In re: Tadd Vassell v.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-284
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.
On Motion for Authorization to File Successive § 2255 Motion in
the United States District Court for the Eastern District of
Virginia, at Norfolk. Rebecca Beach Smith, Chief District
Judge. (2:93-cr-00081-5)
Argued: March 19, 2014 Decided: May 6, 2014
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.
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.
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, 132 S. Ct. 2455 (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 (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
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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 (2005), made Guidelines
sentencing discretionary. We affirmed Vassell’s sentence on
appeal, United States v. Vassell, No. 97-4407, 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 (1999).
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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 F. App’x 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
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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
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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. 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 §
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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 (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. 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. 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
*
While the parties dispute whether Vassell was a juvenile
based on the fact that his conspiracy offense straddled his 18th
birthday, we assume for purposes of our discussion, but without
deciding the question, that he was a juvenile.
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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, and the rule thus became
applicable regardless of the procedure used for imposing the
sentence. Miller did not add to this right for juveniles who
committed nonhomicide crimes. To be sure, the Miller Court in
several places phrased its holding broadly to cover mandatory
life-without-parole sentences for all juvenile offenders. See,
e.g., Miller, 132 S. Ct. at 2460. But the Court elsewhere made
clear that it was retaining the distinction Graham had drawn
“between homicide and nonhomicide offenses.” Id. at 2466 n.6.
Indeed, when it compared the rule it was adopting to the one
previously recognized in Graham, the Miller Court explained that
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“Graham established one rule (a flat ban) for nonhomicide
offenses, while we set out a different one (individualized
sentencing) for homicide offenses.” Id. (emphasis added).
Thus, when Miller stated that no juvenile may receive a
mandatory life-without-parole sentence, it was stating the rule
established by Graham for nonhomicide offenses and a new rule
for homicides.
In short, regardless of how Vassell argues his claim, he
cannot justify further exploration of it by a district court.
The proposition remains fixed as a matter of law that he could
have made his claim based on the rule in Graham, which became
available to him two years earlier. Miller simply does no work
for a nonhomicide offender such as Vassell, and it therefore
cannot serve to restart the 1-year limitation period that
applies to Vassell’s proposed claim.
III
In response to the government’s argument that Vassell’s
proposed § 2255 motion would be barred by the 1-year limitation
period in § 2255(f)(3), Vassell argues that any consideration of
the statute of limitations is premature at this stage when we
are applying only the standard applicable for authorizing a
successive § 2255 motion. He relies, in this regard, on In re
McDonald, 514 F.3d 539, 543 (6th Cir. 2008), which held that §
9
2244(b) does not allow consideration of the statute of
limitations during the authorization stage.
It is true that in considering a § 2255(h) request for
authorization, we are not considering the merits of Vassell’s
proposed § 2255 motion. See In re Williams, 330 F.3d 277, 281-
82 (4th Cir. 2003). We are asked only to determine the
preliminary question of whether he can pursue a successive §
2255 motion, and that question is determined by application of a
specified, limited procedure. But nothing in that procedure
requires us to authorize a successive § 2255 motion that is
plainly barred as a matter of law.
Section 2255(h) requires a court of appeals considering
whether to authorize a second or successive § 2255 motion to
follow the gatekeeping procedure “provided in section 2244.” 28
U.S.C. § 2255(h). Section 2244, in turn, states that “[b]efore
a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” Id. §
2244(b)(3)(A). Addressing the standard to be applied, the
statute provides that “[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 it satisfies the requirements of § 2244(b), namely, as
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applicable here, that it presents a claim that “relies on a
[qualifying] new rule of constitutional law.” Id.
§ 2244(b)(3)(C), (b)(2)(A) (emphasis added). Thus, insofar as
the statute specifies that an applicant seeking to file a second
or successive § 2255 motion must make a prima facie showing that
§ 2244(b)’s requirements are satisfied, it makes such a showing
necessary; but it does not provide that such a showing is
sufficient for receiving prefiling authorization.
As such, while our primary consideration in reviewing a
request for authorization in this kind of case is whether the
applicant made the requisite prima facie showing about a new
rule of constitutional law, nothing in either § 2255 or § 2244
requires us to ignore other considerations and authorize the
filing of a successive § 2255 motion that, for instance, would
clearly be time-barred. The statute, we conclude, simply does
not require such an exercise in futility. In reaching this
conclusion, we join other courts of appeals that have recognized
as appropriate consideration of the timeliness of a successive
petition for collateral review when deciding whether to
authorize its filing. See In re Lewis, 484 F.3d 793, 795-96
(5th Cir. 2007) (per curiam); In re Hill, 437 F.3d 1080, 1083
(11th Cir. 2006) (per curiam); Johnson v. Robert, 431 F.3d 992,
993 (7th Cir. 2005) (per curiam) (concluding that “there [was]
no point in authorizing [the petitioner] to file another
11
collateral attack” “[b]ecause he waited too long”). But see In
re McDonald, 514 F.3d at 543; Ochoa v. Sirmons, 485 F.3d 538,
543-44 (10th Cir. 2007) (per curiam).
Our conclusion does not mean that we always should reach
the question of the successive motion’s timeliness at the
gatekeeping stage. In many cases, the record might not be
adequately developed to enable us to resolve disputed factual
issues or to determine whether equitable tolling should apply.
We also recognize that it would be inappropriate to deny
authorization based on a finding that the successive § 2255
motion would be time-barred without “accord[ing] the parties
fair notice and an opportunity to present their positions” on
whether the limitation period has elapsed. Day v. McDonough,
547 U.S. 198, 210 (2006); see also McMillan v. Jarvis, 332 F.3d
244, 250 (4th Cir. 2003).
But, in this case, the government raised the statute of
limitations issue in opposition to Vassell’s motion for
authorization to file a successive § 2255 motion, and Vassell
received ample opportunity to explain why the successive § 2255
motion he seeks leave to pursue would not be time-barred. In
doing so, he did not contend that the doctrine of equitable
tolling applies to his case or that the application of the
statute of limitations depends on a disputed issue of fact.
Instead, the question of whether Vassell’s § 2255 motion would
12
be time-barred turns entirely on the narrow legal issue of
whether his right first became available with the decision in
Graham, which we are able to resolve as a matter of law, and
have so done.
In sum, because the right on which Vassell’s claim
relies -- that a mandatory life-without-parole sentence imposed
on a juvenile who did not commit homicide violates the Eighth
Amendment -- was initially recognized by the Supreme Court in
Graham, not Miller, we deny his application for authorization to
file a successive § 2255 motion because the motion would be
untimely.
MOTION DENIED
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