Case: 19-14018 Date Filed: 05/26/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14018
Non-Argument Calendar
________________________
D.C. Docket No. 1:19-cv-00847-AT
DAVID TIMOTHY MOORE,
Petitioner-Appellant,
versus
WARDEN,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 26, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.
PER CURIAM:
Case: 19-14018 Date Filed: 05/26/2020 Page: 2 of 6
David Moore, a Georgia prisoner serving a life sentence, filed the instant
habeas corpus action under 28 U.S.C. § 2254 to challenge the Georgia Board of
Pardons and Paroles’ denial of his parole application. Before the district court,
Moore principally relied on Graham v. Florida, 560 U.S. 48 (2010), to argue that
the Board’s decision violated the Eighth Amendment’s prohibition on cruel and
unusual punishments. Accepting the magistrate judge’s report and
recommendation, the district court held that Graham did not apply because
whereas the Court there limited its decision to life-without-parole sentences,
Moore received a life-with-the-possibility-of-parole sentence and, indeed, had been
considered for parole. The district court further held that Moore’s parole
eligibility—pursuant to which he had been considered and would be considered
again—satisfied the Graham Court’s observation that states must give juvenile
defendants sentenced to life for non-homicide crimes “some meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.”
560 U.S. at 75. The district court thus concluded that the magistrate judge had
correctly rejected Moore’s Graham-based claim, adopted the magistrate judge’s
report and recommendation as the court’s order, and denied Moore’s § 2254
petition.
The district court then went on, however, to grant a certificate of
appealability using the following language: “Having so ruled . . . this Court finds
2
Case: 19-14018 Date Filed: 05/26/2020 Page: 3 of 6
reasonable jurists could debate whether [Moore’s] argument, that he has been
required to serve thirty-two years while defendants convicted of murder committed
as adults who have received life sentences have been released on parole after
shorter periods of incarceration, entitles him to relief under the Constitution.”
We review the district court’s denial of a habeas petition de novo. Wilson v.
Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1320 (11th Cir. 2018). Our scope
of review is clear—although pro se pleadings and briefs such as Moore’s are
liberally construed, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), our
review is restricted to issues specified in the certificate of appealability, Kuenzel v.
Allen, 488 F.3d 1341, 1343 (11th Cir. 2007); see also Hodges v. Att’y Gen., Fla.,
506 F.3d 1337, 1340–42 (11th Cir. 2007).
We find the district court’s COA difficult to discern. It seems designed to
tee up for appellate review an issue that is somewhat different from the Graham-
based argument that served as the primary focus of Moore’s petition. As we read
it, the COA’s language—pertaining to Moore’s contention “that he has been
required to serve thirty-two years while defendants convicted of murder committed
as adults who have received life sentences have been released on parole after
shorter periods of incarceration”—authorizes Moore to mount a challenge the
proportionality of his sentence of the sort typically associated with decisions like
Solem v. Helm, 463 U.S. 277 (1983).
3
Case: 19-14018 Date Filed: 05/26/2020 Page: 4 of 6
Moore faces two (related) problems on appeal. The first is that his briefs do
not present the sort of freestanding proportionality-based challenge that the district
court’s COA seems to authorize. Instead, Moore’s appeal focuses on a broad-
based challenge to the “manner, procedure and/or system The Board has used and
continues to use,” arguing, as he did below, that the Board’s policies and
procedures do not afford juveniles serving life sentences for non-homicide crimes a
“meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation,” as Graham requires. Br. of Petitioner at 18–19, 20. In particular,
Moore argues, as he did below, that the fact that the Board uses the same procedure
to evaluate those sentenced as juveniles and those sentenced as adults violates
Graham.
To be sure, Moore’s brief asserts at several points that he has served an
“excessive and disproportionate” sentence, but in context it is clear that those
assertions are in service of his Graham-based challenge to the Board’s policies and
procedures. His argument, that is, is not that his sentence is disproportionate and
thus unconstitutional, but rather that the Board’s policies are invalid under Graham
and have caused him to serve a disproportionate sentence. Even liberally
construing Moore’s pro se brief, we do not think it raises a freestanding
proportionality argument of the sort the COA appears to authorize. See Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
4
Case: 19-14018 Date Filed: 05/26/2020 Page: 5 of 6
Which leads us to the second problem that Moore faces. In pressing his
Graham-based argument, he seems to have strayed beyond the issue specified in
the COA. Because he—and we—may not do so, that is a sufficient reason for
refusing him relief. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th
Cir. 1998).
Having said that, out of an abundance of caution—which we exercise both
because Moore is pro se and because the district court’s COA is opaque—we
conclude that the unique circumstances of this case warrant sua sponte expansion
of the COA to include Moore’s Graham-related argument. See Mays v. United
States, 817 F.3d 728, 733 (11th Cir. 2016); Thomas v. Crosby, 371 F.3d 782, 796
(11th Cir. 2004) (“[O]ur cases establish the power of our court to add issues to a
COA sua sponte.”).
Despite reaching the merits of Moore’s Graham-based argument, however,
we reject them for the same reasons that the magistrate judge and district court
rejected them. In Graham, the Supreme Court held that “the Eighth Amendment
prohibits a State from imposing a life without parole sentence on a juvenile
nonhomicide offender.” 560 U.S. at 75. The Court expressly limited its holding to
life-without-parole sentences. Id. at 63, 74–75; see also Loggins v. Thomas, 654
F.3d 1204, 1223 (11th Cir. 2011). Moore, as we have noted, was sentenced to life
with the possibility of parole. While the Eighth Amendment prohibits states from
5
Case: 19-14018 Date Filed: 05/26/2020 Page: 6 of 6
determining at the outset that a juvenile offender will never be fit to reenter
society, “it does not require the State to release that offender during his natural
life,” so long as the state gives juvenile defendants “some meaningful opportunity
to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560
U.S. at 75.
For the reasons ably explained by the magistrate judge and the district court,
Moore has received the “meaningful opportunity” contemplated by Graham. The
parole board indicated that it considered Moore’s rehabilitative efforts in denying
him parole in 2018, will again consider Moore for parole in February 2021, and
has routinely exercised its discretion to release prisoners on parole.
The district court properly denied Moore’s petition for habeas corpus.
AFFIRMED.
6