     Case: 13-40718      Document: 00512526185         Page: 1    Date Filed: 02/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40718
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
In re: TORVOS SIMPSON,                                                   February 7, 2014
                                                                           Lyle W. Cayce
                                                 Movant                         Clerk



                         Motion for an order authorizing
                 the United States District Court for the Eastern
                          District of Texas to consider
                      a successive 28 U.S.C. § 2255 motion


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Torvos Simpson, federal prisoner # 47110-078, moves for authorization
to file a successive 28 U.S.C. § 2255 motion challenging his life sentence
without possibility of parole.        In 1995, together with two co-defendants,
Simpson pleaded guilty to carjacking in violation of 18 U.S.C. § 2119, and
possession of a firearm during a crime of violence in violation of 18 U.S.C. §
924(c)(1). The carjacking resulted in the death of another teenager. Simpson
was under eighteen at the time of the offense. Simpson was sentenced to life
without the possibility of parole, plus a consecutive 60-month sentence. 1




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       Given the procedural posture of the motion, we have minimal information regarding
       1

Simpson’s sentencing proceedings. However, we do note that Simpson was sentenced prior
    Case: 13-40718     Document: 00512526185     Page: 2   Date Filed: 02/07/2014



                                  No. 13-40718
      Section 2255(h) bars a federal prisoner from filing a second or successive
motion to vacate, set aside, or correct a sentence unless the court of appeals
certifies that the petition either (1) contains “newly discovered evidence that,
if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense,” or (2) is premised on “a new rule
of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
Simpson seeks leave to file a successive § 2255 motion on the grounds that the
United States Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct.
2455 (2012), which held that mandatory life sentences without the possibility
of parole for juvenile offenders violate the Eighth Amendment’s ban on cruel
and unusual punishment, announced a new rule of constitutional law made
retroactively applicable on collateral review by the United States Supreme
Court. He argues that Miller renders his sentence unconstitutional, because
he was a juvenile at the time of the charged offenses. The government does not
oppose Simpson’s motion.
      Simpson must make a prima facie showing that his motion satisfies the
§ 2255 requirements for second or successive motions in order to obtain
permission to proceed in the district court. See Reyes-Requena v. United States,
243 F.3d 893, 897-99 (5th Cir. 2001) (holding that the prima facie standard is
incorporated into § 2255). A “prima facie showing” is “simply a sufficient
showing of possible merit to warrant a fuller exploration by the district court.”
Id. at 899 (quoting Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)).




to United States v. Booker, 543 U.S. 220 (2005), when the United States Sentencing
Guidelines were mandatory, see, e.g., id. at 233-34.

                                        2
     Case: 13-40718       Document: 00512526185          Page: 3     Date Filed: 02/07/2014



                                       No. 13-40718
       We do not resolve the ultimate issue of the retroactivity of Miller. 2
However, we find that the Supreme Court’s actions in Miller and the
procedural posture of Miller itself satisfy Simpson’s burden to make a prima
facie showing that his petition rests on a new rule of law made retroactive by
the Supreme Court on collateral review. Miller involved two companion cases;
Miller v. Alabama, which was on direct appeal of conviction and sentence,
Miller, 132 S. Ct. at 2462-63, and Jackson v. Hobbs, which involved a petition
for habeas corpus in the Arkansas state court, brought after the conviction had
been affirmed on direct appeal, id. at 2461-62. The Supreme Court specifically
held that the new rule it announced applied not only to the defendant on direct
appeal in Miller, but also to the defendant in Jackson on collateral review. See
id. at 2463, 2475; State v. Ragland, 836 N.W.2d 107, 116 (Iowa 2013). The
Court considered both cases together, applied its reasoning and holding to both
cases, and specifically held that the defendant in Jackson should be given an
individualized sentencing hearing. See Miller, 132 S. Ct. at 2468-69; see also
Jackson v. Norris, 2013 Ark. 175, at *1-2 (2013) (remanding for resentencing
in accordance with Miller). “There would have been no reason for the Court to
direct such an outcome if it did not view the Miller rule as applying
retroactively to cases on collateral review.” Ragland, 836 N.W.2d at 116.
Further, in Teague v. Lane, the Supreme Court stated that “once a new rule is



       2 There is disagreement among federal and state courts about whether Miller has been
made retroactive to cases on collateral review. Compare Johnson v. United States, 720 F.3d
720, 721 (8th Cir. 2013) (granting a motion for leave to file a successive § 2255 petition based
on Miller), State v. Ragland, 836 N.W.2d 107, 116 (Iowa 2013) (holding that Miller is
retroactive), Jones v. Mississippi, 122 So. 3d 698, 703 (Miss. 2013) (same), and State v.
Simmons, 2011-1810 (La. 10/12/12), 99 So. 3d 28 (applying Miller retroactively), with In re
Morgan, 713 F.3d 1365, 1368 (11th Cir. 2013) (holding that Miller is not retroactive), and
Craig v. Cain, No. 12-30035, 2013 WL 69128, at *2 (5th Cir. Jan. 4, 2013) (same)
(unpublished).



                                               3
    Case: 13-40718    Document: 00512526185       Page: 4   Date Filed: 02/07/2014



                                 No. 13-40718
applied to the defendant in the case announcing the rule, evenhanded justice
requires that it be applied retroactively to all who are similarly situated.” 489
U.S. 288, 300 (1989). This principle further supports the proposition that the
Court’s own application of the Miller rule to a case on collateral review
indicates that the Court considered the rule to be retroactive.
      Given the Supreme Court’s action in Miller, we conclude that Simpson
has made a prima facie showing that his successive petition is based on “a new
rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court that was previously unavailable.” § 2255(h)(2). This grant is,
however, “‘tentative in the following sense: the district court must dismiss the
motion that we have allowed the applicant to file, without reaching the merits
of the motion, if the court finds that the movant has not satisfied the
requirements for the filing of such a motion.’ The district court then is the
second ‘gate’ through which the petitioner must pass before the merits of his
or her motion are heard.” Reyes-Requena, 243 F.3d at 899 (quoting Bennett,
119 F.3d at 470); see also In re Morris, 328 F.3d 739, 741 (5th Cir. 2003).
      We accordingly GRANT Simpson’s motion for authorization to file a
successive § 2255 motion in the district court.




                                       4
