In Re: Jermon Clark ( 2014 )

Case: 13-40729 Document: 00512526327 Page: 1 Date Filed: 02/07/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-40729 FILED
February 7, 2014
Lyle W. Cayce
In re: JERMON RODRIGUEZ CLARK, Clerk
Movant
Motion for an order authorizing
the United States District Court for the Eastern
District of Texas to consider
a successive 28 U.S.C. § 2255 motion
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
Jermon Rodriguez Clark, federal prisoner # 04709-078, moves for
authorization to file a successive 28 U.S.C. § 2255 motion challenging his 600-
month sentence. In 1995, Clark pleaded guilty to carjacking resulting in death
in violation of 18 U.S.C. § 2119, and possession of a firearm during a crime of
violence in violation of 18 U.S.C. § 924(c)(1). He was fifteen years old at the
time of the offense. Clark was sentenced to 540 months on the carjacking count
and 60 months on the firearms count, to be served consecutively. 1 He now
argues that Miller v. Alabama, 132 S. Ct. 2455 (2012), announced a new rule
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1Given the procedural posture of the motion, we have minimal information regarding
Clark’s sentencing proceedings. However, we do note that Clark was sentenced prior to
United States v. Booker, 543 U.S. 220 (2005), when the United States Sentencing Guidelines
were mandatory, see, e.g., id. at 233-34.
 Case: 13-40729 Document: 00512526327 Page: 2 Date Filed: 02/07/2014
No. 13-40729
of constitutional law made retroactively applicable on collateral review by the
Supreme Court, and that Miller renders his sentence unconstitutional. The
government does not oppose Clark’s motion.
We have already held that Clark’s co-defendant made the required prima
facie showing that his motion satisfied the standards for filing a successive
petition under 28 U.S.C. § 2255(h). See In re Simpson, No. 13-40718, slip op.
at 2 (5th Cir. Feb. 7 2014). In that case, we granted leave to Clark’s co-
defendant, Torvos Simpson, to file a successive § 2255 motion based on Miller.
While Clark’s case is distinguishable from Simpson’s, as Clark did not receive
a life sentence without parole, we nonetheless conclude that he has also met
the minimal prima facie standard. See Reyes-Requena v. United States, 243
F.3d 893, 897-99 (5th Cir. 2001) (holding that the prima facie standard is
incorporated into § 2255). Although there is some doubt as to whether Miller
applies to a term-of-years sentence, even a lengthy one like Clark’s, those
arguments have not been presented to us, given the minimal proceedings thus
far. We conclude that Clark has made “a sufficient showing of possible merit
to warrant a fuller exploration by the district court.” Reyes-Requena, 243 F.3d
at 899 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).
We GRANT Clark’s motion for authorization to file a successive § 2255
motion in the district court. As with our grant in Simpson, the grant is,
however, “tentative” to the extent that “the district court must dismiss the
motion that we have allowed the applicant to file, without reaching the merits
of the motion, if the court finds that the movant has not satisfied the
requirements for the filing of such a motion.” Reyes-Requena, 243 F.3d at 899
(quoting Bennett, 119 F.3d at 470); see also In re Morris, 328 F.3d 739, 741 (5th
Cir. 2003).
2