Case: 11-50447 Document: 00511604783 Page: 1 Date Filed: 09/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 16, 2011
No. 11-50447
Lyle W. Cayce
Clerk
In re: TONY SPARKS,
Movant
Motion for leave to file in
the United States District Court for the Western
District of Texas
a subsequent 28 U.S.C. § 2255 motion
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:
Tony Sparks, federal prisoner # 91929-080, moves this court for
authorization to file a successive 28 U.S.C. § 2255 motion challenging his
sentence of life imprisonment without the possibility of parole. Pursuant to 18
U.S.C. § 3006A, Sparks also moves this court to appoint as his counsel the
attorney who filed the instant motion.
Sparks was convicted in federal court, on a guilty plea, of aiding and
abetting a carjacking resulting in death, an offense he committed when he was
sixteen years old. The district court sentenced him in 2001 to life imprisonment
without the possibility of parole. Sparks has previously filed a motion under 28
U.S.C. § 2255, which was denied.
Section 2255(h) by its terms bars a federal prisoner from filing a second or
successive motion to vacate, set aside, or correct a sentence unless the
Case: 11-50447 Document: 00511604783 Page: 2 Date Filed: 09/16/2011
No. 11-50447
appropriate court of appeals certifies that the petition either (1) contains “newly
discovered evidence that, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense,” or (2)
is premised on “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
Sparks seeks our permission to file a second § 2255 motion based solely on the
grounds that the Supreme Court’s recent decision in Graham v. Florida, 130 S.
Ct. 2011 (2010), has rendered his sentence unconstitutional: the Court held
unequivocally in Graham that “[t]he Constitution prohibits the imposition of a
life without parole sentence on a juvenile offender who did not commit
homicide.” Id. at 2034. Sparks further contends, as he must under § 2255(h),
both that Graham created “a new rule of constitutional law . . . that was
previously unavailable” to him and that Graham has been “made retroactive to
cases on collateral review by the Supreme Court.” § 2255(h).
Sparks has made a sufficient prima facie showing to be permitted to
present his second § 2255 motion. First, Graham clearly states a new rule of
constitutional law that was not previously available: the case was certainly the
first recognition that the Eighth Amendment bars the imposition of life
imprisonment without parole on non-homicide offenders under age eighteen.1
Second, Graham has been “made retroactive to cases on collateral review by the
Supreme Court.”
In Tyler v. Cain, 533 U.S. 656 (2001), the Supreme Court explained that
a case is “made retroactive to cases on collateral review by the Supreme Court”
for purposes of the statutory limitations on second or successive habeas
1
Whether aiding and abetting a carjacking resulting in death constitutes “homicide”
within the meaning of Graham is a nonfrivolous question that we leave to the district court
to decide in the first instance in evaluating the motion. For the present purposes, we hold only
that Sparks has made a prima facie showing adequate to allow the district court to consider
this issue.
2
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No. 11-50447
petitions2 if and “only if this Court has held that the new rule is retroactively
applicable to cases on collateral review.” Id. at 662. The Tyler Court explained,
however, that “this Court can make a rule retroactive over the course of two
cases. . . . Multiple cases can render a new rule retroactive . . . if the holdings
in those cases necessarily dictate retroactivity of the new rule.” Id. at 666.
Sparks contends that Graham, when taken together with one of the exceptions
to the presumption of non-retroactivity articulated in Teague v. Lane, 489 U.S.
288, 307 (1989) (plurality opinion)—and reiterated most recently in Schriro v.
Summerlin, 542 U.S. 348, 351–52 (2004)—“necessarily dictate[s]” the
retroactivity of Graham’s holding. We agree.
Teague describes two types of cases as retroactive in nature. First, under
the doctrine relevant here, a rule is deemed retroactive if it places “‘certain kinds
of primary, private individual conduct beyond the power of the criminal law-
making authority to proscribe.’” 489 U.S. at 307 (quoting Mackey v. United
States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting
in part)). As the Court explained in Penry v. Lynaugh, 492 U.S. 302, 330 (1989),
overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002), this
exception should be understood as extending “not only [to] rules forbidding
criminal punishment of certain primary conduct but also rules prohibiting a
certain category of punishment for a class of defendants because of their status
or offense.” Id. at 330; see also Schriro, 542 U.S. at 351–52. Second, Teague
provides that “a new rule should be applied retroactively if it requires the
observance of those procedures that . . . are implicit in the concept of ordered
liberty.” 489 U.S. at 307 (internal quotation marks omitted).
2
Although Tyler was decided in the context of a successive petition filed by a state
prisoner and interprets 28 U.S.C. § 2244(b)(2)(A), the decision applies with equal force to the
identically-worded § 2255(h)(2) standard for successive motions to vacate, set aside, or correct
a sentence filed by federal prisoners. In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005).
3
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As the Supreme Court held in Tyler, a case that fits within this second,
amorphous Teague exception does not satisfy the test of logical necessity so as
to be inherently retroactive; in such a case, “[t]he most [the petitioner] can claim
is that, based on the principles outlined in Teague, this Court should make [the
underlying decision] retroactive to cases on collateral review”—not that logic
dictates that it already has. 533 U.S. at 666. But the opposite is generally true
with respect to the first Teague exception—the only one at issue here. In a
helpful explanatory concurrence to Tyler, Justice O’Connor explained that a
decision that fits within the first Teague exception was the paradigmatic
example of multiple holdings that together “necessarily dictate” retroactivity:
This Court . . . may “ma[k]e” a new rule retroactive through
multiple holdings that logically dictate the retroactivity of the new
rule. To apply the syllogistic relationship described [in the
dissenting opinion and approved by the majority opinion], if we hold
in Case One that a particular type of rule applies retroactively to
cases on collateral review and hold in Case Two that a given rule is
of that particular type, then it necessarily follows that the given rule
applies retroactively to cases on collateral review. In such
circumstances, we can be said to have “made” the given rule
retroactive to cases on collateral review.
The relationship between the conclusion that a new rule is
retroactive and the holdings that “ma[k]e” this rule retroactive,
however, must be strictly logical—i.e., the holdings must dictate the
conclusion and not merely provide principles from which one may
conclude that the rule applies retroactively. . . .
It is relatively easy to demonstrate the required logical relationship
with respect to the first exception articulated in Teague v. Lane.
Under this exception, “a new rule should be applied retroactively if
it places ‘certain kinds of primary, private individual conduct
beyond the power of the criminal law-making authority to
proscribe.’” When the Court holds as a new rule in a subsequent
case that a particular species of primary, private individual conduct
is beyond the power of the criminal lawmaking authority to
proscribe, it necessarily follows that this Court has “made” that new
rule retroactive to cases on collateral review. The Court has done
so through its holdings alone, without resort to dicta and without
any application of principles by lower courts.
4
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No. 11-50447
533 U.S. at 668–69 (citations omitted; emphasis in original). For this reason, the
Supreme Court’s decision in Atkins barring the execution of the mentally
retarded has been given retroactive effect, see, e.g., Bell v. Cockrell, 310 F.3d 330,
332 (5th Cir. 2002), as has the Court’s decision in Roper v. Simmons, 543 U.S.
551, 568 (2005), barring the execution of juvenile offenders, see Arroyo v. Dretke,
362 F. Supp. 2d 859, 883 (W.D. Tex. 2005), aff’d on other grounds sub nom.
Arroyo v. Quarterman, 222 F. App’x 425 (5th Cir. 2007) (unpublished)(per
curiam). Atkins and Roper both “prohibit[] a certain category of punishment for
a [certain] class of defendants because of their status or offense,” Penry, 492 U.S.
at 330; so too does Graham, which bars the imposition of a sentence of life
imprisonment without parole on a juvenile offender. By the combined effect of
the holding of Graham itself and the first Teague exception, Graham was
therefore made retroactive on collateral review by the Supreme Court as a
matter of logical necessity under Tyler.
Sparks’s motion to this court thus makes a sufficient prima facie showing
that he might be entitled to relief under Graham—a new and retroactive rule of
constitutional law—and therefore his successive motion for relief under § 2255
is permitted.3 We hereby GRANT the motion for an order authorizing Sparks
to file his second § 2255 motion with the United States District Court for the
Western District of Texas; IT IS SO ORDERED.
We DENY WITHOUT PREJUDICE Sparks’s motion for appointment of
counsel inasmuch as the limited proceedings before this court have now
concluded; Sparks may reurge this motion before the district court.
3
We once again reiterate that our inquiry is limited to whether Sparks’s “motion . . .
contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.” § 2255(h)(2). The motion surely
contains this nonfrivolous argument. We express no opinion as to the ultimate merits of the
motion.
5