In re: Robert Moss, Jr.

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# IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 12-16244-A

IN RE ROBERT WILSON MOSS, JR.,
Petitioner.

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

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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, 560 U.S. at _, 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 , 130 S.Ct. at 2022-23. The questions for us are whether
Graham established a new rule of constitutional law and if so, whether the decision

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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 recognition that the Eighth Amendment bars the
imposition of life imprisonment without parole on non-homicide offenders under
age eighteen." In re Sparks, 657 F.3d 25, 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," 560 U.S. at_, 130 S.Ct. 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," Perry 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. 335 (2002), we believe
Mr. Moss has sufficiently shown "that he might be entitled to relief under

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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 conclude that Mr. Moss has made a prima facie showing that his
application satisfies §§ 2255(h) and 2244(b)(3)(C). This is a limited determination
on our part, and, as we have explained before, "[t]he district court is to decide the [§
2255(h)] issue[s] fresh, or in the legal vernacular, de novo." Jordan v. Sec'y, Dep't
of Corr., 485 F.3d 1351, 1358 (11th Cir. 2007).

Should the district court conclude that Mr. Moss has established the statutory
requirements for filing a second or successive motion, it shall proceed to consider
the merits of the motion, along with any defenses and arguments the respondent may
raise. Any determination that the district court makes about whether Mr. Moss has
satisfied the requirements for filing a second or successive motion, and any
determination it makes on the merits, if it reaches the merits, is subject to review on
appeal from a final judgment or order if an appeal is filed. Should an appeal be
filed from the district court's determination, nothing in this order shall bind the

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merits panel in that appeal.

Mr. Moss' application for leave to file a second or successive motion to vacate
is GRANTED.