Evans-Garcia v. United States

United States Court of Appeals
For the First Circuit
No. 13-1661
HAROLD EVANS-GARCÍA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
No. 13-1662
ERIC JOEL CARRIÓN-CRUZ,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
APPLICATIONS FOR LEAVE TO FILE A SECOND
OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255Before
Lynch, Chief Judge,
Torruella and Kayatta, Circuit Judges.
Hector L. Ramos-Vegas, Assistant Federal Public Defender,
Supervisor, Appeals Section, with whom Hector E. Guzman, Jr.,
Federal Public Defender, was on brief, for petitioners.
Robert A. Parker, Criminal Division, Appellate Section,
United States Department of Justice, with whom Rosa Emilia
Rodriguez-Velez, United States Attorney, District of Puerto Rico,
Mythili Raman, Acting Assistant Attorney General, Nelson Pérez-
Sosa, Chief, Appellate Division, United States Attorney's Office,
and Denis J. McInerney, Deputy Assistant Attorney General, were on
brief, for respondent.
February 28, 2014
-2-
KAYATTA, Circuit Judge. Harold Evans-García and Eric
Joel Carrión-Cruz are each serving life sentences without the
possibility of parole for crimes they committed when they were
younger than eighteen years old. After each of them unsuccessfully
exhausted a direct appeal and a petition for habeas relief, the
United States Supreme Court decided Miller v. Alabama, 132 S. Ct.
2455 (2012). In Miller, the Supreme Court held that the Eighth
Amendment to the United States Constitution "forbids a sentencing
scheme that mandates life in prison without possibility of parole
for juvenile offenders." Miller, 132 S. Ct. at 2469. Evans-García
and Carrión-Cruz each now wish to pursue a new habeas petition,
this time attempting to employ Miller to secure a potential
reduction in their sentences. Under the Antiterrorism and
Effective Death Penalty Act, 110 Stat. 1214 (1996), they cannot
pursue their new petitions unless we first certify that the
proposed petitions satisfy the requirements of an exception to what
is otherwise a bar on second or successive habeas petitions. 28
U.S.C. § 2255(h). For reasons described below, we grant
certification to Evans-García but deny it to Carrión-Cruz.
I. Background
Evans-García's and Carrión-Cruz's crimes are described in
our prior opinions. See United States v. Evans-García, 322 F.3d
110 (2003); United States v. Carrión-Cruz, 92 F.3d 5 (1996). In
brief, they were each convicted of a carjacking resulting in death.
-3-
Evans-García committed his crime in 1996, seven days before his
eighteenth birthday, while Carrión-Cruz was fifteen years and six
months old at the time of his crime in 1994.
At the time the petitioners were sentenced, the district
court was bound to follow the federal sentencing guidelines, which
had not yet been ruled advisory by the Supreme Court. See United
States v. Booker, 543 U.S. 220, 259 (2005). Under the guidelines,
the district court would first calculate an "offense level" between
one and forty-three, and then place the defendant in one of six
criminal history categories. See U.S. Sentencing Guidelines Manual
§§ 1B1.1, 5A (2001). Based on the calculated offense level and
criminal history category, the guidelines determined the applicable
range within which the district court was required to fix a
sentence. Id. The court could impose a sentence above or below
the range only if it found facts supporting any of several
specified grounds for departure. Id.
Evans-García's offense level and criminal history led to
a range including just one sentence: life in prison without the
possibility of parole. While the guidelines allowed for a
potential downward departure from the otherwise mandated sentence
for specified reasons not including youth, the court found none of
those reasons applicable. For Carrión-Cruz, by contrast, the
guidelines provided for a lower sentencing range of 292 to 365
months in prison, primarily because he pled guilty. However, due
-4-
to the "sordid facts of the case,"1 and even after considering the
defendant's "youth and limited intellect," the district court
decided to depart upward from the guidelines, imposing a sentence
of life without parole. Carrión-Cruz, 92 F.3d at 6.
II. Legal Standard
Like other federal prisoners seeking to file "second or
successive" habeas petitions, Evans-García and Carrión-Cruz must
obtain certification from a court of appeals before presenting
their petitions to the district court. See 28 U.S.C. § 2255(h).
In deciding whether to grant certification in the absence of any
newly discovered evidence, we ask whether the petition
"contain[s]... a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable." See 28 U.S.C. § 2255(h)(2). We follow
the procedural requirements laid out in section 2244, which governs
state prisoners' petitions but is cross-referenced in the section
applicable to federal prisoners such as the petitioners here. See
28 U.S.C. § 2255(h) ("A second or successive motion [by a federal
prisoner] must be certified as provided in section 2244 . . . .").
Section 2244 specifies that the court of appeals should
ask whether the "the application makes a prima facie showing" that
1
Carrión-Cruz executed an elderly couple who stopped to
assist him as he walked along the road from the scene of another
murder he had just committed.
-5-
it satisfies the applicable requirements. 28 U.S.C.
§ 2244(b)(3)(C). See also Tyler v. Cain, 533 U.S. 656, 664 (2001)
("[T]he court of appeals must determine whether the application
'makes a prima facie showing that [i]t satisfies the [second habeas
standard].'" (second and third alterations in original) (quoting 28
U.S.C. § 2244(b)(3)(C)). We have previously held that a prima
facie showing at the certification stage is "a sufficient showing
of possible merit to warrant a fuller exploration by the district
court." Rodriguez v. Superintendent, Bay State Corr. Ctr., 139
F.3d 270, 273 (1st Cir. 1998) (quoting Bennett v. United States,
119 F.3d 468, 469-70 (7th Cir. 1997)). In other words, our task is
not to decide for certain whether the petition has merit, but
rather to determine whether "it appears reasonably likely that the
application satisfies the stringent requirements for the filing of
a second or successive petition." Id. (quoting Bennett, 119 F.3d
at 469-70).
Consistent with the statute and our precedent, we find
good reason to refrain from a full inquiry at this stage, even on
a purely legal issue such as retroactivity. We generally do not
rule on questions--whether of fact or of law--until a district
court has done so, Singleton v. Wulff, 428 U.S. 106, 120 (1976), a
practice that enhances the quality of our decisions both by
allowing us to consider the district court's analysis and by
allowing the parties to hone their arguments before presenting them
-6-
to us. Moreover, in ruling on certification requests, we often
must strive to move more quickly than a full consideration of the
merits might reasonably require. See Rodriguez, 139 F.3d at 272-73(noting that section 2244(b)(3)(D) establishes a thirty day limit
for certification decisions, but holding that the limit is not
fully mandatory).
III. Analysis
A. We Accept the Government's Concession that Evans-García May
Present His Petition to the District Court.
The government concedes that Miller announced a new rule
of constitutional law that was previously unavailable. In
particular, Miller held that the Eighth Amendment to the United
States Constitution "forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders."
Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012). This rule was new
because it was "not dictated by precedent existing at the time the
defendant's conviction became final," Graham v. Collins, 506 U.S.
461, 467 (1993) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)),
and it was previously unavailable because it was issued after the
petitioners were sentenced (in 2001 and 1995, respectively) and
pursued their first habeas petitions (in 2004 and 2005,
respectively).
Whether the new rule announced in Miller has been made
-7-
retroactive by the Supreme Court presents a much closer question.2
We need not answer that question, however, because the government
has also conceded that Miller has been made retroactive, at least
under the prima facie standard. Two circuits have certified second
or successive habeas petitions based on Miller by relying, in whole
or in part, on the same government concession. See Johnson v.
United States, 720 F.3d 720, 720 (8th Cir. 2013) ("The government
here has conceded that Miller is retroactive . . . and we therefore
conclude that there is a sufficient showing . . . ."); Wang v.
United States, No. 13-2426 (2d Cir. July 16, 2013) (unpublished)
(relying in part on the government's concession to certify a second
or successive habeas petition based on Miller). The government
plays a central role in criminal law enforcement. Moreover, it is
fair to say that the government is generally resistant to
collateral review of criminal convictions and sentences.
Accordingly, one might conclude that where the government concedes
that a rule favoring prisoners has been made retroactive, that
2
The issue has divided several other circuits that have
considered it. Compare In re Pendleton, 732 F.3d 280, 282 (3d Cir.
2013) (granting a request for certification on the grounds that
petitioners had made a prima facie showing of Miller's
retroactivity); with Craig v. Cain, 2013 WL 69128, *2 (5th Cir.
Jan. 4, 2013) (per curiam) (denying a request to rehear denial of
certification on the grounds that Miller has not been made
retroactive); In re Morgan, 713 F.3d 1365, 1367-68 (11th Cir. 2013)
(denying a request for certification on the same grounds). See
also In re James, No. 12-287 (4th Cir. May 5, 2013) (unpublished)
(granting certification of a second or second successive habeas
petition based on Miller without discussion).
-8-
position has at least "possible merit . . . warrant[ing] a fuller
exploration by the district court." Rodriguez, 139 F.3d at 273(1st Cir. 1998) (internal quotation marks omitted).
"[C]ourts are generally limited to addressing the claims
and arguments advanced by the parties." Henderson, 131 S. Ct. at
1202. See also Castro, 540 U.S. at 386 (2003) (Scalia, J.,
concurring in part and concurring in the judgment) ("Our adversary
system is designed around the premise that the parties know what is
best for them, and are responsible for advancing the facts and
arguments entitling them to relief."). This is not to say that a
government concession necessarily results in an opinion adopting
the conceded position. We have sometimes chosen not to accept such
concessions, as where the government's position is clearly
erroneous and has been rejected by a lower court. See
Computervision Corp. v. C.I.R., 164 F.3d 73, 75 (1st Cir. 1999).
Here, though, the retroactivity issue is far from clear, we have no
district court order to review, and our own de novo consideration
is limited to ascertaining the presence of a prima facie
demonstration. In short, the factors that might warrant greater
reticence in giving force to a government concession weigh less in
this context. We are cognizant, too, that if we err in granting
certification, ample opportunity for correcting that error will
remain. Conversely, should we err in denying certification, Evans-
García will have no opportunity to appeal or seek rehearing en
-9-
banc. 28 U.S.C. § 2244(b)(3)(E).
Further, we see nothing in the habeas statute that would
require us to apply special scrutiny to a government concession on
retroactivity. Cf. Allen v. Parker, 2013 WL 4712735, *4 (6th Cir.
Sept. 3, 2013) (unpublished) (accepting the government's concession
on habeas review that a sentence was contrary to federal law,
although the concession was "wrong as a matter of law"). For
example, our approach does not interfere with Congress's goal of
"streamlining federal habeas proceeding." Rhines v. Weber, 544
U.S. 269, 277 (2005). Experience teaches that government
concessions of this kind are exceedingly rare, and in any event
acceptance of such concessions may do more to simplify habeas
review (as here) than to complicate it. Nor is there any apparent
absence of subject matter jurisdiction that might capture our
attention, sua sponte. See Gonzalez v. Thaler, 132 S. Ct. 641,
648-49 (2012).
We have also considered as a possible objection to our
approach the fact that the statute indicates that the court itself
must "determine" whether the petitioner has satisfied the
applicable requirements. See 28 U.S.C. § 2244(b)(3)(C) (providing
that a court should grant certification "only if it determines that
the application makes a prima facie showing."). Yet, it is always
the case that a court must determine whether the requirements of a
statute have been satisfied in deciding a case arising under that
-10-
statute. This does not mean, however, that courts cannot utilize
the waiver doctrine as a tool in making such determinations.
Indeed, in other contexts in which courts are instructed to
"determine" a matter, courts can clearly accept concessions by the
parties. For example, Federal Rule of Civil Procedure 26 provides
that where a party asserts that initial disclosures are not
appropriate in an action, "the court must determine what
disclosures, if any, are to be made and must set the time for
disclosure." Fed. R. Civ. P. 26(a)(1)(C). Yet surely courts can
(and regularly do) accept agreements between parties on these
matters with no further examination.
Evans-García's petition plainly contains--indeed relies
on--the holding in Miller outlawing mandatory sentence of life
without parole for juvenile offenders. In view of the government's
concession, we certify that Evans-García has made a prima facie
showing that this rule qualifies as a basis for habeas relief on a
second or successive petition, and so we allow him to file his
petition with the district court.
B. We Cannot Certify Carrión-Cruz's Petition.
The government argues that we should deny Carrión-Cruz's
request for certification because he, unlike Evans-García, was not
subject to a mandatory life sentence. The habeas statute does not
specify what inquiry, if any, we should make into the merits of a
petitioner's reliance on a new constitutional rule at the
-11-
certification stage. Other circuits have taken divergent
approaches. Compare In re Morris, 328 F.3d 739, 740-41 (5th Cir.
2003) (requiring the petitioner to make a prima facie showing that
he was "mentally retarded" to present a petition based on a new
constitutional rule barring execution of "mentally retarded"
individuals), In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005) (in
the same situation, requiring "some documentation of [the
petitioner's] claim that he is mentally retarded" (internal
quotation marks omitted)), and In re Holladay, 331 F.3d 1169, 1174
(11th Cir. 2003) (in the same situation, requiring evidence that
"establish[es] a reasonable likelihood that [the petition] is in
fact mentally retarded"), with Ochoa v. Sirmons, 485 F.3d 538, 545
(10th Cir. 2007) (criticizing Morris, Bowling, and Holladay for
"adding the merits component to the authorization inquiry" contrary
to the text of the statute).
We need not fully engage in this debate because there are
no disputed factual issues, such as mental capacity, that must be
resolved to determine whether Miller plausibly applies to Carrión-
Cruz's situation. Instead, Miller applies if a petitioner was
(1) younger than eighteen years old at the time of the crime, which
Carrión-Cruz clearly was; and (2) subject to a mandatory sentence
of life in prison without the possibility of parole, which we can
determine as a matter of law by reference to legal documents such
as statutes, sentencing guidelines, and court documents. See
-12-
Miller, 132 S. Ct. at 2469. We therefore need only hold that a
circuit court should deny certification where it is clear as a
matter of law, and without the need to consider contested evidence,
that the petitioner's identified constitutional rule does not apply
to the petitioner's situation. To grant certification in such
circumstances would be to send the district court on a fool's
errand.
Under this standard, we must deny Carrión-Cruz's request
because he was not sentenced pursuant to any statute or guideline
that mandated a sentence of life without parole. He pled guilty to
the same crime of which Evans-García was convicted, and he was
therefore potentially subject to a statutory punishment range of
any number of years in prison up to life, or the death penalty.
Unlike Evans-García, however, Carrión-Cruz's offense level under
the guidelines was lowered because he accepted responsibility for
his crime and pled guilty. Consequently, the guidelines range for
Carrión-Cruz was 292 months to 365 months, not life. Carrión-Cruz
received a sentence of life without parole only because the
sentencing judge had discretion to depart upwards under the
guidelines exception for crimes leading to multiple deaths and
under the general exception for "circumstances that render the case
atypical and take it out of the 'heartland' for which the
applicable guideline was designed." United States v. Carrión-Cruz,
92 F.3d 5, 6 (1st Cir. 1996). The court exercised that discretion
-13-
based on the "sordid facts of the case"--four killings, including
two of "good samaritans who had stopped to offer assistance." Id.It is true that in explaining its decision to sentence
Carrión-Cruz to life without parole, the district court did not
expressly say that it was taking into account "how children are
different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison," as the Supreme Court
required in Miller. 132 S. Ct. at 2469. As we noted in upholding
the sentence, however, the district court in exercising its
discretion "took full account" of Carrión-Cruz's youth. Carrión-
Cruz, 92 F.3d at 6. Even if such an accounting somehow fell short
under Miller--and we do not hold that it did--such a procedural
shortfall did not violate the bar on mandatory life sentences for
juveniles, the only holding of Miller that the government has
conceded qualifies for habeas relief on a second or successive
petition, and the only holding on which the petitioners have made
a prima facie showing of retroactivity. Cf. Tyler v. Cain, 533
U.S. 656, 668 (2001) (O'Connor, J., concurring) (noting that a rule
has been made retroactive by the Supreme Court if the Court
expressly declares it retroactive or issues multiple holdings that
"logically dictate . . . retroactivity"); Teague v. Lane, 489 U.S.
288, 310 (1989) (holding that new rules of criminal procedural are
generally not retroactive).
-14-
IV. Conclusion
For the foregoing reasons, we certify Evans-García's
habeas petition for consideration by the district court. We deny
certification to Carrión-Cruz.
So ordered.
-15-