-without-parole sentence imposed on a juvenile homicide offender violates the Eighth Amendment. Within one year of that decision, on June 24, 2013, Vassell filed this motion under § 2255(h), seeking authorization to file a successive § 2255 motion that claims reliance on Miller as “a new rule of constitutional law.” 28 U.S.C. § 2255(h)(2).

We deny Vassell's motion for authorization. Even assuming that Vassell qualifies as a juvenile offender, his proposed § 2255 motion would necessarily rely on a right that became available to him in 2010 with the Supreme Court's decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which held that sentencing a juvenile who did not commit a homicide to life imprisonment without parole violates the Eighth Amendment, and not on Miller, which extended the Graham rule to prohibit mandatory life-without-parole sentences for juveniles convicted of committing homicide. And because Graham was decided more than one year before Vassell filed this § 2255(h) motion, the successive § 2255 motion he seeks leave to file would be barred by the applicable 1–year statute of limitations in 28 U.S.C. § 2255(f)(3). We therefore decline to authorize its filing.

I

Vassell's 1997 conspiracy conviction was based on his participation in a drug-trafficking conspiracy that began in December 1990 and continued until August 1992. As Vassell was born in August 1973, he was 17 for the first eight months of the conspiracy, and 18 thereafter. Based on drug amounts distributed by members of the conspiracy both before and after Vassell turned 18, as well as on certain enhancements that applied under the Sentencing Guidelines, the district court was required by the Guidelines to impose a life sentence without parole. That sentence was imposed before the Supreme Court, in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), made Guidelines sentencing discretionary. We affirmed Vassell's sentence on appeal, United States v. Vassell, No. 97–4407, 163 F.3d 600, 1998 WL 637419, at *4 (4th Cir. Sept. 11, 1998) (per curiam), and the Supreme Court denied Vassell's petition for a writ of certiorari, Vassell v. United States, 525 U.S. 1113, 119 S.Ct. 887, 142 L.Ed.2d 786 (1999).

About one year later, Vassell filed his first § 2255 motion, arguing in part that his defense counsel was ineffective for failing to seek a downward departure based on his age. The district court denied the motion, and we dismissed his appeal. See United States v. Vassell, 22 Fed.Appx. 193 (4th Cir.2001) (per curiam). Thereafter, Vassell filed three pro se motions for leave to file a successive § 2255 motion, each of which we dismissed or denied.

Based on the Supreme Court's 2012 decision in Miller, which, Vassell argues, made available a new rule of constitutional law applicable to him, Vassell filed the current motion under § 2255(h) seeking authorization to file a successive § 2255 motion in the district court. He attached a copy of his proposed § 2255 motion as an exhibit. His motion was filed within one year of when Miller was decided.

II

While a federal inmate may file one § 2255 motion to “vacate, set aside or correct [his] sentence” after his judgment of conviction has become final, 28 U.S.C. § 2255(a), he must obtain authorization from “a panel of the appropriate court of appeals” before presenting “[a] second or successive motion,” id. § 2255(h); see also Rules Governing Section 2255 Proceedings, Rule 9. And § 2255(h) provides that “[a] second or successive motion must be certified as provided in section 2244 ... to contain” either “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (not applicable here) “newly discovered evidence” bearing on the defendant's actual innocence. 28 U.S.C. § 2255(h) (emphasis added). Section 2255(h) thus incorporates the prefiling authorization procedure established in § 2244 for state prisoners' second or successive habeas corpus applications. Under this procedure, “[t]he 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 [§ 2244(b) ]”—namely, as relevant here, that the application presents a claim that “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id. § 2244(b)(3)(C), (b)(2)(A).

Vassell contends that his § 2255(h) motion satisfies these requirements in that he has made a prima facie showing that (1) Miller recognized a qualifying new rule of constitutional law and (2) the claim he sets forth in his proposed § 2255 motion relies on Miller, thus satisfying the new rule criterion in 28 U.S.C. § 2244(b)(2)(A), (b)(3)(C) and warranting “a fuller exploration” by the district court. He bases his argument on the breadth of Miller's holding that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’ ” Miller, 132 S.Ct. at 2460.

The government concedes that Miller established “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), 2244(b)(2)(A). But it argues that Miller's new rule does not apply to Vassell for two reasons. First, it asserts that because Vassell continued in the conspiracy past his 18th birthday, he does not qualify as a juvenile offender who can benefit from Miller. Second, it argues that even if Vassell does qualify as a juvenile offender, Miller only recognized a new rule for juvenile homicide offenders. Because Vassell is serving a life-without-parole sentence for a nonhomicide crime, his claim—that he is entitled to resentencing based on his age when he committed the offense—became available with the Supreme Court's 2010 decision in Graham, which held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham, 560 U.S. at 82, 130 S.Ct. 2011. Because the Graham rule first became available to Vassell in 2010, the government argues, his proposed § 2255 motion would be time-barred by the 1–year limitation period in § 2255(f)(3), which runs from “the date on which the right asserted was initially recognized by the Supreme Court.”

The question of whether Vassell's proposed § 2255 motion would be time-barred thus depends in the first instance on when the Supreme Court “initially recognized” the right Vassell seeks leave to assert—if in Graham, the motion would be beyond the 1–year period of limitation; if in Miller, it would be timely.

The Supreme Court's Eighth Amendment jurisprudence with respect to juveniles ^* is articulated in three recent cases—the 2005 decision in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); the 2010 decision in Graham; and the 2012 decision in Miller. In Roper, the Court held that the death penalty cannot be imposed on juvenile offenders, recognizing “the diminished culpability of juveniles” “by reason of [their] youth and immaturity.” Roper, 543 U.S. at 571, 125 S.Ct. 1183. In Graham, the Court held that juveniles who committed nonhomicide offenses may not be sentenced to life without parole. Graham, 560 U.S. at 74–75, 130 S.Ct. 2011. That holding left open the possibility that a juvenile who committed a homicide could still be given a life-without-parole sentence. That possibility, however, was narrowed by Miller, which held that a juvenile who committed homicide cannot be sentenced to a mandatory life-without-parole sentence. Miller, 132 S.Ct. at 2467. The Miller holding still leaves open the possibility that a juvenile who committed homicide can be sentenced to life without parole so long as the sentence is not mandatory but is imposed through an individualized procedure. Id. at 2469, 2471.

Vassell did not commit homicide, but he did receive a mandatory sentence of life without parole. He claims that he should at least have received an individualized life sentence—not a mandatory one—for his nonhomicide crime, grounding his argument on Miller. But the rule governing his claim first became available to him with the 2010 decision in Graham.Graham prohibited imposing any sentence of life without parole—mandatory or individualized—for juveniles convicted of committing nonhomicide offenses,...