                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       February 10, 2017

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

In re: JULIUS DARIUS JONES,
                                                   No. 17-6008
             Movant.                        (D.C. No. 5:07-CV-01290-D)
                                                   (W.D. Okla.)
                     _________________________________

                                     ORDER
                        _________________________________

Before TYMKOVICH, Chief Judge, and KELLY, Circuit Judge.*
                 _________________________________

PER CURIAM.
                        _________________________________

      Movant Julius Darius Jones, an Oklahoma prisoner proceeding through

counsel, seeks an order authorizing him to file a second or successive capital habeas

petition under 28 U.S.C. § 2254 so he may assert a claim for relief based on Hurst v.

Florida, ___ U.S. ___, 136 S. Ct. 616 (2016). See 28 U.S.C. § 2244(b)(3). To obtain

authorization, Jones must make a prima facie showing that his claim meets the

gatekeeping requirements of 28 U.S.C. § 2244(b). Id. § 2244(b)(3)(C); Case v.


      *
        The Honorable Neil Gorsuch considered this Motion for Authorization
originally, but did not participate in this Order. The practice of this court permits the
remaining two panel judges, if in agreement, to act as a quorum in resolving this
proceeding. See 28 U.S.C. § 46(d); United States v. Wiles, 106 F.3d 1516, 1516 n*
(10th Cir. 1997) (quorum of panel judges may resolve an appeal) (collecting cases);
In re Gibbs, 223 F.3d 312, 313 (5th Cir. 2000) (quorum of panel of judges may
resolve a motion for authorization).
Hatch, 731 F.3d 1015, 1027-29 (10th Cir. 2013). Because Jones has not done so, we

deny authorization.

      Jones was convicted in 2002 of felony murder and sentenced to death. The

judgment and sentence were affirmed on direct appeal in 2006, and his subsequent

application for state post-conviction relief was denied. Jones filed a federal habeas

petition in 2007 challenging his conviction and sentence on grounds of ineffective

assistance of trial and appellate counsel. The district court denied relief in 2013, and

this court ultimately affirmed the denial in 2015. The Supreme Court denied

certiorari in October 2016. Jones now seeks authorization to file a second § 2254

petition so that he can assert the following claim: his sentence of death violates the

Fifth, Sixth, Eighth, and Fourteenth Amendments because the jury in his case was not

instructed that it had to find beyond a reasonable doubt that the aggravating

circumstances outweighed the mitigating circumstances before it could impose a

sentence of death.

      We may authorize a successive claim when “the claim relies 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. § 2244(b)(2)(A). Jones contends

that Hurst sets forth such a rule. He asserts that the Supreme Court in Hurst

“announced, for the first time, that the weighing decision underlying a sentence of




                                           2
death, must be found by a jury beyond a reasonable doubt.” Mot. for Authorization

at 2.1 And he contends that “Hurst also warrants retroactive application.” Id. at 3.2

       Assuming for the sake of argument that Hurst announced a new rule of

constitutional law about the weighing decision, we turn to the question of

retroactivity. Jones argues that “Hurst warrants retroactive application,” Mot. for

Authorization at 3, because it fits an exception to the general rule against retroactive

application of new procedural criminal rules set forth in Teague v. Lane, 489 U.S.

288, 310 (1989). Jones first contends that the new rule he identifies is a substantive

rule of criminal law, which is entitled to retroactive application, Welch v. United

States, ___ U.S. __, 136 S. Ct. 1257, 1264 (2016) (“[N]ew substantive rules generally

apply retroactively.” (internal quotation marks omitted)). Alternatively, he argues

that if it is a procedural rule, it is a watershed procedural rule, which is also entitled

to retroactive application, id. (“[W]atershed rules of criminal procedure, which are


       1
        All references to pages within the Motion for Authorization and its attached
exhibits are to the page number in the ECF header on the filed document.
       2
        To meet the gatekeeping requirements, Jones’s claim also must not have been
presented in an earlier federal habeas petition. See 28 U.S.C. § 2244(b)(1), (2). In its
response to Jones’s motion, the government argues that Jones has previously raised
his proposed claim because in his first habeas petition he contended that his appellate
counsel was ineffective for failing to argue that it was constitutional error for the trial
court not to instruct the jury that its determination of whether the aggravating
circumstances outweigh the mitigating circumstances must be found beyond a
reasonable doubt. We need not decide whether, for purposes of § 2244(b), raising a
claim of ineffective assistance of counsel based on an underlying constitutional error
equates to raising a claim based on the underlying constitutional error itself, because
we conclude that Jones’s claim does not otherwise meet the gatekeeping
requirements.

                                             3
procedural rules implicating the fundamental fairness and accuracy of the criminal

proceeding, will also have retroactive effect.” (internal quotation marks omitted)).

      But as we made clear in In re Gieswein, 802 F.3d 1143 (10th Cir. 2015)

(per curiam), and Cannon v. Mullin, 297 F.3d 989 (10th Cir. 2002), whether, in our

view, a new rule warrants retroactive application under Teague and its progeny is not

the proper inquiry for purposes of § 2244(b)(2)’s gatekeeping requirements. Under

§ 2244(b)(2)(A), “the Supreme Court is the only entity that can ‘ma[k]e’ a new rule

retroactive. The new rule becomes retroactive, not by the decisions of the lower

court or by the combined action of the Supreme Court and the lower courts, but

simply by the action of the Supreme Court.” Tyler v. Cain, 533 U.S. 656, 663

(2001). “[T]he only way [the Supreme Court] could make a rule retroactively

applicable is through a ‘holding’ to that effect.” Cannon, 297 F.3d at 993 (10th Cir.

2002) (quoting Tyler, 533 U.S. at 663); accord Gieswein, 802 F.3d at 1146. The

Supreme Court has not held that its decision in Hurst is retroactively applicable to

cases on collateral review.

      Jones’s invitation to us to find Hurst retroactively applicable not only ignores

our clear precedent in Cannon and Gieswein, but relies on authority from the Seventh

Circuit3 that we have explicitly rejected. “It is clear that the mere fact a new rule


      3
         Though he does not identify it as a Seventh Circuit case, Jones cites Price v.
United States, 795 F.3d 731, 734 (7th Cir. 2015), as support for his statement that
“[i]f a new rule is substantive in nature, the Supreme Court does not have to
explicitly declare it to be retroactive because the general rule is that substantive rules
should be given retroactive effect.” Mot. for Authorization at 4. We rejected Price’s
                                                                               (continued)
                                            4
might fall within the general parameters of overarching retroactivity principles

established by the Supreme Court (i.e., Teague) is not sufficient.” Cannon, 297 F.3d

at 993. “[I]n the context of deciding a motion for authorization, it is not this court’s

task to determine whether (or not) a new rule fits within one of the categories of rules

that the Supreme Court has held apply retroactively. Our inquiry is statutorily

limited to whether the Supreme Court has made the new rule retroactive to cases on

collateral review.” Gieswein, 802 F.3d at 1146 (citation omitted).

      Jones insists in his reply that Hurst announced a new rule of substantive law,

which, by its very nature, is retroactively applicable. But the Supreme Court has not

held that Hurst announced a substantive rule, and it is not our role to do so in the first

instance in deciding a motion for authorization. As the Supreme Court explained in

Tyler, it is unlikely that a court of appeals could decide within the thirty days allotted

it under § 2244(b)(3)(D) whether a motion for authorization made the required prima

facie showing “if [the court] had to do more than simply rely on Supreme Court

holdings on retroactivity. The stringent time limit thus suggests that the courts of

appeals do not have to engage in the difficult legal analysis that can be required to

determine questions of retroactivity in the first instance.” 533 U.S. at 664. Because


approach in Gieswein precisely because the Seventh Circuit decided for itself that the
new rule at issue was substantive and therefore qualified for retroactive application
under the Supreme Court’s general retroactivity principles. 802 F.3d at 1148. “Our
sister circuit did what we have said we cannot do . . . .” Id. Whether Jones’s failure
to include the court designation in his citation to Price or to acknowledge our
rejection of that decision was intentional or merely sloppy, neither is acceptable
practice before this court.

                                            5
the Supreme Court has not held its decision in Hurst to be retroactively applicable to

cases on collateral review, Jones cannot meet the requirements of § 2244(b)(2)(A)

necessary for authorization of his proposed claim.

      The Motion for Authorization is therefore denied. This denial of authorization

“shall not be appealable and shall not be the subject of a petition for rehearing or for

a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). The Federal Public Defender for the

District of Arizona is appointed to represent Julius Darius Jones pursuant to

18 U.S.C. § 3006A(a)(2)(B) effective nunc pro tunc to the date the Motion for

Authorization was filed in this court.




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