          United States Court of Appeals
                        For the First Circuit

No. 13-1661

                         HAROLD EVANS-GARCÍA,

                              Petitioner,

                                  v.

                       UNITED STATES OF AMERICA,

                              Respondent.


No. 13-1662

                        ERIC JOEL CARRIÓN-CRUZ,

                              Petitioner,

                                  v.

                       UNITED STATES OF AMERICA,

                              Respondent.


                APPLICATIONS FOR LEAVE TO FILE A SECOND
              OR SUCCESSIVE MOTION UNDER 28 U.S.C. § 2255


                                Before

                         Lynch, Chief Judge,
                Torruella and Kayatta, Circuit Judges.


          Hector L. Ramos-Vegas, Assistant Federal Public Defender,
Supervisor, Appeals Section, with whom Hector E. Guzman, Jr.,
Federal Public Defender, was on brief, for petitioners.
          Robert A. Parker, Criminal Division, Appellate Section,
United States Department of Justice, with whom Rosa Emilia
Rodriguez-Velez, United States Attorney, District of Puerto Rico,
Mythili Raman, Acting Assistant Attorney General, Nelson Pérez-
Sosa, Chief, Appellate Division, United States Attorney's Office,
and Denis J. McInerney, Deputy Assistant Attorney General, were on
brief, for respondent.



                        February 28, 2014




                               -2-
             KAYATTA, Circuit Judge.        Harold Evans-García and Eric

Joel Carrión-Cruz are each serving life sentences without the

possibility of parole for crimes they committed when they were

younger than eighteen years old. After each of them unsuccessfully

exhausted a direct appeal and a petition for habeas relief, the

United States Supreme Court decided Miller v. Alabama, 132 S. Ct.

2455 (2012).      In Miller, the Supreme Court held that the Eighth

Amendment to the United States Constitution "forbids a sentencing

scheme that mandates life in prison without possibility of parole

for juvenile offenders." Miller, 132 S. Ct. at 2469. Evans-García

and Carrión-Cruz each now wish to pursue a new habeas petition,

this time attempting to employ Miller               to secure a potential

reduction    in   their   sentences.        Under   the   Antiterrorism   and

Effective Death Penalty Act, 110 Stat. 1214 (1996), they cannot

pursue their new petitions unless we first certify that the

proposed petitions satisfy the requirements of an exception to what

is otherwise a bar on second or successive habeas petitions.               28

U.S.C.   §    2255(h).     For    reasons    described    below,   we   grant

certification to Evans-García but deny it to Carrión-Cruz.

                                 I. Background

             Evans-García's and Carrión-Cruz's crimes are described in

our prior opinions.       See United States v. Evans-García, 322 F.3d

110 (2003); United States v. Carrión-Cruz, 92 F.3d 5 (1996).               In

brief, they were each convicted of a carjacking resulting in death.

                                      -3-
Evans-García committed his crime in 1996, seven days before his

eighteenth birthday, while Carrión-Cruz was fifteen years and six

months old at the time of his crime in 1994.

              At the time the petitioners were sentenced, the district

court was bound to follow the federal sentencing guidelines, which

had not yet been ruled advisory by the Supreme Court.                 See United

States v. Booker, 543 U.S. 220, 259 (2005).             Under the guidelines,

the district court would first calculate an "offense level" between

one and forty-three, and then place the defendant in one of six

criminal history categories. See U.S. Sentencing Guidelines Manual

§§ 1B1.1, 5A (2001).            Based on the calculated offense level and

criminal history category, the guidelines determined the applicable

range within which the district court was required to fix a

sentence.      Id.    The court could impose a sentence above or below

the   range    only   if   it    found   facts    supporting   any    of   several

specified grounds for departure.            Id.

              Evans-García's offense level and criminal history led to

a range including just one sentence: life in prison without the

possibility     of    parole.       While   the   guidelines   allowed      for   a

potential downward departure from the otherwise mandated sentence

for specified reasons not including youth, the court found none of

those reasons applicable.            For Carrión-Cruz, by contrast, the

guidelines provided for a lower sentencing range of 292 to 365

months in prison, primarily because he pled guilty.                  However, due

                                         -4-
to the "sordid facts of the case,"1 and even after considering the

defendant's "youth and limited intellect," the district court

decided to depart upward from the guidelines, imposing a sentence

of life without parole.    Carrión-Cruz, 92 F.3d at 6.

                          II. Legal Standard

           Like other federal prisoners seeking to file "second or

successive" habeas petitions, Evans-García and Carrión-Cruz must

obtain certification from a court of appeals before presenting

their petitions to the district court.        See 28 U.S.C. § 2255(h).

In deciding whether to grant certification in the absence of any

newly    discovered   evidence,   we    ask    whether   the   petition

"contain[s]... a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court, that was

previously unavailable."    See 28 U.S.C. §      2255(h)(2).   We follow

the procedural requirements laid out in section 2244, which governs

state prisoners' petitions but is cross-referenced in the section

applicable to federal prisoners such as the petitioners here.       See

28 U.S.C. § 2255(h) ("A second or successive motion [by a federal

prisoner] must be certified as provided in section 2244 . . . .").

           Section 2244 specifies that the court of appeals should

ask whether the "the application makes a prima facie showing" that



     1
       Carrión-Cruz executed an elderly couple who stopped to
assist him as he walked along the road from the scene of another
murder he had just committed.

                                  -5-
it   satisfies     the   applicable    requirements.      28   U.S.C.

§ 2244(b)(3)(C).    See also Tyler v. Cain, 533 U.S. 656, 664 (2001)

("[T]he court of appeals must determine whether the application

'makes a prima facie showing that [i]t satisfies the [second habeas

standard].'" (second and third alterations in original) (quoting 28

U.S.C. § 2244(b)(3)(C)).     We have previously held that a prima

facie showing at the certification stage is "a sufficient showing

of possible merit to warrant a fuller exploration by the district

court."   Rodriguez v. Superintendent, Bay State Corr. Ctr., 139

F.3d 270, 273 (1st Cir. 1998) (quoting Bennett v. United States,

119 F.3d 468, 469-70 (7th Cir. 1997)).    In other words, our task is

not to decide for certain whether the petition has merit, but

rather to determine whether "it appears reasonably likely that the

application satisfies the stringent requirements for the filing of

a second or successive petition."      Id. (quoting Bennett, 119 F.3d

at 469-70).

          Consistent with the statute and our precedent, we find

good reason to refrain from a full inquiry at this stage, even on

a purely legal issue such as retroactivity.      We generally do not

rule on questions--whether of fact or of law--until a district

court has done so, Singleton v. Wulff, 428 U.S. 106, 120 (1976), a

practice that enhances the quality of our decisions both by

allowing us to consider the district court's analysis and by

allowing the parties to hone their arguments before presenting them


                                 -6-
to us.    Moreover, in ruling on certification requests, we often

must strive to move more quickly than a full consideration of the

merits might reasonably require. See Rodriguez, 139 F.3d at 272-73

(noting that section 2244(b)(3)(D) establishes a thirty day limit

for certification decisions, but holding that the limit is not

fully mandatory).

                              III. Analysis


A.    We Accept the Government's Concession that Evans-García May
      Present His Petition to the District Court.

           The government concedes that Miller announced a new rule

of   constitutional   law   that     was   previously   unavailable.     In

particular, Miller held that the Eighth Amendment to the United

States Constitution "forbids a sentencing scheme that mandates life

in prison without possibility of parole for juvenile offenders."

Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012).         This rule was new

because it was "not dictated by precedent existing at the time the

defendant's conviction became final," Graham v. Collins, 506 U.S.

461, 467 (1993) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)),

and it was previously unavailable because it was issued after the

petitioners were sentenced (in 2001 and 1995, respectively) and

pursued   their   first     habeas    petitions   (in    2004   and    2005,

respectively).

           Whether the new rule announced in Miller has been made



                                     -7-
retroactive by the Supreme Court presents a much closer question.2

We need not answer that question, however, because the government

has also conceded that Miller has been made retroactive, at least

under the prima facie standard. Two circuits have certified second

or successive habeas petitions based on Miller by relying, in whole

or in part, on the same government concession.                    See Johnson v.

United States, 720 F.3d 720, 720 (8th Cir. 2013) ("The government

here has conceded that Miller is retroactive . . . and we therefore

conclude that there is a sufficient showing . . . ."); Wang v.

United States, No. 13-2426 (2d Cir. July 16, 2013) (unpublished)

(relying in part on the government's concession to certify a second

or successive habeas petition based on Miller).                    The government

plays a central role in criminal law enforcement.              Moreover, it is

fair       to   say   that   the    government   is   generally     resistant     to

collateral        review     of    criminal    convictions   and     sentences.

Accordingly, one might conclude that where the government concedes

that a rule favoring prisoners has been made retroactive, that



       2
       The issue has divided several other circuits that have
considered it. Compare In re Pendleton, 732 F.3d 280, 282 (3d Cir.
2013) (granting a request for certification on the grounds that
petitioners had made a prima facie showing of Miller's
retroactivity); with Craig v. Cain, 2013 WL 69128, *2 (5th Cir.
Jan. 4, 2013) (per curiam) (denying a request to rehear denial of
certification on the grounds that Miller has not been made
retroactive); In re Morgan, 713 F.3d 1365, 1367-68 (11th Cir. 2013)
(denying a request for certification on the same grounds). See
also In re James, No. 12-287 (4th Cir. May 5, 2013) (unpublished)
(granting certification of a second or second successive habeas
petition based on Miller without discussion).

                                         -8-
position has at least "possible merit . . . warrant[ing] a fuller

exploration by the district court."             Rodriguez, 139 F.3d at 273

(1st Cir. 1998) (internal quotation marks omitted).

            "[C]ourts are generally limited to addressing the claims

and arguments advanced by the parties."             Henderson, 131 S. Ct. at

1202.    See also Castro, 540 U.S. at 386 (2003) (Scalia, J.,

concurring in part and concurring in the judgment) ("Our adversary

system is designed around the premise that the parties know what is

best for them, and are responsible for advancing the facts and

arguments entitling them to relief.").              This is not to say that a

government concession necessarily results in an opinion adopting

the conceded position. We have sometimes chosen not to accept such

concessions,     as    where   the   government's        position      is     clearly

erroneous      and    has   been   rejected    by    a   lower       court.       See

Computervision Corp. v. C.I.R., 164 F.3d 73, 75 (1st Cir. 1999).

Here, though, the retroactivity issue is far from clear, we have no

district court order to review, and our own de novo consideration

is   limited    to    ascertaining    the     presence     of    a    prima     facie

demonstration.        In short, the factors that might warrant greater

reticence in giving force to a government concession weigh less in

this context.        We are cognizant, too, that if we err in granting

certification, ample opportunity for correcting that error will

remain. Conversely, should we err in denying certification, Evans-

García will have no opportunity to appeal or seek rehearing en


                                      -9-
banc.   28 U.S.C. § 2244(b)(3)(E).

               Further, we see nothing in the habeas statute that would

require us to apply special scrutiny to a government concession on

retroactivity.         Cf. Allen v. Parker, 2013 WL 4712735, *4 (6th Cir.

Sept. 3, 2013) (unpublished) (accepting the government's concession

on habeas review that a sentence was contrary to federal law,

although the concession was "wrong as a matter of law").                     For

example, our approach does not interfere with Congress's goal of

"streamlining federal habeas proceeding."               Rhines v. Weber, 544

U.S.    269,     277    (2005).      Experience   teaches      that   government

concessions of this kind are exceedingly rare, and in any event

acceptance of such concessions may do more to simplify habeas

review (as here) than to complicate it.           Nor is there any apparent

absence of subject matter jurisdiction that might capture our

attention, sua sponte.            See Gonzalez v. Thaler, 132 S. Ct. 641,

648-49 (2012).

               We have also considered as a possible objection to our

approach the fact that the statute indicates that the court itself

must    "determine"       whether    the   petitioner    has    satisfied   the

applicable requirements.          See 28 U.S.C. § 2244(b)(3)(C) (providing

that a court should grant certification "only if it determines that

the application makes a prima facie showing.").             Yet, it is always

the case that a court must determine whether the requirements of a

statute have been satisfied in deciding a case arising under that

                                       -10-
statute.   This does not mean, however, that courts cannot utilize

the waiver doctrine as a tool in making such determinations.

Indeed, in other contexts in which courts are instructed to

"determine" a matter, courts can clearly accept concessions by the

parties.   For example, Federal Rule of Civil Procedure 26 provides

that where a party asserts that initial disclosures are not

appropriate    in   an   action,    "the   court   must   determine     what

disclosures, if any, are to be made and must set the time for

disclosure."   Fed. R. Civ. P. 26(a)(1)(C).        Yet surely courts can

(and regularly do) accept agreements between parties on these

matters with no further examination.

           Evans-García's petition plainly contains--indeed relies

on--the holding in Miller outlawing mandatory sentence of life

without parole for juvenile offenders. In view of the government's

concession, we certify that Evans-García has made a prima facie

showing that this rule qualifies as a basis for habeas relief on a

second or successive petition, and so we allow him to file his

petition with the district court.

B.   We Cannot Certify Carrión-Cruz's Petition.

           The government argues that we should deny Carrión-Cruz's

request for certification because he, unlike Evans-García, was not

subject to a mandatory life sentence.        The habeas statute does not

specify what inquiry, if any, we should make into the merits of a

petitioner's   reliance    on   a   new    constitutional   rule   at   the

                                    -11-
certification     stage.       Other     circuits      have   taken    divergent

approaches.     Compare In re Morris, 328 F.3d 739, 740-41 (5th Cir.

2003) (requiring the petitioner to make a prima facie showing that

he was "mentally retarded" to present a petition based on a new

constitutional     rule    barring     execution      of   "mentally   retarded"

individuals), In re Bowling, 422 F.3d 434, 436 (6th Cir. 2005) (in

the   same    situation,     requiring        "some   documentation    of   [the

petitioner's]     claim    that   he   is     mentally     retarded"   (internal

quotation marks omitted)), and In re Holladay, 331 F.3d 1169, 1174

(11th Cir. 2003) (in the same situation, requiring evidence that

"establish[es] a reasonable likelihood that [the petition] is in

fact mentally retarded"), with Ochoa v. Sirmons, 485 F.3d 538, 545

(10th Cir. 2007) (criticizing Morris, Bowling, and Holladay for

"adding the merits component to the authorization inquiry" contrary

to the text of the statute).

             We need not fully engage in this debate because there are

no disputed factual issues, such as mental capacity, that must be

resolved to determine whether Miller plausibly applies to Carrión-

Cruz's situation.         Instead, Miller applies if a petitioner was

(1) younger than eighteen years old at the time of the crime, which

Carrión-Cruz clearly was; and (2) subject to a mandatory sentence

of life in prison without the possibility of parole, which we can

determine as a matter of law by reference to legal documents such

as statutes, sentencing guidelines, and court documents.                    See


                                       -12-
Miller, 132 S. Ct. at 2469.          We therefore need only hold that a

circuit court should deny certification where it is clear as a

matter of law, and without the need to consider contested evidence,

that the petitioner's identified constitutional rule does not apply

to the petitioner's situation.            To grant certification in such

circumstances would be to send the district court on a fool's

errand.

             Under this standard, we must deny Carrión-Cruz's request

because he was not sentenced pursuant to any statute or guideline

that mandated a sentence of life without parole. He pled guilty to

the same crime of which Evans-García was convicted, and he was

therefore potentially subject to a statutory punishment range of

any number of years in prison up to life, or the death penalty.

Unlike Evans-García, however, Carrión-Cruz's offense level under

the guidelines was lowered because he accepted responsibility for

his crime and pled guilty.         Consequently, the guidelines range for

Carrión-Cruz was 292 months to 365 months, not life.              Carrión-Cruz

received a sentence of life without parole only because the

sentencing    judge   had    discretion      to    depart   upwards   under   the

guidelines exception for crimes leading to multiple deaths and

under the general exception for "circumstances that render the case

atypical   and   take   it   out    of   the      'heartland'   for   which   the

applicable guideline was designed." United States v. Carrión-Cruz,

92 F.3d 5, 6 (1st Cir. 1996).        The court exercised that discretion


                                      -13-
based on the "sordid facts of the case"--four killings, including

two of "good samaritans who had stopped to offer assistance." Id.

           It is true that in explaining its decision to sentence

Carrión-Cruz to life without parole, the district court did not

expressly say that it was taking into account "how children are

different, and how those differences counsel against irrevocably

sentencing them to a lifetime in prison," as the Supreme Court

required in Miller.    132 S. Ct. at 2469.     As we noted in upholding

the   sentence,   however,   the   district   court   in   exercising   its

discretion "took full account" of Carrión-Cruz's youth.          Carrión-

Cruz, 92 F.3d at 6.    Even if such an accounting somehow fell short

under Miller--and we do not hold that it did--such a procedural

shortfall did not violate the bar on mandatory life sentences for

juveniles, the only holding of Miller that the government has

conceded qualifies for habeas relief on a second or successive

petition, and the only holding on which the petitioners have made

a prima facie showing of retroactivity.         Cf. Tyler v. Cain, 533

U.S. 656, 668 (2001) (O'Connor, J., concurring) (noting that a rule

has been made retroactive by the Supreme Court if the Court

expressly declares it retroactive or issues multiple holdings that

"logically dictate . . . retroactivity"); Teague v. Lane, 489 U.S.

288, 310 (1989) (holding that new rules of criminal procedural are

generally not retroactive).




                                   -14-
                         IV. Conclusion

          For the foregoing reasons, we certify Evans-García's

habeas petition for consideration by the district court.   We deny

certification to Carrión-Cruz.

          So ordered.




                                 -15-
