             Case: 13-11175     Date Filed: 06/10/2013   Page: 1 of 42


                                                                   [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT

                                   __________

                                   No. 13-11175
                                   __________


In re: MICHAEL MORGAN,

                                                   Petitioner.


                                _______________

                     ORDER FOR REHEARING EN BANC
                            _______________


Before DUBINA, Chief Judge, TJOFLAT, CARNES, BARKETT, HULL,
MARCUS, WILSON, PRYOR, MARTIN and JORDAN, Circuit Judges.

BY THE COURT:

      The court having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular active service not

having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure), the

Suggestion of Rehearing En Banc is DENIED.



                                      s/ JOEL F. DUBINA
                                      CHIEF JUDGE
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PRYOR, Circuit Judge, respecting the denial of rehearing en banc:

      I write to respond to the dissents filed by three of my colleagues about the

denial of a rehearing en banc. I continue to adhere to the view expressed by Judges

Henry Friendly and Raymond Randolph that dissents from the denial of rehearing

en banc, particularly where one did not participate in the decision, are “of dubious

policy,” United States v. Shaygan, 676 F.3d 1237, 1238 (11th Cir. 2012) (Pryor, J.,

respecting the denial of rehearing en banc) (quoting United States v. N.Y., New

Haven & Hartford R.R. Co., 276 F.2d 525, 553 (2d Cir. 1960) (Friendly, J.,

concurring in the denial of reh’g en banc, joined by Lumbard, C.J.)), and that

“denials of rehearing en banc are best followed by silence,” id. (alteration omitted)

(quoting Indep. Ins. Agents of Am. v. Clarke, 965 F.2d 1077, 1080 (D.C. Cir.

1992) (Randolph, J.)). But my colleagues do not share that view, and their dissents

should not go unanswered. Lest anyone doubt the correctness of our decision in

this matter, I must respond to five misunderstandings in the dissents that follow.

                                I. BACKGROUND

      Michael Morgan was one of “the principal leaders of an elaborate drug

operation, dating back to 1988, that supplied, distributed and sold crack cocaine

throughout Florida, Alabama, Mississippi, Georgia, and North and South

Carolina.” United States v. Mothersill, 87 F.3d 1214, 1217 (11th Cir. 1996). In

the course of this drug operation, Morgan and his coconspirator, Patrick Howell,

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plotted to rob a drug dealer named Alfonso Tillman. Id. Another coconspirator,

Paul Howell, rented a car, and Patrick Howell arranged to purchase one kilogram

of cocaine from Tillman. Tillman left for the drug buy carrying the cocaine, an

Uzi, and some cash. He ended up riding around in the rental car driven by Patrick

Howell, with Morgan in the rear right seat. At some point during the drive,

Morgan shot Tillman in the back of the head. After Tillman slumped lifelessly in

his seat, Morgan put the gun to Tillman’s head and fired a second shot. Patrick

Howell and Morgan pushed the body out of the car and drove off with the cocaine,

the Uzi, and the cash. After the murder, several coconspirators attempted to clean

up the rental car, but Morgan’s ex-girlfriend and the mother of his child, Tammie

Bailey, rode in the rental car and noticed blood and bullet holes in the interior.

      As law enforcement officials investigated the Tillman murder, Paul Howell

and Morgan became concerned that Bailey would report them to the authorities.

Morgan offered a friend $1,000 to lure Bailey to a highway rest stop so he could

kill her. The friend, looking for a way to beg off, asked about Bailey’s baby, who

Morgan had fathered. Morgan told her to bring the baby, too. But the friend

refused the money and began to avoid Morgan. Paul Howell wired Bailey some

money to drive to Ft. Lauderdale to see him, possibly to rehearse the statement she

should give to police and possibly to kill her. But Bailey spent the money on her

new apartment instead and, when Paul Howell called to ask why she had not come

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to Ft. Lauderdale, she told him that her baby was sick and she needed a microwave

to warm the baby’s milk. Paul Howell then constructed a pipe bomb to kill Bailey

and placed the pipe bomb in a microwave oven, which he gift-wrapped for delivery

to her. Id. at 1217–18. As another man drove the package to Bailey’s house, he

was stopped by Florida Highway Patrol Trooper James Fulford for speeding and

arrested for operating a vehicle without a license. Id. at 1216. The driver

consented to a search of the vehicle and, when Trooper Fulford opened the gift-

wrapped package, the microwave exploded and killed him. Id.

      Morgan, along with several of his coconspirators, was convicted in 1993 of

various racketeering offenses, and the Tillman murder served as one of the

underlying racketeering acts. The district court sentenced Morgan to life without

parole under the then-mandatory sentencing guidelines. We affirmed Morgan’s

convictions on direct appeal. Id. at 1220. In 2004, Morgan filed his first motion to

vacate, set aside, or correct his sentence, 28 U.S.C. § 2255, and alleged a violation

of his right to confrontation under the decision of the Supreme Court in Crawford

v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). The district court dismissed

the motion, and we granted a certificate of appealability and affirmed. Morgan v.

United States, 195 Fed. App’x 924 (11th Cir. 2006). In 2009, Morgan filed an

“Appeal Motion Pursuant [to] Section 3742,” which the district court dismissed as

an unauthorized second or successive motion to vacate, correct, or set aside his

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sentence. In 2011, Morgan filed his third motion to vacate, set aside, or correct his

sentence and alleged three new claims: (1) a violation of Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000); (2) a wrongful denial of sentencing relief

based on the retroactive reduction of the crack cocaine guidelines, 18 U.S.C. §

3582(c)(2); and (3) a violation of the Eighth Amendment based on the decision of

the Supreme Court in Graham v. Florida, __ U.S. __, 130 S. Ct. 2011 (2010), that

the Eighth Amendment prohibits the imposition of a life sentence for a juvenile

offender who did not commit a homicide, id. at __, 130 S. Ct. at 2034. The United

States moved to dismiss the motion based on Apprendi and Graham as untimely,

responded to the claim under section 3582(c)(2) on the merits, and argued that

Graham was inapplicable because Morgan was sentenced to life for a homicide

offense. The district court denied relief under section 3582(c)(2), and referred the

two constitutional claims to a magistrate judge, before whom they remain pending.

      Twenty years after his conviction and following years of unsuccessful

attempts to vacate his sentence, Morgan moved this Court to grant him the

extraordinary opportunity of filing a fourth motion to vacate, set aside, or correct

his sentence. Based on the decision of the Supreme Court in Miller v. Alabama, __

U.S. __, 132 S. Ct. 2455 (2012), Morgan argued that he was entitled to relief

because he was sentenced to life imprisonment without the possibility of parole

under the then-mandatory sentencing guidelines. But the standard Morgan must

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meet to obtain leave to file his successive motion is demanding: we can grant his

application only if we certify that he has made a prima facie showing that his

motion contains a claim relying on “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).

      We held that Morgan could not file his second or successive motion because

Miller has not been made retroactive on collateral review by the Supreme Court. A

prisoner may receive permission to file a second or successive motion to vacate,

set aside, or correct a sentence when a decision of the Supreme Court creates a new

rule of constitutional law that “prohibit[s] a certain category of punishment for a

class of defendants.” In re Moss, 703 F.3d 1301, 1303 (11th Cir. 2013) (quoting

Penry v. Lynaugh, 492 U.S. 302, 330, 109 S. Ct. 2934, 2953 (1989), abrogated on

other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002)). This

precedent reflects the instruction of the Supreme Court that a rule may be made

retroactive on collateral review by “[m]ultiple cases . . . if the holdings in those

cases necessarily dictate retroactivity,” id., and the rule that substantive rules apply

retroactively, Schriro v. Summerlin, 542 U.S. 348, 351–52, 124 S. Ct. 2519, 2522

(2004). “[R]ules [that] prohibit[] a certain category of punishment for a class of

defendants . . . regardless of the procedures followed” are substantive. Penry, 492

U.S. at 330, 109 S. Ct. at 2953.

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      We held that the rule established in Miller could not be considered a

substantive rule. Miller did not “h[o]ld, as a substantive matter, that the Eighth

Amendment prohibits the [imposition of life without parole for juvenile offenders]

such as [Morgan] regardless of the procedures followed.” See id. Instead, Miller

held that “mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment[]” because “[s]uch a [sentencing]

scheme prevents those meting out punishment from considering a juvenile’s

lessened culpability and greater capacity for change, and runs afoul of [the]

requirement of individualized sentencing for defendants facing the most serious

penalties.” Miller, 132 S. Ct. at 2460 (emphasis added) (internal quotation marks

and citation omitted). And the Supreme Court made clear that its decision “d[id]

not foreclose a sentencer’s ability to make t[he] judgment [that a juvenile offender

should be sentenced to life imprisonment without the possibility of parole] in

homicide cases.” Id. at 2469. Instead, the rule established in Miller “require[d]

[the sentencer] to take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in prison.”

Id. “[R]ules that regulate only the manner of determining the defendant’s

[sentence] are procedural.” See Summerlin, 542 U.S. at 353, 124 S. Ct. at 2523.

Because the rule established in Miller is not substantive and has not otherwise been




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made retroactive by the Supreme Court, we concluded that Morgan could not bring

a second or successive motion to vacate, set aside, or correct his sentence.

                                 II. DISCUSSION

      Although the panel decision involved a straightforward application of

Supreme Court and Circuit precedent, three of my colleagues appear to

misunderstand both the decision and our governing precedents. The Supreme

Court has drawn a clear distinction between substantive and procedural rules for

the purpose of retroactive application on collateral review: substantive rules

generally apply retroactively and procedural rules generally do not.

Notwithstanding the hyperbole in the dissents, the procedural nature of the rule

established in Miller is not debatable. En banc consideration of this question

would be a waste of judicial resources.

 A. The Supreme Court Has Drawn a Clear Distinction Between Substantive and
Procedural Rules for the Purpose of Retroactive Application on Collateral Review.

      “New rules” of constitutional law do not apply retroactively to criminal

cases that have become final before the rule was announced, unless the new rule

falls within one of two narrow exceptions. See Teague v. Lane, 489 U.S. 288, 308,

109 S. Ct. 1060, 1074 (1989) (plurality opinion). The first exception permits the

retroactive application of “[n]ew substantive rules.” Summerlin, 542 U.S. at 351,

124 S. Ct. at 2522. The second exception authorizes the retroactive application of

“a small set of watershed rules of criminal procedure implicating the fundamental
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fairness and accuracy of the criminal proceeding.” Id., 124 S. Ct. at 2523 (internal

quotation marks omitted). But the Supreme Court has instructed us that “[t]his

class of rules is extremely narrow,” id., and that “[n]ew rules of procedure . . .

generally do not apply retroactively,” id.; see also Howard v. United States, 374

F.3d 1068, 1080 (11th Cir. 2004) (“The lesson of all these decisions, we believe, is

that the second Teague exception is so tight that very few new rules will ever

squeeze through it.”).

      This distinction drawn by the Supreme Court between substantive and

procedural rules makes sense. Substantive rules “apply retroactively because they

necessarily carry a significant risk that a defendant stands convicted of an act that

the law does not make criminal or faces a punishment that the law cannot impose

upon him.” Summerlin, 542 U.S. at 352, 124 S. Ct. at 2522–23 (internal quotation

marks omitted). New rules of procedure, on the other hand, “do not produce a

class of persons convicted of conduct the law does not make criminal, [or

sentenced to a punishment that the law cannot impose upon them,] but merely raise

the possibility that someone convicted [or sentenced] with use of the invalidated

procedure might have been acquitted [or sentenced] otherwise.” See id. Given this

“speculative connection” to innocence or to the receipt of a lesser sentence, id., it

makes sense not to require the federal or state governments to expend resources on

new trials and new sentencing proceedings every time that the Supreme Court

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announces a new procedural rule. Only those watershed rules of criminal

procedure that implicate the fundamental fairness and accuracy of the proceeding

deserve retroactive effect. See id., 124 S. Ct. at 2523. As the Supreme Court has

explained, “That a new procedural rule is ‘fundamental’ in some abstract sense is

not enough; the rule must be one without which the likelihood of an accurate

conviction is seriously diminished.” Id. (internal quotation marks omitted).

      And the distinction between substantive and procedural rules reflects the

interest of the state and federal courts in the finality of judgments. See Teague,

489 U.S. at 308, 109 S. Ct. at 1074. “Application of constitutional rules not in

existence at the time a conviction became final seriously undermines the principle

of finality which is essential to the operation of our criminal justice system.

Without finality, the criminal law is deprived of much of its deterrent effect.” Id.

at 309, 109 S. Ct. at 1074. “No one, not criminal defendants, not the judicial

system, not society as a whole is benefited by a judgment providing a man shall

tentatively go to jail today, but tomorrow and every day thereafter his continued

incarceration shall be subject to fresh litigation on issues already resolved.”

Mackey v. United States, 401 U.S. 667, 691, 91 S. Ct. 1160, 1179 (1971) (Harlan,

J., concurring in judgments in part and dissenting in part). And “[t]he costs

imposed upon the State[s] [and the federal government] by retroactive application

of new rules of constitutional law on habeas corpus . . . generally far outweigh the

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benefits of this application.” See Solem v. Stumes, 465 U.S. 638, 654, 104 S. Ct.

1338, 1347–48 (1984) (Powell, J., concurring in the judgment). For these reasons,

the Supreme Court has limited the application of new constitutional rules on

collateral review of criminal convictions to those rules that “necessarily carry a

significant risk that a defendant stands convicted of an act that the law does not

make criminal or faces a punishment that the law cannot impose upon him.” See

Summerlin, 542 U.S. at 352, 124 S. Ct. at 2522–23 (internal quotation marks

omitted). Miller is not that kind of rule, and Morgan may not benefit from it on

collateral review.

B. Notwithstanding the Misunderstandings in the Dissents, the Rule Established in
                            Miller Is Procedural.

      The dissents reflect an astonishing number of fundamental

misunderstandings about the circumstances in which a prisoner may obtain the

benefits of a new rule of constitutional law on federal collateral review. I count at

least five of these misunderstandings, and the error of each argument is apparent.

      First, all three of the dissenters labor under the misconception that, if a rule

might have affected the sentence imposed upon a defendant, that rule must be

substantive. Judge Barkett’s dissent argues that the rule in Miller must be

substantive because, “[b]efore Miller, a juvenile offender convicted of certain

crimes would automatically receive a sentence of life without the possibility of

parole; after Miller, the vast majority of such offenders will receive a substantively
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different and lesser sentence.” Dissenting Op. of Barkett, J., at 27. Judge Wilson

and Judge Martin’s dissent argues that, “to write off as merely procedural a new

rule that will compel a different substantive result—that is, a different, and lesser,

sentence—in the majority of cases that will follow would be to stretch the meaning

of ‘procedural’ too far.” Dissenting Op. of Wilson, J., & Martin, J., at 32–33. But

that a different result is likely under a new rule does not make that rule substantive.

Although all new constitutional rules are likely to produce different results in at

least some circumstances, the Supreme Court has explained that only some of these

rules apply retroactively. Substantive rules “apply retroactively because they

‘necessarily carry a significant risk that a defendant stands convicted of an act that

the law does not make criminal’ or faces a punishment that the law cannot impose

upon him,” Summerlin, 542 U.S. at 352, 124 S. Ct. at 2522–23 (quoting Bousley v.

United States, 523 U.S. 614, 620, 119 S. Ct. 1604, 1610 (1998) (internal quotation

marks omitted)). And a rule is substantive only if it is a “substantive categorical

guarantee[] accorded by the Constitution, regardless of the procedures followed.”

See Penry, 492 U.S. at 329, 109 S. Ct. at 2952 (emphasis added). No other kind of

rule “carr[ies] a significant risk that a defendant . . . faces a punishment that the

law cannot impose upon him.” Summerlin, 542 U.S. at 352, 124 S. Ct. at 2522–23

(emphasis added). And Miller does not implicate a substantive categorical




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guarantee because a juvenile offender may still be sentenced to life imprisonment

without the possibility of parole after Miller.

      And the speculation of the dissenters about the likely effect of Miller in any

particular case underscores the procedural nature of the rule. Judge Barkett’s

dissent speculates that Miller will result in reduced sentences for the “vast

majority” of juvenile offenders. Dissenting Op. of Barkett, J., at 27. Judge Wilson

and Judge Martin’s dissent speculates that the rule “will compel a different

substantive result . . . in the majority of cases that will follow.” Dissenting Op. of

Wilson, J., & Martin, J., at 32–33 (emphasis added). And Judge Wilson and Judge

Martin’s dissent makes much of the speculation of the majority in Miller that the

rule established in that decision would make sentences of life imprisonment for

juvenile offenders uncommon. See id. But the Supreme Court has explained that,

when the effect of a rule in any particular case is speculative, the rule is procedural.

See Summerlin, 542 U.S. at 352, 124 S. Ct. at 2523. We can only speculate about

the effect of Miller in any particular case because, after that decision, juvenile

offenders may still be sentenced to life imprisonment without the possibility of

parole. Judge Wilson and Judge Martin argue that “[t]here is nothing ‘speculative’

about the fact that [these juvenile offenders], judged by today’s standards, would

likely receive a lesser sentence.” Dissenting Op. of Wilson, J., & Martin, J., at 34




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(emphasis added). But that statement is speculative on its face, and a rule whose

effect is merely “likely” is procedural, not substantive.

      Second, the dissenters argue that Miller may be substantive because it

expands the possible sentencing outcomes for juvenile offenders who were

previously subject to mandatory life imprisonment without the possibility of

parole, but that argument is foreclosed by Supreme Court precedent. Judge

Barkett’s dissent asserts that the rule in Miller is substantive because it “expanded

the range of possible substantive sentencing outcomes for juvenile offenders.”

Dissenting Op. of Barkett, J., at 27. Judge Wilson and Judge Martin’s dissent

asserts less confidently that, “[b]y altering the range of possible outcomes for a

juvenile sentenced to life without parole under a mandatory sentencing scheme,

Miller arguably heralds a substantive rule.” Dissenting Op. of Wilson, J., &

Martin, J., at 32. But the Supreme Court has explained that a new rule is

procedural, not substantive, when it does not “alter the range of conduct . . .

subjected to [a punishment],” but instead “alter[s] the range of permissible

methods for determining whether a defendant’s conduct is punishable by [that

punishment].” Summerlin, 542 U.S. at 353, 124 S. Ct. at 2523. Miller “altered

[only] the range of permissible methods for determining whether a [juvenile

offender’s] conduct is punishable by [life without parole].” See id. One cannot

reasonably contend otherwise.

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      Third, Judge Barkett’s dissent displays a fundamental misunderstanding of

the term “punishment.” Judge Barkett’s dissent argues that the rule established by

the Supreme Court in Miller is substantive and retroactive on collateral review

because it “prohibit[s] a certain category of punishment for a class of defendants

because of their status or offense.” Dissenting Op. of Barkett, J., at 26 (quoting

Penry, 492 U.S. at 330, 109 S. Ct. at 2953). But Miller did not prohibit any

category of punishment for juveniles. Punishment is defined as “[a] sanction—

such as a fine, penalty, confinement, or loss of property, right, or privilege—

assessed against a person who has violated the law.” Black’s Law Dictionary 1353

(9th ed. 2009). And Black’s Law Dictionary cross-references “punishment” with

“sentence,” which is defined as “[t]he judgment that a court formally pronounces

after finding a criminal defendant guilty; the punishment imposed on a criminal

wrongdoer <a sentence of 20 years in prison>.” Id. at 1485. Miller did not

prohibit the punishment of life imprisonment without the possibility of parole for

juvenile offenders, but only the mandatory procedure by which that punishment

had been imposed. 132 S. Ct. at 2469. The attempt of Judge Barkett’s dissent to

define the word “punishment” to include a “mandatory life sentence” is contrary to

the ordinary legal meaning of that word. See Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 73 (2012) (“[W]hen the law is the

subject, ordinary legal meaning is to be expected . . . .”). A juvenile offender who

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serves a life sentence without the possibility of parole imposed under a mandatory

sentencing scheme receives the same punishment as a juvenile offender who serves

a life sentence without the possibility of parole imposed under a discretionary

sentencing scheme.

      Fourth, Judge Wilson and Judge Martin’s dissent confuses the rules of

retroactivity that apply on federal collateral review with the rules of retroactivity

that apply to state collateral review. Their dissent argues that the issue is close

because “[t]here is great confusion amongst the courts of this country as to whether

Miller applies retroactively.” Dissenting Op. of Wilson, J., & Martin, J., at 36 &

n.2. But the vast majority of the decisions cited by the dissent for this point were

decisions by state courts on state collateral review. See id. In our system of dual

sovereignty, state courts are free to apply whatever rules about retroactivity they

prefer in their own collateral proceedings because the federal doctrine of non-

retroactivity limits only the scope of federal collateral relief. Danforth v.

Minnesota, 552 U.S. 264, 281, 128 S. Ct. 1029, 1041–42 (2008).

      The decisions cited by Judge Wilson and Judge Martin’s dissent are an

excellent example of the variety of rules that states have adopted to decide whether

to apply new rules of constitutional law retroactively on state collateral review. In

State v. Lockheart, 820 N.W.2d 769, 2012 WL 2814378, (Iowa Ct. App. July 11,

2012) (unpublished table decision), the Iowa Court of Appeals vacated a

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defendant’s sentence on state collateral review for resentencing without any

discussion of limits on the retroactive application of new constitutional rules under

Iowa law and without any discussion of Teague. Id. at *4. In State v. Simmons,

99 So. 3d 28 (La. 2012), the Supreme Court of Louisiana ordered resentencing of a

juvenile offender based on the decision of the Supreme Court in Miller, also

without any analysis of Teague. Id.; see also State v. Williams, 108 So. 3d 255,

255–56 (La. Ct. App. 2013). In Commonwealth v. Cunningham, 51 A.3d 178 (Pa.

2012), and Ex parte Maxwell, 2013 WL 458168 (Tex. Crim. App. 2013), the

Supreme Court of Pennsylvania and Court of Criminal Appeals of Texas,

respectively, have ordered further briefing on the question whether they should

apply Miller retroactively in their states on collateral review. See Cunningham, 51

A.3d at 178; Ex parte Maxwell, 2013 WL 458168, at *1. And an appellate court in

Florida has determined that Miller is a procedural rule that should not be applied

retroactively under Florida law. See Geter v. State, No. 3D12-1736, 2012 WL

4448860, at *9–*10 (Fla. Dist. Ct. App. Sept. 27, 2012).

      Judge Wilson and Judge Martin’s dissent cites decisions from only two

states that even purport to consider Teague. In one of these decisions, the

Michigan Court of Appeals reasoned that Miller is a procedural rule that is not

retroactive on federal collateral review, and then applied state rules for

retroactivity to conclude that nothing under Michigan law rendered Miller

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retroactive on state collateral review. See People v. Carp, 828 N.W.2d 685, 713–

14 (Mich. Ct. App. 2012). In three other decisions, the Illinois Court of Appeals

purported to apply the Teague analysis, but reached wildly different and, indeed,

inconsistent results: one decision held that Miller was a substantive rule under

Teague, People v. Morfin, 981 N.E.2d 1010, 1022 (Ill. App. Ct. 2012), one

decision held that Miller was a watershed rule of criminal procedure under Teague,

People v. Williams, 982 N.E.2d 181, 196 (Ill. App. Ct. 2012), and one decision

agreed with both of those conclusions, People v. Cooks, No. 1-11-2991, 2013 WL

1195435, at *5 (Ill. Ct. App. 2012), even though the Supreme Court has made clear

that those categories are separate and distinct, Summerlin, 542 U.S. at 351–52, 124

S. Ct. at 2522–23.

      But federal courts are bound by Supreme Court precedents on the

availability of new constitutional rules to prisoners on federal collateral review.

And the only other circuit court to have addressed the question and explained its

analysis agrees that “Miller does not satisfy the test for retroactivity because it does

not categorically bar all sentences of life imprisonment for juveniles.” Craig v.

Cain, No. 12-30035, 2013 WL 69128, at *2 (5th Cir. 2013). Judge Wilson and

Judge Martin’s dissent argues that two recent orders entered by the Fourth Circuit

support their argument that the rule in Miller may be substantive, but those

unpublished orders are not persuasive. See In re Landry, No. 13-247 (4th Cir. May

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30, 2013); In re James, No. 12-287 (4th Cir. May 10, 2013). Those orders offer no

reasoning or explanation for the decisions to allow the prisoners to file second or

successive petitions. See In re Landry, No. 13-247 (4th Cir. May 30, 2013); In re

James, No. 12-287 (4th Cir. May 10, 2013). Notably, and contrary to the assertion

of the dissent, the prisoner in In re James who sought permission to file a second or

successive motion asserted that his second or successive motion involved claims

based on both “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,” and “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court of the United States, that was previously

unavailable.” See 28 U.S.C. § 2255(h). We cannot conclude, as Judge Wilson and

Judge Martin’s dissent asserts, that the Fourth Circuit held that Miller was a new

rule of constitutional law, made retroactive by the Supreme Court to cases on

collateral review, because the Fourth Circuit offered no explanation for its

decision. Contra Dissenting Op. of Wilson, J., and Martin, J., at 38–40. And in In

re Landry, the prisoner argued that the rule established in Miller was substantive

and, in the alternative, that the rule established in Miller constituted a watershed

rule of criminal procedure. See In re Landry, No. 13-247 (4th Cir. May 30, 2013).

Again, we cannot determine whether the Fourth Circuit determined that the

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prisoner had made a prima facie showing that the rule in Miller was retroactive on

collateral review because it was substantive, because it was a watershed rule of

criminal procedure, or for some other reason. These two orders and the dictum in

the footnote of a single opinion of a federal district court, see Hill v. Snyder, No.

10-14568, 2013 WL 364198, at *2 n.2 (E.D. Mich. Jan. 30, 2013), hardly support

the proposition that “great confusion” exists among the federal courts on the

retroactive application of Miller.

      Finally, my dissenting colleagues devote considerable attention to the

position taken by the United States Department of Justice in a proceeding before

the Eighth Circuit that the rule established in Miller is substantive, but that position

has no bearing on our consideration of the question. The bar on second or

successive motions is jurisdictional, see Panetti v. Quarterman, 551 U.S. 930, 942,

127 S. Ct. 2842, 2852 (2007), so we must determine whether an application to file

a second or successive motion is based on a claim involving “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). The United

States could not concede this legal issue, even if it had taken that position before

this Court. See Gilbert v. United States, 640 F.3d 1293, 1306 n.14 (11th Cir. 2011)

(citing Roberts v. Galen of Va., Inc., 525 U.S. 249. 253, 119 S. Ct. 685 687

(1999)). And the attempt of the United States to concede this jurisdictional issue

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before our Court would be of particular concern because a holding that Miller is

substantive would bind future panels in proceedings involving state prisoners.

Compare 28 U.S.C. § 2255(h)(1) with id. § 2244(b)(2)(A). If the Executive wants

to give juvenile offenders relief after Miller, he can commute the sentences of

juvenile offenders who were sentenced to life imprisonment without parole under

mandatory sentencing schemes in the federal system. See U.S. Const. Art. II, § 2.

But we cannot accept the attempt by the United States to concede a jurisdictional

issue that must be resolved to the contrary under binding precedent of the Supreme

Court.

C. En Banc Consideration of a Decision that Is Undoubtedly Correct Would Be a
                        Waste of Judicial Resources.

         Two of my colleagues, though not prepared to declare that the rule

established by Miller is substantive, argue that the matter should be considered en

banc because it presents “a question of exceptional importance,” but en banc

consideration of this issue, no matter how important, would be a waste of judicial

resources. A precedent of a panel of this Circuit is as binding as a precedent of the

en banc Court. Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001)

(“Under the well-established prior panel precedent rule of this Circuit, the holding

of the first panel to address an issue is the law of this Circuit, thereby binding all

subsequent panels unless and until the first panel’s holding is overruled by the

Court sitting en banc or by the Supreme Court.”); see also United States v. Steele,
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147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“[A] panel cannot overrule a prior

one’s holding even though convinced it is wrong.”). We have the discretion to

consider en banc an appeal or other proceeding when that consideration “is

necessary to secure or maintain uniformity of the court’s decisions” or when “the

proceeding involves a question of exceptional importance.” Fed. R. App. 35. In

my view, we should not exercise that discretion when the analysis and decision of

a panel is undoubtedly correct. The deliberation by the en banc Court on a

question that has been correctly considered and resolved by a panel would

consume precious judicial resources and result in a decision that is no more

binding or correct than the panel opinion.

      This Court often decides issues of exceptional importance without granting

en banc review. For example, when 26 states challenged the constitutionality of

the Affordable Care Act and moved this Court to grant en banc review, we denied

their request even though the challenged Act involved an unprecedented exercise

of federal power to compel citizens to purchase health insurance and to require

state governments to expand their Medicaid programs. See Fla. ex rel. Att’y Gen.

v. U.S. Dep’t of Health & Human Servs., 648 F.3d 1235, 1240–41 (11th Cir.

2011), overruled in part by Nat’l Fed’n of Indep. Bus. v. Sebelius, __ U.S. __, 132

S. Ct. 2566 (2012). And when we granted a writ of mandamus to prevent a district

court from compelling a cabinet-level official to attend a hearing when another

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presidential appointee was available to represent the agency, we did not rehear that

appeal en banc. See In re United States, 624 F.3d 1368, 1369–70 (11th Cir. 2010).

      In our democratic republic, where the right to vote is fundamental, we

routinely decide appeals about elections and voting without granting en banc

review. For example, when we preliminarily enjoined Florida from increasing its

subsidy of the campaign of a gubernatorial candidate who had accepted public

funding because the increased subsidy unfairly penalized the free speech of an

opponent who had declined public funding, we did not vote to rehear that appeal en

banc. See Scott v. Roberts, 612 F.3d 1279, 1281–82 (11th Cir. 2010). When we

upheld the Georgia law that requires voters to present photo identification to poll

workers, we did not rehear that appeal en banc. See Common Cause/Ga. v.

Billups, 554 F.3d 1340, 1345 (11th Cir. 2009). And when we affirmed first the

preliminary and later the permanent injunction against counting unverified

absentee ballots in the 1994 election of the Chief Justice of Alabama, we did not

rehear en banc either of those two appeals. See Roe v. Alabama, 68 F.3d 404, 409

(11th Cir. 1995); Roe v. Alabama, 49 F.3d 734 (11th Cir. 1995).

      We also have declined to grant en banc review in matters of church and

state. For example, when we affirmed the decision that permitted the Cobb County

Commission to continue its practice of legislative prayer to begin its meetings, we

did not rehear that appeal en banc. See Pelphrey v. Cobb Cnty., Ga., 547 F.3d

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1263, 1266–67 (11th Cir. 2008). And when we affirmed an injunction that

required the Chief Justice of Alabama to remove a monument of the Ten

Commandments from the Alabama State Judicial Building, we did not rehear that

appeal en banc. See Glassroth v. Moore, 335 F.3d 1282, 1284 (11th Cir. 2003).

      The same is true in sensitive matters of foreign relations, immigration, and

terrorism. When the Executive deported Elian Gonzalez to Cuba, after his mother

had died at sea escaping that Communist regime, we refused to rehear the denial of

the petition to review that order of deportation. See Gonzalez ex rel. Gonzalez v.

Reno, 215 F.3d 1243, 1245–46 (11th Cir. 2000). We also denied en banc review to

the appeal of a former Panamanian dictator who unsuccessfully challenged his

extradition to France. See Noriega v. Pastrana, 564 F.3d 1290, 1292 (11th Cir.

2009). And we did not rehear en banc the decisions that invalidated several

provisions of immigration laws in Alabama and Georgia. See United States v.

Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012); Ga. Latino Alliance for Human

Rights v. Governor of Ga., 691 F.3d 1250, 1269 (11th Cir. 2012); Hispanic Interest

Coal. of Ala. v. Governor of Ala., 691 F.3d 1236, 1241 (11th Cir. 2012). Nor did

we rehear en banc the decision that, for the first time among the circuit courts,

interpreted the power of Congress to define and punish “Offences against the Law

of Nations” and declared unconstitutional the Maritime Drug Law Enforcement

Act as applied to defendants who had engaged in drug trafficking in the territorial

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waters of Panama. See United States v. Bellaizac-Hurtado, 700 F.3d 1245, 1247

(11th Cir. 2012). And we denied rehearing en banc of the appeal in which we

affirmed the conviction of Jose Padilla for various offenses related to terrorism and

vacated his sentence as unreasonably lenient. See United States v. Jayyousi, 452 F.

App’x 943 (11th Cir. 2011).

      Even in matters of life and death, we rarely grant en banc review. For

example, when the parents of Terri Schiavo petitioned this Court to rehear their

appeals of the decisions not to enjoin her starvation and death, we denied their

requests, notwithstanding their obvious importance. Schiavo ex. rel. Schindler v.

Schiavo, 404 F.3d 1270 (11th Cir. 2005); Schiavo ex. rel. Schindler v. Schiavo,

403 F.3d 1261 (11th Cir. 2005). And we have reviewed dozens of death sentences

each year without rehearing those appeals en banc, save for the rare circumstance

where it has been necessary to maintain the uniformity of our precedents. See,

e.g., Evans v. Sec’y, Dep’t of Corr., 703 F.3d 1316 (11th Cir. 2013) (en banc).

      The dissents that follow offer no good reason to rehear this matter en banc.

The panel decision is plainly right. We have declined to review myriad decisions

that were of equal or even greater importance, and granting en banc review of this

matter would waste precious judicial resources.




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BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:

      I completely agree with Judge Wilson that this case is one that should be

reheard en banc. However, I do so because I believe the panel opinion makes a

critical mistake in holding that the rule established in Miller v. Alabama, 132 S. Ct.

2455 (2012), is procedural. In my view, the rule established in Miller, which

prohibits mandatory life sentences without the possibility of parole for juvenile

offenders, is substantive rather than procedural and, thus, can be the basis for a

second or successive habeas petition under 28 U.S.C. § 2255(h).

      The Supreme Court has established that a rule is substantive if it “prohibit[s]

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), abrogated on other

grounds by Atkins v. Virginia, 536 U.S. 304 (2002). In my view, this is precisely

what Miller did. It “prohibit[ed]” mandatory sentences of life imprisonment

without the possibility of parole for “a class of defendants”—juvenile offenders—

“because of their status.” Id. The panel opinion holds the Miller rule to be

procedural simply because, in certain circumstances, a court may still impose a life

sentence on a juvenile offender. But that misses the point. An automatic

mandatory life sentence without the possibility of parole is a category of

punishment that the Supreme Court has found to be substantively unacceptable for

juvenile offenders.

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      The panel opinion relies heavily on the Supreme Court’s statement in

Schriro v. Summerlin, 542 U.S. 348 (2004), that “rules that regulate only the

manner of determining the defendant’s culpability are procedural.” Id. at 353.

However, it is a stretch to say that Miller changed only the manner of determining

a defendant’s sentence. Miller expanded the range of possible substantive

sentencing outcomes for juvenile offenders by categorically prohibiting one

category of punishment—mandatory life sentences—for that category of

defendants. This change cannot be simply a matter of procedure. Before Miller, a

juvenile offender convicted of certain crimes would automatically receive a

sentence of life without the possibility of parole; after Miller, the vast majority of

such offenders will receive a substantively different and lesser sentence. See

Miller, 132 S. Ct. at 2496 (“[W]e think appropriate occasions for sentencing

juveniles to this harshest possible penalty will be uncommon.”).

      It is unreasonable to conclude that all juvenile offenders like Morgan who

were sentenced to mandatory life sentences without the possibility of parole and

who, had they been sentenced after Miller, would have almost certainly received a

lesser sentence, now have no avenue of relief. As I have said previously, we

cannot interpret AEDPA’s procedural hurdles as mandating us to turn a blind eye

to constitutionally-flawed sentences. See In re Hill, No. 13-10702, slip op. at 50

(11th Cir. Apr. 22, 2013) (Barkett, J., dissenting) (“[I]t simply cannot be that

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Congress would have intended AEDPA to preclude a federal court from hearing

the claim of a juvenile or mentally retarded offender who obtains, albeit after the

conclusion of his prior federal habeas proceedings, irrefutable proof that his status

constitutionally bars his execution forever.”); see also Herrera v. Collins, 506 U.S.

390, 402 (1993) (“[F]ederal habeas courts act in their historic capacity—to assure

that the habeas petitioner is not being held in violation of his or her federal

constitutional rights.”). But by prohibiting Morgan from attacking his mandatory

life sentence on collateral review—a sentence that the Supreme Court held violates

the Eighth Amendment’s prohibition of cruel and unusual punishment—that is

exactly what the panel opinion would have us do. At the very least, this case

merits consideration by the entire Court.




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WILSON, Circuit Judge, dissenting from the denial of rehearing en banc, in which
MARTIN, Circuit Judge, joins:

      For crimes he committed between the ages of 13 and 17, Michael Morgan

was sentenced to mandatory life in prison without the possibility of parole. Such a

sentence would be unconstitutional were it handed down today. In Miller v.

Alabama, ––– U.S. ––––, 132 S. Ct. 2455, 2460 (2012), the Supreme Court held

that sentences of “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.’” This case concerns Morgan’s application to file a second

or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

We will grant an application to file a second or successive petition if the applicant

makes a prima facie showing that his second or successive motion contains a claim

involving “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).

      In the original panel order, we denied Morgan’s application, holding that

while Miller announced a new rule of constitutional law, the rule was not

retroactive to cases on collateral review because it did not “‘prohibit[] a certain

category of punishment for a class of defendants.’” In re Morgan, — F.3d —, No.

13-11175, 2013 WL 1499498, at *3 (11th Cir. Apr. 12, 2013) (quoting In re Moss,

703 F.3d 1301, 1303 (11th Cir. 2013)). But although the rule enunciated in Moss
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describes one category of rules that has been held to apply retroactively, Moss’s

rule is not exhaustive; in fact, the Supreme Court has instructed that the true

inquiry for determining whether a given rule is retroactive to cases on collateral

review hinges upon whether that new rule is procedural or substantive: “New

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

(2004) (emphasis in original). The resolution of Morgan’s application thus turns

on whether Miller’s rule is substantive or procedural. A majority of the Court

today concludes that this question is not sufficiently important to warrant en banc

review. I cannot agree. Because I believe this case readily presents “a question of

exceptional importance” worthy of en banc review, Fed. R. App. P. 35(a)(2), I

dissent.

      The United States Department of Justice has decided upon a uniform

policy—its United States Attorneys will advocate in favor of Miller’s retroactivity

in cases on collateral review all across the country. 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. 12-3744 (8th Cir.

Feb. 22, 2013) (“Miller’s holding that juvenile defendants cannot be subjected to a

mandatory life-without-parole sentence is properly regarded as a substantive

rule.”); see Motion of the United States for a Further Extension of Time at 1,

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Johnson v. United States, No. 12-3744 (8th Cir. Jan. 29, 2013) (“Because the issue

has nationwide application, the Department of Justice is formulating the

government’s position on retroactivity rather than individual U.S. Attorney’s

Offices.”). That is, not even the government wants these juvenile offenders—who

are condemned to die in prison pursuant to now-unconstitutional sentencing

schemes—deprived of their ability to seek the writ of habeas corpus. See

Government’s Response to Petitioner’s Application for Authorization to File a

Second or Successive Motion Under 28 U.S.C. § 2255 at 2, Johnson v. United

States, No. 12-3744 (8th Cir. Feb. 22, 2013) (“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.”). If the

availability of the writ to Morgan and the hundreds of similarly situated juvenile

offenders serving mandatory life-without-parole sentences that would be

indubitably unconstitutional were they handed down today is not a question of

exceptional importance, I cannot imagine what is. 1

       Nor is the argument that Miller announces a substantive rule a frivolous one.

“A rule is substantive rather than procedural if it alters the range of conduct or the



       1
          As of April 20, 2011, there were 336 juvenile offenders serving life without parole
within our circuit. See Sentencing Juveniles, N.Y. Times, Apr. 20, 2011,
http://www.nytimes.com/interactive/2011/04/20/us/ juveniles.html?ref=u&_r=0 (explaining that
there are 266 such offenders in Florida, 62 in Alabama, and 8 in Georgia). Of those 336
offenders, 17 of them are 13- or 14-year-olds. Id.
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class of persons that the law punishes.” Schriro, 542 U.S. at 353, 124 S. Ct. at

2523. I agree that the rule announced by Miller does not fit neatly within our

understanding of a substantive rule. See Teague v. Lane, 489 U.S. 288, 307, 109 S.

Ct. 1060, 1073 (1989) (“[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.” (internal quotation marks omitted)).

But neither does Miller’s rule fit neatly within our definition of a procedural rule.

See Schriro, 542 U.S. at 353, 124 S. Ct. at 2523 (explaining that a rule that

“requir[es] that a jury rather than a judge find the essential facts bearing on

punishment” and other “[r]ules that allocate decisionmaking authority in this

fashion are prototypical procedural rules”). By altering the range of possible

outcomes for a juvenile sentenced to life without parole under a mandatory

sentencing scheme, Miller arguably heralds a substantive rule. See id. at 352–53,

124 S. Ct. at 2522–23; see also Miller, 132 S. Ct. at 2477 (Roberts, C.J.,

dissenting, joined by Scalia, Thomas, and Alito, J.J.) (summarizing the majority’s

decision as “invok[ing] [the Eighth] Amendment to ban a punishment” (emphasis

supplied). For example, and as the Supreme Court wrote in Miller itself, in the

post-Miller world, “appropriate occasions for sentencing juveniles to this harshest

possible penalty [of life without parole] will be uncommon.” See Miller, 132 S.

Ct. at 2469. It seems to me that to write off as merely procedural a new rule that

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will compel a different substantive result—that is, a different, and lesser,

sentence—in the majority of cases that will follow would be to stretch the meaning

of “procedural” too far. See id. The fact remains that, for a majority of juvenile

offenders like Morgan, who have been convicted of crimes that would have

previously required that they be incarcerated for the duration of their natural lives,

Miller commands a wholly different outcome: whereas before we would lock them

up and throw away the key, now such an outcome will be, in the Supreme Court’s

own words, “uncommon.” See id. In my view, we should think long and hard

before we dismiss that as a simple matter of “procedure.”

      I do not mean to suggest that any rule that is outcome determinative is also a

fortiori a substantive rule retroactively applicable to cases on collateral review. As

the Supreme Court has made clear, because rules of procedure “merely raise the

possibility that someone convicted with use of the invalidated procedure might

have been acquitted otherwise,” they have a “speculative connection to innocence”

that does not justify retroactive applicability. Schriro, 542 U.S. at 352, 124 S. Ct.

at 2523; see Bousley v. United States, 523 U.S. 614, 620, 118 S. Ct. 1604, 1610

(1998) (“The Teague doctrine is founded on the notion that one of the ‘principal

functions of habeas corpus [is] to assure that no man has been incarcerated under a

procedure which creates an impermissibly large risk that the innocent will be

convicted.’” (quoting Teague, 489 U.S. at 312, 109 S. Ct. at 1076)). And though

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the Teague doctrine’s original moorings can be found in cases involving guilt or

innocence, we have since extended it to cases involving the state’s power to

punish. See, e.g., Moss, 703 F.3d at 1303. “Consequently, unless a new rule of

criminal procedure is of such a nature that without [it] the likelihood of an accurate

conviction [or a constitutional sentence] is seriously diminished, there is no reason

to apply the rule retroactively on habeas review.” Bousley, 523 U.S. at 620, 118 S.

Ct. at 1610 (citation and internal quotation marks omitted). But that is exactly my

point. Following Miller, the cases in which a juvenile offender can appropriately

be sentenced to life without parole will be “uncommon.” See Miller, 132 S. Ct. at

2469. There is nothing “speculative” about the fact that these individuals, judged

by today’s standards, would likely receive a lesser sentence. Schriro, 542 U.S. at

352, 124 S. Ct. at 2523. Indeed, because the Supreme Court has told us that life-

without-parole sentences will rarely be imposed on juveniles in the wake of Miller,

a sentencing scheme that mandated that 100% of those individuals receive life

without parole is, to put it mildly, the type of rule that renders “the likelihood of an

accurate [sentence] . . . seriously diminished.” Bousley, 523 U.S. at 620, 118 S. Ct.

at 1610. That is because, were these individuals sentenced today, the likelihood of

them receiving the same sentence would be minimal. In that way, Miller arguably

announces a substantive rule retroactive to cases on collateral review or, at the very




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least, a substantive or procedural rule of a different stripe from those we have

previously confronted.

      In the original panel order rejecting Morgan’s application, the majority

relied on the Supreme Court’s statement in Schriro that “rules that regulate only

the manner of determining the defendant’s culpability are procedural.” Schriro,

542 U.S. at 353, 124 S. Ct. at 2523 (emphasis in original). That statement proves

too much, though, because the rule announced in Miller does not regulate “only the

manner of determining the defendant’s culpability.” Id. (emphasis supplied).

Miller arguably does more than merely alter the manner of determining an

individual’s sentence: in addition to changing the procedure for sentencing juvenile

offenders to life without parole from a statutory mandate to an individualized

determination made only after considering the nature of the offender and the

criminal act, Miller simultaneously alters the standard by which the sentence is

judged. See Miller, 132 S. Ct. at 2475. Prior to Miller, a juvenile offender being

sentenced for certain crimes would automatically receive life without parole

without regard to the “offender’s youth and attendant characteristics.” Id. at 2471.

Now, however, those circumstances must be weighed in the balance, and

“appropriate occasions for sentencing juveniles to [life without parole] will be

uncommon.” See id. at 2469. By making what was once a mandatory outcome an

uncommon outcome, the rule does not alter only the manner of making the

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determination, but also the substance—indeed, the merits—of imposing the

sentence. Though we may ultimately determine that this unusual species of

constitutional rule is more akin to a procedural rule than to a substantive rule, we

should at least do so only after deliberate consideration and discourse, because

regardless of the taxonomic classification to which we ultimately assign it, Miller’s

rule—and its application to cases on collateral review—is an important one.

       I reiterate that the merits are not even at issue here—the only question we

face is whether Morgan’s application presents a question of exceptional

importance worthy of review by the full Court sitting en banc. See Fed. R. App. P.

35(a)(2). A majority of this Court today decides that the issue presented by

Morgan’s application—whether juveniles previously sentenced to life in prison

without the possibility of parole can avail themselves of the Great Writ to

challenge sentences we all agree would be constitutionally flawed if they were

handed down today—is not important enough to warrant further discussion. See

Miller, 132 S. Ct. 2455, 2469 (holding that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole for

juvenile offenders”). I cannot comprehend why. There is great confusion amongst

the courts of this country as to whether Miller applies retroactively. 2 One Florida


       2
          Compare In re Landry, No. 13-247 (4th Cir. May 30, 2013) (granting motion to file
second or successive habeas petition brought solely on the ground that Miller announces a new
rule retroactively applicable to cases on collateral review), In re James, No. 12-287 (4th Cir.
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court recently certified the question of Miller’s retroactivity to the Florida Supreme

Court as “one of great public importance.” Falcon v. State, — So. 3d —, No.

1D13–0034, 2013 WL 1809742, at *1 (Fla. Dist. Ct. App. Apr. 30, 2013) (per

curiam). 3 And although Judge Pryor suggests that “the only other [federal] circuit


May 10, 2013) (same), Hill v. Snyder, No. 10-14568, 2013 WL 364198, at *2 n.2 (E.D. Mich.
Jan. 30, 2013) (“[T]his court would find Miller retroactive on collateral review, because it is a
new substantive rule, which generally apply retroactively.” (internal quotation marks omitted)),
People v. Cooks, No. 1-11-2991, 2013 WL 1195435, at *4 (Ill. App. Ct. Mar. 22, 2013) (holding
that Miller is retroactive), People v. Williams, 982 N.E.2d 181, 196 (Ill. App. Ct. 2012) (holding
that Miller applies retroactively), People v. Morfin, 981 N.E.2d 1010, 1022 (Ill. App. Ct. 2012)
(“[W]e find that Miller constitutes a new substantive rule.”), State v. Lockhart, 820 N.W.2d 769
(Iowa Ct. App. 2012) (unpublished table decision) (vacating life-without-parole sentence
imposed for a murder that occurred 29 years ago in light of Miller), State v. Simmons, 99 So. 3d
28 (La. 2012) (per curiam) (remanding for resentencing on collateral review in light of Miller),
State v. Williams, 108 So. 3d 255 (La. Ct. App. 2013) (explaining that “Miller is retroactive to
cases that were final in Louisiana at the time the decision in Miller was rendered”),
Commonwealth v. Cunningham, 51 A.3d 178 (Pa. 2012) (per curiam) (granting appeal on the
question of Miller’s retroactive applicability under Pennsylvania law), and Ex parte Maxwell,
No. AP-76964, 2013 WL 458168 (Tex. Crim. App. Feb. 6, 2013) (per curiam) (granting appeal
on the question of Miller’s retroactivity), with Craig v. Cain, No. 12-30035, 2013 WL 69128, at
*2 (5th Cir. Jan. 4, 2013) (per curiam) (not retroactive), People v. Carp, 828 N.W.2d 685, 711
(Mich. Ct. App. 2012) (holding that Miller’s rule is procedural and therefore not retroactively
applicable to cases on collateral review), and Geter v. State, No. 3D12–1736, 2012 WL 4448860,
at *1 (Fla. Dist. Ct. App. Sept. 27, 2012) (same).
       3
          Judge Pryor submits that I “confuse[] the rules of retroactivity that apply on federal
collateral review with the rules of retroactivity that apply to state collateral review” because
many of the cases cited in the footnote above “were decisions by state courts on state collateral
review.” Concurring Op. of Pryor, J., at 16. Again, that simply isn’t the case. It is true that state
courts can choose the principles that govern retroactivity in their own state collateral
proceedings, see Danforth v. Minnesota, 552 U.S. 264, 280–81, 128 S. Ct. 1029, 1041–42
(2008), but many state courts have adopted Teague’s substantive/procedural dichotomy for
assessing whether or not a new rule should be given retroactive effect. See, e.g., Danforth v.
State, 761 N.W.2d 493, 497–99 (Minn. 2009) (adopting Teague’s formulation on remand from
the Supreme Court’s decision in Danforth v. Minnesota, and explaining that many states have
adopted Teague “primarily based on the important policy interest in finality,” or because they
“valued uniformity between state and federal rules”). It should come as no surprise, then, that
several of the cases cited in the preceding footnote expressly employ the Teague mode of
analysis in determining whether Miller should apply retroactively. See, e.g., Cooks, 2013 WL
1195435, at *4 (applying Teague to find Miller retroactive); Carp, 828 N.W.2d at 708–09
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court to have addressed the question and explained its analysis agrees” that Miller

does not apply retroactively, Concurring Op. of Pryor, J., at 18 (citing Craig, 2013

WL 69128, at *2), that statement is misleading. Two separate panels of the Fourth

Circuit recently granted motions to file a second or successive habeas petition

brought solely on grounds of Miller’s retroactivity—grounds identical to those

contained in Morgan’s application here.4 See In re Landry, No. 13-247 (4th Cir.



(finding that Miller is procedural under the Teague framework). Certainly Judge Pryor would
not quarrel with the proposition that, in our dual system of coequal sovereigns, state courts are
just as capable as federal courts of faithfully applying the rules set down by the Supreme Court
to the cases that come before them. See Tafflin v. Levitt, 493 U.S. 455, 465–66, 110 S. Ct. 792,
798–99 (1990) (explaining the Court’s “full faith in the ability of state courts to handle the
complexities of” the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
§§ 1961–1968, a complex federal scheme, and noting that “[t]o hold otherwise would . . .
denigrate the respect accorded coequal sovereigns”); cf. Pompey v. Broward County, 95 F.3d
1543, 1550 (11th Cir. 1996) (“The state courts are courts of equal dignity with all of the federal
‘inferior courts’—to use the Framers’ phrase—and state courts have the same duty to interpret
and apply the United States Constitution as we do.”). That being so, there is no reason why the
analysis of a state court applying Teague shouldn’t be just as persuasive as that of any other
federal court whose decisions do not bind us.
       4
          Judge Pryor contends that “the prisoner in In re James who sought permission to file a
second or successive motion asserted . . . claims based on both ‘newly discovered evidence’” and
the argument that Miller applies retroactively, but that assertion is specious. Concurring Op. of
Pryor, J., at 19. It is true that the petitioner in James—when he was still acting pro se and filling
out the pre-printed form provided by the court to pro se applicants—handwrote “ALL OF THE
ABOVE” in the space calling for the applicant to state which prong (new evidence or a new rule
retroactively applicable to cases on collateral review) of § 2255(h) formed the basis for his
motion. In re James, No. 12-287, D.E. 2-1, at 3. But James was then appointed counsel, who
filed a brief arguing only that Miller set forth a new rule of constitutional law retroactive to cases
on collateral review. See In re James, No. 12-287, D.E. 18. Because James’s pro se application
was utter nonsense and his counseled brief argued only that Miller applies retroactively, the only
way the Fourth Circuit could grant the application in In re James was if it first held that the
applicant had “ma[de] a prima facie showing” that Miller applies retroactively. 28 U.S.C.
§ 2244(b)(3)(C).

       Judge Pryor also submits that it is impossible to know whether the Fourth Circuit
“determined that the prisoner had made a prima facie showing that the rule in Miller was
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May 30, 2013); In re James, No. 12-287 (4th Cir. May 10, 2013). Given that a

“court of appeals may authorize the filing of a second or successive application

only if it determines that the application makes a prima facie showing” of

retroactivity or of evidence showing the applicant’s innocence, 28 U.S.C.

§ 2244(b)(3)(C) (emphasis supplied), Judge Pryor is wrong to state that “[t]hese

two orders and the dictum in the footnote of a single opinion of a federal district

court . . . hardly support” the proposition that there is confusion among the federal

courts as to the merit of Morgan’s application, Concurring Op. of Pryor, J., at 20.

The holdings of these two separate orders from the Fourth Circuit permit the

applicants in those cases to file second or successive petitions. See In re Landry,

No. 13-247 (4th Cir. May 30, 2013); In re James, No. 12-287 (4th Cir. May 10,

2013). Those holdings are permitted under federal law only if the court of appeals

first concludes that the applicant has made a prima facie showing that he satisfies

the requirements of § 2255(h). The only issue before us is whether Morgan has

retroactive on collateral review because it was substantive, because it was a watershed rule of
criminal procedure, or for some other reason” when it granted the applicant’s motion to file a
second or successive petition in In re Landry. Concurring Op. of Pryor, J., at 19–20. But it
simply does not matter. After all, to grant the applications in In re Landry and In re James,
federal law required the Fourth Circuit to hold that the applicants had made a prima facie
showing that Miller applies retroactively to cases on collateral review. See § 2244(b)(3)(C)
(“The court of appeals may authorize the filing of a second or successive application only if it
determines that the application makes a prima facie showing that the application satisfies the
requirements of this subsection.”). Because we would have to grant Morgan’s application if we
found him to have made a prima facie showing on either prong, Judge Pryor’s point rings
hollow—it is a distinction without a difference, because under either mode of analysis, we would
have to grant Morgan’s application here. See Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003) (per curiam) (explaining that authorization to file a second or successive motion is
jurisdictional).
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made such a prima facie showing. So, if we are counting cases in the courts of

appeals, as Judge Pryor seems to suggest we ought to be doing, there are actually

more cases supporting Morgan’s application than there are opposing it. Compare

In re Landry, No. 13-247 (4th Cir. May 30, 2013), and In re James, No. 12-287

(4th Cir. May 10, 2013), with Craig, 2013 WL 69128, at *2.

      Moreover, because an application to file a second or successive habeas

petition presents a jurisdictional question, above all else, “it is our responsibility to

see that [the matter] is decided correctly under the law.” United States v. Smith,

654 F.3d 1263, 1266 n.1 (11th Cir. 2011), vacated on other grounds, 684 F.3d

1364 (11th Cir. 2012). Again, my point exactly: because we considered Morgan’s

application ex parte, we have yet to even hear from the government in this case. In

addition, the prima facie showing necessary for certification under § 2255(h)

merely requires “a sufficient showing of possible merit to warrant a fuller

exploration by the district court.” In re Davis, 565 F.3d 810, 816 (11th Cir. 2009)

(per curiam). Once we make that “limited determination,” “[t]he district court is to

decide the [§ 2255(h)] issue[s] fresh, or in the legal vernacular, de novo.” Moss,

703 F.3d at 1303 (internal quotation marks omitted). Therefore, and although

Morgan’s position on the retroactivity of Miller may not ultimately prove to be the

correct one, it needn’t be for him to achieve § 2254(h) certification.




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      I end where I began—in my view, there can be little doubt that whether a

juvenile offender can attack on collateral review his sentence of mandatory life

imprisonment without the possibility of parole—a sentence that would now be

constitutionally flawed pursuant to Miller—constitutes “a question of exceptional

importance” deserving of en banc review. Fed. R. App. P. 35(a)(2). Indeed, to

Morgan and hundreds of similarly situated juvenile offenders sentenced to life

without parole who would likely receive a different sentence were they able to

collaterally attack their sentences under § 2255, the issue presented here is one of

immense proportions.

      As a court, we therefore stand at a crossroads: we can either cling to the

belief that the government is wrong and that we have nothing to learn from en banc

review, or we can have the parties brief the matter to ensure that we reach the

correct decision under the law. The Court today chooses the former course. To

me, that the latter route is the better one is self-evident—after all, why should we

not take a little extra effort to ensure that we get this one right, at least before we

shut the courthouse door on those 336 juveniles currently serving unconstitutional

sentences in prisons throughout our circuit? The question is an important one, and

we have nothing to lose by hearing from all the parties before we make a decision

on such a weighty issue. Of one thing we can be sure, Michael Morgan—and the

hundreds of other inmates serving sentences of mandatory life without parole

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meted out pursuant to now-unconstitutional sentencing schemes—isn’t going

anywhere anytime soon.




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