 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 6, 2014                  Decided July 22, 2014

                         No. 12-3037

                 IN RE: ANDRE P. WILLIAMS,
                         PETITIONER


                  Consolidated with 13-3060


          On Motions for Authorization to File a
   Second or Successive Petition Under 28 U.S.C. § 2255
                  (No. 1:91-cr-00559-9)


    Elisabeth S. Theodore, appointed by the court, argued the
cause for petitioner. On the briefs were Justin S. Antonipillai,
appointed by the court, Christopher S. Rhee, appointed by the
court, and Arthur Luk.

     James M. Perez, Assistant U.S. Attorney, argued the cause
for respondent. With him on the brief were Ronald C. Machen
Jr., U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy
Curt, Assistant U.S. Attorneys.

    Before: GARLAND, Chief Judge, SRINIVASAN, Circuit
Judge, and SENTELLE, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
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     SENTELLE, Senior Circuit Judge: Petitioner Andre Williams
has filed with us two motions pursuant to 28 U.S.C. § 2255(h),
seeking certification to file successive motions in the district
court to vacate, set aside, or correct his sentence. For the
reasons stated below, we certify and authorize the district court
to consider the motions.

                       BACKGROUND

     In 1993 Williams was found guilty of conspiring, from May
1983 through March 1991, to participate in a racketeer
influenced corrupt organization (RICO) and to distribute illegal
drugs. He was acquitted of several other charges. During the
early years of the conspiracies Williams was a juvenile, turning
eighteen in May 1987. He was sentenced to life without parole.
In 1998 Williams filed a motion pursuant to 28 U.S.C. § 2255,
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), in the district court. Section 2255(a) states that “[a]
prisoner in custody . . . may move the court which imposed the
sentence to vacate, set aside or correct the sentence.” The
district court denied this first challenge by Williams to his
sentence.

     On May 24, 2012, this court received from Williams a
motion for authorization to file a second or successive § 2255
motion based on the Supreme Court’s decision in Graham v.
Florida, 560 U.S. 48 (2010). On June 24, 2013, he filed another
motion for authorization to file a second or successive § 2255
motion based on the Supreme Court’s decision in Miller v.
Alabama, 132 S. Ct. 2455 (2012).                We subsequently
consolidated these motions and now consider both. Before a
second or successive motion “to vacate, set aside or correct [his]
sentence” is filed in the district court, the “motion must be
certified as provided in section 2244 by a panel of the
appropriate court of appeals . . . .” 28 U.S.C. § 2255(h). Section
                                3

2244 states that

    [t]he court of appeals may authorize the filing of a second
    or successive application [in the district court] only if it
    determines that the application makes a prima facie
    showing that the application satisfies the requirements of
    this subsection.

28 U.S.C. § 2244(b)(3)(C). The relevant requirement of that
subsection is the same requirement found in 28 U.S.C.
§ 2255(h)(2), i.e., that the second or successive motion
“contain[s]— a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.”

    Williams has now filed two successive motions with this
court, seeking certification that each motion meets the
requirements of § 2255(h).

                        DISCUSSION

     The first of the two motions before us asserts that we should
certify the motion because a new rule of constitutional law
became available to Williams when, in 2010, the Supreme
Court, in Graham v. Florida, 560 U.S. at 82, stated that “[t]he
Constitution prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit homicide.”
The second motion argues that it should be certified because in
2012 a new rule of constitutional law also became available to
Williams when, in Miller v. Alabama, 132 S. Ct. at 2469, the
Supreme Court “h[e]ld that the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” We must now
determine whether either or both of Williams’ § 2255(h)
motions makes a prima facie showing that it contains a new rule
                                 4

of constitutional law, made retroactive on collateral review by
the Supreme Court, that was previously unavailable.

    Before making these determinations, however, we first will
address the government’s argument that we should deny
Williams’ Graham motion on timeliness grounds.

                           Timeliness

    Subsection 2255(f)(3) states:

         A 1-year period of limitation shall apply to a motion
         under this section. The limitation period shall run from
         the latest of — the date on which the right asserted was
         initially recognized by the Supreme Court . . .

28 U.S.C. § 2255(f)(3). Graham was decided on May 17, 2010.
That date is thus “the date on which the right asserted was
initially recognized by the Supreme Court.” Consequently,
Williams had one year from that date, until May 17, 2011, to file
his § 2255(h) motion based on Graham. Williams signed his
Graham motion and dated it May 2, 2011; at the end of the
motion he included a “Certificate of Service” which stated that
he served the court of appeals on the same date. May 2, 2011,
is within one year of the Supreme Court’s May 17, 2010,
Graham decision. The government, however, argues that the
motion was untimely, pointing to this court’s “received” date
stamped on the motion, May 24, 2012, more than 2 years
beyond the Graham decision and therefore outside the one-year
filing limitation of § 2255(f)(3).

     Williams argues that this court should reserve the timeliness
issue for the district court. He contends that the applicability of
a statute of limitations defense is a non-jurisdictional affirmative
defense under the AEDPA and should not be considered at this
                                 5

stage, but rather should be considered in the first instance by the
district court. In support of this contention, Williams cites a
case from the Sixth Circuit, In re McDonald, 514 F.3d 539 (6th
Cir. 2008), in which, according to Williams, the court
considered the same timeliness issue and held that the one-year
statute of limitations is not within the purview of the court of
appeals’ consideration at the certification stage. In response the
government, citing cases from the Fifth and Eleventh Circuits,
counters that the Circuits are divided on the issue of whether
courts of appeals have discretion to consider the timeliness of a
motion under § 2255(f). See In re Lewis, 484 F.3d 793, 796-98
(5th Cir. 2007); In re Wilson, 442 F.3d 872, 874-78 (5th Cir.
2006); In re Hill, 437 F.3d 1080, 1082-83 (11th Cir. 2006). The
government goes on to note that although the Supreme Court has
not addressed this specific issue, in Wood v. Milyard, 132 S. Ct.
1826 (2012), the Court held that where neither the district court
nor the government addressed the timeliness of an initial habeas
petition, “courts of appeals, like district courts, have the
authority–though not the obligation–to raise a forfeited
timeliness defense on their own initiative,” id. at 1834. The
government argues that although Wood addresses “initial”
petitions for collateral relief, nothing prohibits courts of appeals
from undertaking the same analysis when exercising their
gatekeeping roles under § 2244(b)(3)(C). We agree, and will
exercise our discretion to consider whether Williams has made
a prima facie showing of timeliness.

     In response to the government’s argument that his motion
was untimely, Williams contends that the motion satisfies
Federal Rule of Appellate Procedure 25(a)(2)(C), “Inmate
filing,” also known as the “prison mailbox rule.” Rule
25(a)(2)(C) states in pertinent part:

    A paper filed by an inmate . . . is timely if deposited in the
    institution’s internal mailing system on or before the last
                                6

    day for filing. . . . Timely filing may be shown by a
    declaration in compliance with 28 U.S.C. § 1746 or by a
    notarized statement, either of which must set forth the date
    of deposit and state that first-class postage has been
    prepaid.

      Williams argues that the deposit of his Graham motion with
prison officials satisfies the prison mailbox rule, and thus was
timely filed with this court, because both the signature date and
the certificate of service indicate that it was given to prison
officials for mailing on May 2, 2011, before the statute of
limitations period closed on May 17, 2011. Williams further
argues that he satisfies the prison mailbox rule because he
subsequently filed an affidavit in which he swore under penalty
of perjury that he deposited his Graham motion into the prison
mailing system on May 2, 2011, and did so with correct prepaid
first class postage.

     In response the government, relying on a case from the
Ninth Circuit, argues that even if Williams’ filings comply with
the prison mailbox rule, we should not excuse his lack of
diligence in following up on his petition after he gave it to
prison officials. See Huizar v. Carey, 273 F.3d 1220, 1223 (9th
Cir. 2001) (“A prisoner who delivers a document to prison
authorities gets the benefit of the prison mailbox rule, so long as
he diligently follows up once he has failed to receive a
disposition from the court after a reasonable period of time.”).
The government contends that Williams was not sufficiently
diligent when he stood silent for more than a year after he failed
to receive any response from either the court or the government.
But at oral argument the government did not dispute that
Williams’ affidavit was sufficient to establish Williams’ filing
under the prison mailbox rule. In other words, the government
does not contest that Williams has offered proof of filing that
complies with the prison mailbox rule, rendering the filing
                                7

timely at the time it was made. Because the government has
effectively conceded that Williams’ motion was prima facie
timely, we need not decide whether we agree with the Ninth
Circuit’s recognition and application of a diligence requirement.
Cf. Ray v. Clements, 700 F.3d 993, 1012 (7th Cir. 2012) (“We
. . . reject the Ninth Circuit’s ‘diligence’ requirement.”).

                     Prima facie Showing

     As noted, Williams has filed two successive § 2255
motions, the first based on Graham and the second based on
Miller. Pursuant to § 2244, as incorporated by § 2255, for this
court to certify a successive motion the motion must make a
prima facie showing that it contains a previously unavailable
new rule of constitutional law made retroactive on collateral
review by the Supreme Court. In arguing that his Graham
motion should be certified, Williams emphasizes that he needs
only to make a prima facie showing in order for certification to
be given. He proposes that such a showing is a low hurdle. See
In re McDonald, 514 F.3d 539, 544 (6th Cir. 2008). According
to Williams, Graham created a new constitutional rule in that for
the first time it rendered a categorical ban on life-without-parole
sentences for non-homicide juvenile offenders. Williams further
argues that this new constitutional rule was unavailable to him
because at the time of both his conviction and his first § 2255
motion in 1998, juvenile life-without-parole sentences had not
yet been declared unconstitutional.

     The government responds that it agrees with Williams that
Graham is retroactive to cases on collateral review. But the
government contends that because Williams’ offenses of
conviction extended into adulthood, he does not actually rely on
Graham but instead relies on an extension of Graham. Noting
that Williams was convicted for participating in a conspiracy
that he joined in his juvenile years and which continued into his
                                8

adulthood, the government argues that nothing in Graham
suggests that the Supreme Court was considering juveniles
whose criminal conduct extended into adulthood. The
government contends that Williams cannot rely on Graham, and
therefore is not entitled to relief on the basis of Graham, because
Graham’s holding does not extend to conspiracies straddling the
age of majority.

     Williams counters that a review of the merits at this stage
of the proceedings is not required, but if this court decides to
proceed with a review of the merits there is at least a prima facie
basis for finding that Williams’ sentence is unconstitutional
under Graham. In support of this argument Williams contends
that, contrary to the government’s argument that Graham does
not extend to inmates whose criminal conduct continued into
their adult years, Graham’s categorical rule applies to all non-
homicide criminal acts that occur while the offender is under the
age of eighteen. Graham, according to Williams, neither
explicitly nor implicitly carved juvenile continuing crimes out
of its holding.

     We agree with Williams that a review of the merits at this
stage is not required. We further agree that the government’s
argument that we should refuse certification of Williams’
Graham motion goes to the merits of the motion, asking us in
effect to make a final determination of whether the holding in
Graham will prevail for Williams. But our inquiry is limited to
whether Williams’ motion has made a prima facie case that it
“contain[s] — a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was
previously unavailable.” As the Fifth Circuit noted, “Graham
clearly states a new rule . . . that was not previously available:
the case was certainly the first recognition that the Eighth
Amendment bars the imposition of life imprisonment without
parole on non-homicide offenders under age eighteen.” In re
                                 9

Sparks, 657 F.3d 258, 260 (5th Cir. 2011). Furthermore, the
government agrees that Graham is retroactive to cases on
collateral review. Consequently, we conclude that Williams has
made a prima facie showing that his Graham motion satisfies
the necessary requirements for our certification.               The
government’s argument concerning the application of the new
rule in Graham to this case, i.e., how Graham applies to a case
concerning a crime that straddled the age of majority, is a
question for the district court in the first instance, not the court
of appeals.

                         *   *   *   *   *

     Williams filed a second successive § 2255 motion based on
Miller v. Alabama, 132 S. Ct. 2455 (2012). Williams notes that
in Miller, which involved a juvenile sentenced to life without
parole for homicide, the Supreme Court held that the Eighth
Amendment categorically forbids mandatory life-without-parole
sentences for offenses committed by juveniles. As he did in his
Graham argument above, Williams argues that this court should
grant his Miller motion because it establishes, on a prima facie
basis, pursuant to 28 U.S.C. § 2255(h)(2), that it is premised on
“a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.”

     First, Williams contends that the Miller rule is a new
constitutional rule because the Supreme Court held for the first
time that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without the possibility of parole for
juvenile offenders. Second, Williams argues that the Miller rule
was previously unavailable because both at the time of his final
conviction in 1997 and his first § 2255 petition in 1998,
mandatory life-without-parole sentences for juvenile offenders
had not yet been declared unconstitutional. Third, Williams
                                10

asserts that the Supreme Court announced the Miller rule’s
retroactivity by applying it on collateral review. Also as he did
in his Graham argument, Williams contends that the sole
question at this stage is whether he has made a sufficient prima
facie showing that Miller meets the elements of § 2255(h)(2) so
as to warrant a fuller exploration by the district court. But he
claims that if this court decides on a merits analysis, it will
conclude that his sentence is unconstitutional under Miller. In
support of this claim, he notes that he received a mandatory life-
without-parole sentence and that he was sentenced for juvenile
conduct.

      As we noted in our Graham discussion above, our sole task
is to determine whether Williams has made a prima facie
showing that his Miller motion satisfies the necessary
requirements of § 2255(h). The government agrees that Miller
is retroactive to cases on collateral review. But the government
argues that Williams cites Miller only to the extent it reaffirmed
Graham, and no more. The government implies that Miller is a
new rule with respect to juvenile homicide offenders, but that
with respect to non-homicide juvenile offenders, such as
Williams, Miller is not a new rule that was previously
unavailable. In any event, argues the government, just as
Williams does not actually rely on Graham, he does not actually
rely on Miller because that case did not address life-without-
parole sentences for defendants who entered a conspiracy in
their juvenile years and exited in adulthood.

     We do not agree that Williams has not made a prima facie
showing that he relies on Miller. The government acknowledges
that in Miller the Court noted that the cases at bar “implicate two
strands of precedent”: the Graham line of cases, i.e., life without
the possibility of parole for juveniles, and the mandatory
imposition of sentencing cases. 132 S. Ct. at 2463. Since
Graham concerned life-without-parole sentences and not, as in
                               11

Miller, mandatory life-without-parole sentences, we conclude
that Williams has made a prima facie showing that in relying on
Miller he is relying on a new rule of constitutional law as
required by § 2255(h). Williams has therefore made a prima
facie showing that his Miller motion satisfies the necessary
requirements for our certification. Again, the government’s
question of whether the new rule in Miller extends to a prisoner
like Williams, who entered a conspiracy in his juvenile years
and exited it in adulthood, goes to the merits of the motion and
is for the district court, not the court of appeals.

                       CONCLUSION

     Williams’ motions filed under 28 U.S.C. § 2255(h) are
certified for filing in the district court. We express no opinion
as to the merits of either motion.
