               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0245n.06

                                          No. 17-2476

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                              May 16, 2018
                                                         )                DEBORAH S. HUNT, Clerk
                                                         )
In re: EDWARD OMAR SPEARMAN,                             )
                                                         )         ORDER
       Movant.                                           )
                                                         )
                                                         )


       Before: GUY, DAUGHTREY, and SUTTON, Circuit Judges.


       PER CURIAM. Edward Omar Spearman, a pro se federal prisoner, moves this court for
an order authorizing the district court to consider a second or successive motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255.
       In 1996, a jury convicted Spearman of participating in a continuing criminal enterprise
(“CCE”); two counts of drug-related murder; two counts of firearm use during a felony drug
offense; dealing in firearms without a license; conspiracy to provide false statements in
connection with the acquisition of firearms; and conspiracy to distribute cocaine. The district
court sentenced Spearman to three terms of life in prison for the CCE and two murder
convictions, followed by imprisonment for 25 years to life. United States v. Spearman, No. 96-
1887, 1998 WL 840870, at *3 (6th Cir. Nov. 17, 1998). We affirmed.
       Spearman subsequently filed a 28 U.S.C. § 2255 motion to vacate his sentence. The
district court denied the § 2255 motion. We granted Spearman a certificate of appealability as to
an ineffective-assistance claim but affirmed the district court’s judgment. United States v.
Spearman, No. 01-1378 (6th Cir. Aug. 8, 2002) (order).
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       Spearman later filed a motion under Federal Rule of Civil Procedure 60(b), arguing that
the district court erred when it denied his § 2255 motion without addressing one of his claims.
The district court denied Spearman’s Rule 60(b) motion as untimely but granted him a certificate
of appealability. We affirmed the district court’s order. Spearman v. United States, No. 07-2534
(6th Cir. Nov. 25, 2008) (order).      We also denied Spearman permission to file second or
successive § 2255 motions on three prior occasions. In re Spearman, No. 06-1120 (6th Cir. Dec.
11, 2006) (order); In re Spearman, No. 13-2382 (6th Cir. Apr. 17, 2014) (order); In re Spearman,
No. 16-1899 (6th Cir. Nov. 3, 2016) (order).
       In this motion, Spearman asserts that the life sentence imposed for the CCE conviction
amounts to cruel and unusual punishment. In support, he cites the Supreme Court decision in
Graham v. Florida, which held that the Eighth Amendment prohibits the imposition of a life
sentence without the possibility of parole for a juvenile offender who committed a non-homicide
offense. 560 U.S. 48, 74–75 (2010). Spearman explains that his indictment charged him with
engaging in a CCE from October 1987 through 1991, and that he did not turn 18 until December
1988. Although Spearman admittedly was 20 years old when he committed the two acts of
murder in furtherance of the CCE—for which he also received life sentences, he asserts that the
rule in Graham extends “to conspiracy offenses which commenced prior to a defendant’s 18th
birthday but extended beyond his 18th birthday and of which he remained a member past this
date.” A.R. 1 at 4.
       Before we will grant a movant permission to file a second or successive petition under
28 U.S.C. § 2255, he must make a prima facie showing that: (1) there is newly discovered
evidence that, if proven and viewed in light of the evidence as a whole, sufficiently establishes
that no reasonable factfinder would have found him guilty; or (2) a new rule of constitutional law
applies to his case that the Supreme Court has made retroactive to cases on collateral review.
See 28 U.S.C. §§ 2244(b)(2)(A), 2255(h); In re Green, 144 F.3d 384, 388 (6th Cir. 1998).
       Spearman takes the second route.        He argues that the Supreme Court’s decision in
Graham is a new rule of constitutional law that applies retroactively to his case.
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       We have no problem concluding that Graham announced a “constitutional” rule.
Graham is about what “the Eighth Amendment forbids.” 560 U.S. at 74. And we agree that
Graham’s rule was a “new” one.         It “was certainly 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 258, 260 (5th Cir. 2011). Finally, “with the right
combination of holdings,” the Supreme Court has made Graham’s rule “retroactive” to cases on
collateral review. Tyler v. Cain, 533 U.S. 656, 666 (2001). Courts must give retroactive effect
to new substantive rules, Teague v. Lane, 489 U.S. 288, 307 (1989), including those “prohibiting
a certain category of punishment for a class of defendants because of their status or offense,”
Penry v. Lynaugh, 492 U.S. 302, 330 (1989). And Graham prohibited a category of punishment
(life without parole) based on some defendants’ status (minors) and offense (nonhomicide
crimes). 560 U.S. at 74; see Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).
       But that’s not the end of the matter. Section 2255 requires us to certify a successive
motion “as provided in section 2244.” 28 U.S.C. § 2255(h). Section 2244, in turn, requires
Spearman to show that his “claim relies on [the] new rule” in Graham. Id. § 2244(b)(2)(A)
(emphasis added). But the “rule upon which [Spearman] relies to advance his successive habeas
petition is not the new rule of constitutional law handed down by the Supreme Court.” In re
Garner, 612 F.3d 533, 535 (6th Cir. 2010).
       Spearman argues that Graham’s rule should cover crimes (like conspiracies) that begin
before, but continue into, adulthood. See In re Dale, No. 17-1547 (6th Cir. Oct. 17, 2017). The
Supreme Court implicitly rejected that theory. It refused to consider individuals who “were
convicted for participation in unlawful conspiracies that began when they were juveniles but
continued after they reached the age of 18.” Graham, 560 U.S. at 64 n.* (majority opinion); id.
at 110 n.10 (Thomas, J., dissenting). Even if we could cram Spearman’s claim into a Graham-
shaped wineskin, he cannot rely on Graham to obtain any relief. The Court amended its opinion
“in light of new . . . information” from the Justice Department showing that no federal defendant
was “serving a life without parole sentence solely for a juvenile nonhomicide crime completed
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before the age of 18.” Id. at 64 n.*; see id. (noting the “Government was not aware of any other
federal prisoners serving life without parole sentences solely for juvenile nonhomicide crimes”)
(emphases added). In addition to the one he challenges here, Spearman is concurrently serving
two other life sentences for homicide crimes he committed as an adult.         Graham thus is
inapplicable to this case.
       We DENY Spearman’s motion for authorization.


                                            ENTERED BY ORDER OF THE COURT




                                            Deborah S. Hunt, Clerk
