concurring:
I concur, but write separately to point out that the question presented by this application is closer than it may first appear. The majority is correct that in In re Moss, we explained that “a rule in a criminal case is retroactive if it ‘prohibits] a certain category of punishment for a class of defendants because of their status or offense.’ ” 703 F.3d 1301, 1303 (11th Cir.2013) (quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989)). The majority is equally correct that, because Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), does not categorically bar the sentencing of juveniles to life imprisonment without the possibility of parole, this case does not fit neatly within that rule.
But the instances in which a new rule applies retroactively to cases on collateral review is not solely limited to the standard we relied upon in Moss; rather, the inquiry for determining retroactivity hinges upon whether the new rule is procedural or substantive. That is because while “[n]ew substantive rules generally apply retroactively ...[,] [n]ew rules of procedure ... do not.” Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 2522-23, 159 L.Ed.2d 442 (2004) (emphasis in original). To be sure, the rule announced in Miller, by forbidding mandatory life-without-parole sentences for juveniles and requiring “that a sentencer follow a certain process — considering an offender’s youth and attendant characteristics — before imposing a particular penalty,” 132 S.Ct. at *13692471, contains a procedural component. At the same time, by expanding the range of possible outcomes for an individual in Morgan’s position rather than simply the process by which those outcomes are reached, the rule announced in Miller arguably includes a substantive component, too. To that end, the government has taken the unusual step of conceding, in a nearly identical application currently pending in the Eighth Circuit, that “Miller’s holding that juvenile defendants cannot be subjected to a mandatory life-without-parole sentence is properly regarded as a substantive rule.” Government’s Response to Petitioner’s Application for Authorization to File a Second or Successive Motion Under 28 U.S.C. § 2255 at 6-7, Johnson v. United States, No. 12-8744 (8th Cir. Feb. 22, 2013); see also id. at 2 (“Because the United States agrees that Johnson’s reliance on Miller makes ... a prima facie showing, his motion should be granted and the case certified for filing in the district court.”). Indeed, in the wake of Miller, a defendant in Morgan’s position — who previously would have been statutorily mandated to be locked away for life without parole — would likely receive a different, and lesser, sentence. See Miller, 132 S.Ct. at 2469 (“[W]e think appropriate occasions for sentencing juveniles to this harshest possible penalty [of life without parole] will be uncommon.”). It is therefore possible that Miller announces a quasi-substantive rule retroactive to cases on collateral review or, at the very least, a procedural rule of a different stripe from those we have previously confronted.
Nonetheless, in the face of such uncertainty, I believe the wiser tack is to exercise restraint rather than to make the leap in one bound. And at least given the current state of the law, Miller does appear to fit most snugly within that class of “rules that regulate only the manner of determining the defendant’s culpability.” See Schriro, 542 U.S. at 353, 124 S.Ct. at 2523 (emphasis omitted) (explaining that such rules are procedural). I therefore agree with my colleagues, for the time being, that the -rule announced by Miller is not retroactive — at least until the Supreme Court or this court sitting en banc directs us otherwise.