FILED
NOT FOR PUBLICATION JUL 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOMINIC DEAN ADAMS, No. 13-72158
Petitioner,
v. ORDER*
UNITED STATES OF AMERICA,
Respondent.
Application to File Second or Successive
Petition Under 28 U.S.C. § 2255
Argued and Submitted July 7, 2014
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Dominic Dean Adams is a federal prisoner who pleaded guilty to two counts
of murder and to two counts of assaulting a federal detention officer. Adams was a
minor when he committed these crimes. He was sentenced to consecutive prison
terms of 396 months for the murder charges and 120 months for the assault
charges—43 years total.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
In 2013, the district court denied Adams’s two substantially identical pro se
motions under 28 U.S.C. § 2255. Adams has now filed an application for leave to
file a second or successive § 2255 motion to vacate, set aside, or correct his
sentence. We have jurisdiction under 28 U.S.C. § 2255(h).
We may grant authorization to file a second or successive § 2255 motion if
the application makes a prima facie showing that the motion contains “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); id. §
2244(b)(3)(C). A prima facie showing means “a sufficient showing of possible
merit to warrant a fuller exploration by the district court.” Woratzeck v. Stewart,
118 F.3d 648, 650 (9th Cir. 1997) (per curiam) (quoting Bennett v. United States,
119 F.3d 468, 469 (7th Cir. 1997)).
Adams contends that his sentence is contrary to Miller v. Alabama, 132 S.
Ct. 2455 (2012), which held 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.’” Id. at 2460. Even assuming that Miller
announced a new, retroactive rule, Adams’s application would fail because Miller
is inapplicable to Adams’s case. Hence, we need not decide whether Miller is
retroactive.
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Miller is inapplicable because Adams “was not sentenced to life without the
possibility of parole pursuant to a mandatory sentencing scheme.” See Bell v.
Uribe, 748 F.3d 857, 869 (9th Cir. 2013). The transcript of Adams’s sentencing
hearing demonstrates that the district court exercised its sentencing discretion after
considering several mitigating and aggravating factors; it weighed Adams’s
“deplorable childhood” against his prior criminal history and his “total indifference
to life.” See id. at 870 (“Because the sentencing judge did consider both mitigating
and aggravating factors under a sentencing scheme that affords discretion and
leniency, there [was] no violation of Miller.”). Accordingly, Adams fails to make
“a sufficient showing of possible merit to warrant a fuller exploration by the
district court.” See Woratzeck, 118 F.3d at 650 (citation omitted).
The application to file a second or successive motion under § 2255 is
DENIED.
3