           Case: 19-14018   Date Filed: 05/26/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14018
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 1:19-cv-00847-AT



DAVID TIMOTHY MOORE,

                                                         Petitioner-Appellant,

                                versus

WARDEN,

                                                        Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (May 26, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:
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      David Moore, a Georgia prisoner serving a life sentence, filed the instant

habeas corpus action under 28 U.S.C. § 2254 to challenge the Georgia Board of

Pardons and Paroles’ denial of his parole application. Before the district court,

Moore principally relied on Graham v. Florida, 560 U.S. 48 (2010), to argue that

the Board’s decision violated the Eighth Amendment’s prohibition on cruel and

unusual punishments. Accepting the magistrate judge’s report and

recommendation, the district court held that Graham did not apply because

whereas the Court there limited its decision to life-without-parole sentences,

Moore received a life-with-the-possibility-of-parole sentence and, indeed, had been

considered for parole. The district court further held that Moore’s parole

eligibility—pursuant to which he had been considered and would be considered

again—satisfied the Graham Court’s observation that states must give juvenile

defendants sentenced to life for non-homicide crimes “some meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.”

560 U.S. at 75. The district court thus concluded that the magistrate judge had

correctly rejected Moore’s Graham-based claim, adopted the magistrate judge’s

report and recommendation as the court’s order, and denied Moore’s § 2254

petition.

      The district court then went on, however, to grant a certificate of

appealability using the following language: “Having so ruled . . . this Court finds


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reasonable jurists could debate whether [Moore’s] argument, that he has been

required to serve thirty-two years while defendants convicted of murder committed

as adults who have received life sentences have been released on parole after

shorter periods of incarceration, entitles him to relief under the Constitution.”

      We review the district court’s denial of a habeas petition de novo. Wilson v.

Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1320 (11th Cir. 2018). Our scope

of review is clear—although pro se pleadings and briefs such as Moore’s are

liberally construed, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), our

review is restricted to issues specified in the certificate of appealability, Kuenzel v.

Allen, 488 F.3d 1341, 1343 (11th Cir. 2007); see also Hodges v. Att’y Gen., Fla.,

506 F.3d 1337, 1340–42 (11th Cir. 2007).

      We find the district court’s COA difficult to discern. It seems designed to

tee up for appellate review an issue that is somewhat different from the Graham-

based argument that served as the primary focus of Moore’s petition. As we read

it, the COA’s language—pertaining to Moore’s contention “that he has been

required to serve thirty-two years while defendants convicted of murder committed

as adults who have received life sentences have been released on parole after

shorter periods of incarceration”—authorizes Moore to mount a challenge the

proportionality of his sentence of the sort typically associated with decisions like

Solem v. Helm, 463 U.S. 277 (1983).


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      Moore faces two (related) problems on appeal. The first is that his briefs do

not present the sort of freestanding proportionality-based challenge that the district

court’s COA seems to authorize. Instead, Moore’s appeal focuses on a broad-

based challenge to the “manner, procedure and/or system The Board has used and

continues to use,” arguing, as he did below, that the Board’s policies and

procedures do not afford juveniles serving life sentences for non-homicide crimes a

“meaningful opportunity to obtain release based on demonstrated maturity and

rehabilitation,” as Graham requires. Br. of Petitioner at 18–19, 20. In particular,

Moore argues, as he did below, that the fact that the Board uses the same procedure

to evaluate those sentenced as juveniles and those sentenced as adults violates

Graham.

      To be sure, Moore’s brief asserts at several points that he has served an

“excessive and disproportionate” sentence, but in context it is clear that those

assertions are in service of his Graham-based challenge to the Board’s policies and

procedures. His argument, that is, is not that his sentence is disproportionate and

thus unconstitutional, but rather that the Board’s policies are invalid under Graham

and have caused him to serve a disproportionate sentence. Even liberally

construing Moore’s pro se brief, we do not think it raises a freestanding

proportionality argument of the sort the COA appears to authorize. See Access

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).


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      Which leads us to the second problem that Moore faces. In pressing his

Graham-based argument, he seems to have strayed beyond the issue specified in

the COA. Because he—and we—may not do so, that is a sufficient reason for

refusing him relief. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th

Cir. 1998).

      Having said that, out of an abundance of caution—which we exercise both

because Moore is pro se and because the district court’s COA is opaque—we

conclude that the unique circumstances of this case warrant sua sponte expansion

of the COA to include Moore’s Graham-related argument. See Mays v. United

States, 817 F.3d 728, 733 (11th Cir. 2016); Thomas v. Crosby, 371 F.3d 782, 796

(11th Cir. 2004) (“[O]ur cases establish the power of our court to add issues to a

COA sua sponte.”).

      Despite reaching the merits of Moore’s Graham-based argument, however,

we reject them for the same reasons that the magistrate judge and district court

rejected them. In Graham, the Supreme Court held that “the Eighth Amendment

prohibits a State from imposing a life without parole sentence on a juvenile

nonhomicide offender.” 560 U.S. at 75. The Court expressly limited its holding to

life-without-parole sentences. Id. at 63, 74–75; see also Loggins v. Thomas, 654

F.3d 1204, 1223 (11th Cir. 2011). Moore, as we have noted, was sentenced to life

with the possibility of parole. While the Eighth Amendment prohibits states from


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determining at the outset that a juvenile offender will never be fit to reenter

society, “it does not require the State to release that offender during his natural

life,” so long as the state gives juvenile defendants “some meaningful opportunity

to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560

U.S. at 75.

      For the reasons ably explained by the magistrate judge and the district court,

Moore has received the “meaningful opportunity” contemplated by Graham. The

parole board indicated that it considered Moore’s rehabilitative efforts in denying

him parole in 2018, will again consider Moore for parole in February 2021, and

has routinely exercised its discretion to release prisoners on parole.

      The district court properly denied Moore’s petition for habeas corpus.

      AFFIRMED.




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