                            PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-284


In re: TADD ERROL VASSELL, a/k/a Todd Errol Vassell, a/k/a
Chris Daley, a/k/a Michael Derwitt, a/k/a Andre Nunes,
a/k/a Corey Ryant, a/k/a Eric Scott,

                Movant.


On Motion for Authorization to File Successive § 2255 Motion in
the United States District Court for the Eastern District of
Virginia, at Norfolk.     Rebecca Beach Smith, Chief District
Judge. (2:93-cr-00081-5)


Argued:   March 19, 2014                    Decided:   May 6, 2014


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Motion denied by published opinion.     Judge Niemeyer wrote the
opinion, in which Judge Agee and Senior Judge Hamilton joined.


ARGUED:   Bryan Scott Gowdy, CREED & GOWDY, PA, Jacksonville,
Florida, for Movant. Richard Daniel Cooke, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Respondent.    ON BRIEF:
Dana J. Boente, Acting United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Respondent.
NIEMEYER, Circuit Judge:

       Tadd Vassell was convicted in 1997 of conspiracy to traffic

in controlled substances and sentenced to a mandatory term of

life   imprisonment         without         parole.          His   participation        in     the

conspiracy began when he was 17 years old and continued until

after he had turned 18.             Following his conviction, Vassell filed

several      motions     under     28        U.S.C.      §    2255     to    challenge         his

sentence, and all were dismissed or denied.

       On June 25, 2012, the United States Supreme Court decided

Miller      v.   Alabama,    132       S.    Ct.    2455      (2012),       holding     that    a

mandatory        life-without-parole           sentence           imposed   on    a   juvenile

homicide offender violates the Eighth Amendment.                                  Within one

year of that decision, on June 24, 2013, Vassell filed this

motion      under    §    2255(h),          seeking       authorization          to     file    a

successive § 2255 motion that claims reliance on Miller as “a

new rule of constitutional law.”                   28 U.S.C. § 2255(h)(2).

       We deny Vassell’s motion for authorization.                             Even assuming

that Vassell qualifies as a juvenile offender, his proposed §

2255    motion      would    necessarily           rely      on    a   right     that    became

available to him in 2010 with the Supreme Court’s decision in

Graham      v.    Florida,       560    U.S.       48     (2010),       which     held       that

sentencing a juvenile who did not commit a homicide to life

imprisonment without parole violates the Eighth Amendment, and

not    on   Miller,      which     extended        the       Graham    rule      to   prohibit

                                               2
mandatory life-without-parole sentences for juveniles convicted

of committing homicide.               And because Graham was decided more

than one year before Vassell filed this § 2255(h) motion, the

successive § 2255 motion he seeks leave to file would be barred

by the applicable 1-year statute of limitations in 28 U.S.C. §

2255(f)(3).    We therefore decline to authorize its filing.


                                                I

     Vassell’s     1997       conspiracy            conviction      was   based    on     his

participation     in    a     drug-trafficking           conspiracy       that    began    in

December 1990 and continued until August 1992.                            As Vassell was

born in August 1973, he was 17 for the first eight months of the

conspiracy,      and     18        thereafter.              Based    on    drug    amounts

distributed by members of the conspiracy both before and after

Vassell   turned       18,    as    well    as      on   certain     enhancements       that

applied under the Sentencing Guidelines, the district court was

required by the Guidelines to impose a life sentence without

parole.   That sentence was imposed before the Supreme Court, in

United States v. Booker, 543 U.S. 220 (2005), made Guidelines

sentencing    discretionary.               We   affirmed         Vassell’s     sentence    on

appeal, United States v. Vassell, No. 97-4407, 1998 WL 637419,

at *4 (4th Cir. Sept. 11, 1998) (per curiam), and the Supreme

Court   denied     Vassell’s         petition         for    a    writ    of   certiorari,

Vassell v. United States, 525 U.S. 1113 (1999).


                                                3
      About    one       year   later,    Vassell    filed       his   first       §     2255

motion, arguing in part that his defense counsel was ineffective

for failing to seek a downward departure based on his age.                                The

district court denied the motion, and we dismissed his appeal.

See United States v. Vassell, 22 F. App’x 193 (4th Cir. 2001)

(per curiam).        Thereafter, Vassell filed three pro se motions

for leave to file a successive § 2255 motion, each of which we

dismissed or denied.

      Based    on    the    Supreme      Court’s    2012    decision         in    Miller,

which,   Vassell          argues,     made      available        a     new        rule     of

constitutional law applicable to him, Vassell filed the current

motion   under       §     2255(h)    seeking       authorization        to        file    a

successive § 2255 motion in the district court.                        He attached a

copy of his proposed § 2255 motion as an exhibit.                            His motion

was filed within one year of when Miller was decided.


                                           II

       While   a     federal     inmate    may     file    one    § 2255      motion       to

“vacate, set aside or correct [his] sentence” after his judgment

of conviction has become final, 28 U.S.C. § 2255(a), he must

obtain authorization from “a panel of the appropriate court of

appeals” before presenting “[a] second or successive motion,”

id.   § 2255(h);          see     also    Rules      Governing         Section           2255

Proceedings, Rule 9.            And § 2255(h) provides that “[a] second or


                                           4
successive motion must be certified as provided in section 2244

. . . to contain” either “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable” or (not applicable here) “newly

discovered       evidence”      bearing       on     the     defendant’s      actual

innocence.       28    U.S.C.   §   2255(h)        (emphasis   added).        Section

2255(h) thus incorporates the prefiling authorization procedure

established in § 2244 for state prisoners’ second or successive

habeas corpus applications.            Under this procedure, “[t]he court

of appeals may authorize the filing of a second or successive

application only if it determines that the application makes a

prima    facie     showing      that    the        application      satisfies    the

requirements of [§ 2244(b)]” -- namely, as relevant here, that

the application presents a claim that “relies on a new rule of

constitutional        law,   made   retroactive       to    cases   on   collateral

review by the Supreme Court, that was previously unavailable.”

Id. § 2244(b)(3)(C), (b)(2)(A).

     Vassell contends that his § 2255(h) motion satisfies these

requirements in that he has made a prima facie showing that (1)

Miller recognized a qualifying new rule of constitutional law

and (2) the claim he sets forth in his proposed § 2255 motion

relies on Miller, thus satisfying the new rule criterion in 28

U.S.C.   §   2244(b)(2)(A),         (b)(3)(C)       and    warranting    “a    fuller

exploration” by the district court.                  He bases his argument on

                                          5
the breadth of Miller’s holding that “mandatory life without

parole for those under the age of 18 at the time of their crimes

violates      the      Eighth        Amendment’s       prohibition         on    ‘cruel        and

unusual punishments.’”               Miller, 132 S. Ct. at 2460.

      The government concedes that Miller established “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)(2),         2244(b)(2)(A).           But    it    argues      that

Miller’s new rule does not apply to Vassell for two reasons.

First,     it        asserts     that       because     Vassell      continued          in     the

conspiracy past his 18th birthday, he does not qualify as a

juvenile      offender         who   can     benefit    from    Miller.           Second,       it

argues that even if Vassell does qualify as a juvenile offender,

Miller     only        recognized       a    new      rule    for     juvenile       homicide

offenders.           Because      Vassell     is    serving     a    life-without-parole

sentence      for      a   nonhomicide        crime,    his     claim     --     that     he    is

entitled to resentencing based on his age when he committed the

offense    --        became     available      with     the     Supreme         Court’s      2010

decision        in     Graham,       which     held     that        “[t]he      Constitution

prohibits the imposition of a life without parole sentence on a

juvenile offender who did not commit homicide.”                                  Graham, 560

U.S. at 82.           Because the Graham rule first became available to

Vassell in        2010,     the      government       argues,    his      proposed      §    2255

motion would be time-barred by the 1-year limitation period in §

                                                6
2255(f)(3),         which    runs       from   “the    date     on    which   the    right

asserted was initially recognized by the Supreme Court.”

        The question of whether Vassell’s proposed § 2255 motion

would be time-barred thus depends in the first instance on when

the Supreme Court “initially recognized” the right Vassell seeks

leave to assert -- if in Graham, the motion would be beyond the

1-year period of limitation; if in Miller, it would be timely.

        The   Supreme       Court’s      Eighth     Amendment        jurisprudence    with

respect to juveniles * is articulated in three recent cases -- the

2005 decision in Roper v. Simmons, 543 U.S. 551 (2005); the 2010

decision in Graham; and the 2012 decision in Miller.                           In Roper,

the   Court     held      that    the    death     penalty     cannot    be   imposed     on

juvenile offenders, recognizing “the diminished culpability of

juveniles” “by reason of [their] youth and immaturity.”                             Roper,

543 U.S. at 571.            In Graham, the Court held that juveniles who

committed nonhomicide offenses                     may not be sentenced to life

without parole.           Graham, 560 U.S. at 74-75.                  That holding left

open the possibility that a juvenile who committed a homicide

could       still    be   given     a    life-without-parole           sentence.      That

possibility, however, was narrowed by Miller, which held that a

juvenile       who    committed         homicide      cannot    be     sentenced     to   a

        *
       While        the parties dispute whether Vassell was a juvenile
based on the        fact that his conspiracy offense straddled his 18th
birthday, we        assume for purposes of our discussion, but without
deciding the        question, that he was a juvenile.


                                               7
mandatory life-without-parole sentence.                      Miller, 132 S. Ct. at

2467.    The Miller holding still leaves open the possibility that

a   juvenile    who    committed    homicide          can    be   sentenced        to   life

without parole so long as the sentence is not mandatory but is

imposed through an individualized procedure.                      Id. at 2469, 2471.

      Vassell    did    not    commit   homicide,           but   he    did    receive     a

mandatory sentence of life without parole.                        He claims that he

should at least have received an individualized life sentence --

not a mandatory one -- for his nonhomicide crime, grounding his

argument on Miller.            But the rule governing his claim first

became   available      to    him   with       the    2010    decision        in   Graham.

Graham    prohibited         imposing   any          sentence      of    life      without

parole -- mandatory or individualized -- for juveniles convicted

of committing nonhomicide offenses, and the rule thus became

applicable regardless of the procedure used for imposing the

sentence.      Miller did not add to this right for juveniles who

committed nonhomicide crimes.              To be sure, the Miller Court in

several places phrased its holding broadly to cover mandatory

life-without-parole sentences for all juvenile offenders.                               See,

e.g., Miller, 132 S. Ct. at 2460.                But the Court elsewhere made

clear that it was retaining the distinction Graham had drawn

“between homicide and nonhomicide offenses.”                        Id. at 2466 n.6.

Indeed, when it compared the rule it was adopting to the one

previously recognized in Graham, the Miller Court explained that

                                           8
“Graham     established         one     rule       (a    flat    ban)       for     nonhomicide

offenses,     while       we    set    out     a     different        one    (individualized

sentencing)        for    homicide       offenses.”             Id.     (emphasis       added).

Thus,      when    Miller       stated    that          no    juvenile       may    receive   a

mandatory life-without-parole sentence, it was stating the rule

established by Graham for nonhomicide offenses and a new rule

for homicides.

      In short, regardless of how Vassell argues his claim, he

cannot justify further exploration of it by a district court.

The proposition remains fixed as a matter of law that he could

have made his claim based on the rule in Graham, which became

available to him two years earlier.                          Miller simply does no work

for a nonhomicide offender such as Vassell, and it therefore

cannot     serve     to    restart       the       1-year      limitation          period   that

applies to Vassell’s proposed claim.


                                               III

      In    response      to    the    government’s            argument      that     Vassell’s

proposed § 2255 motion would be barred by the 1-year limitation

period in § 2255(f)(3), Vassell argues that any consideration of

the statute of limitations is premature at this stage when we

are   applying      only       the    standard       applicable        for    authorizing      a

successive § 2255 motion.                He relies, in this regard, on In re

McDonald, 514 F.3d 539, 543 (6th Cir. 2008), which held that §


                                                9
2244(b)      does       not     allow         consideration           of    the    statute     of

limitations during the authorization stage.

       It is true that in considering a § 2255(h) request for

authorization, we are not considering the merits of Vassell’s

proposed § 2255 motion.                  See In re Williams, 330 F.3d 277, 281-

82   (4th    Cir.       2003).           We   are     asked      only      to    determine     the

preliminary question of whether he can pursue a successive §

2255 motion, and that question is determined by application of a

specified, limited procedure.                         But nothing in that procedure

requires us to authorize a successive § 2255 motion that is

plainly barred as a matter of law.

       Section        2255(h)      requires      a     court     of    appeals     considering

whether to authorize a second or successive § 2255 motion to

follow the gatekeeping procedure “provided in section 2244.”                                    28

U.S.C. § 2255(h).             Section 2244, in turn, states that “[b]efore

a second or successive application permitted by this section is

filed in the district court, the applicant shall move in the

appropriate        court      of    appeals          for    an   order      authorizing        the

district         court     to       consider          the     application.”              Id.     §

2244(b)(3)(A).            Addressing           the    standard        to    be    applied,     the

statute provides that “[t]he court of appeals may authorize the

filing      of    a    second       or    successive          application         only   if     it

determines that the application makes a prima facie showing”

that   it    satisfies        the    requirements           of    § 2244(b),        namely,     as

                                                 10
applicable here, that it presents a claim that “relies on a

[qualifying]        new   rule      of        constitutional        law.”         Id.

§ 2244(b)(3)(C), (b)(2)(A) (emphasis added).                   Thus, insofar as

the statute specifies that an applicant seeking to file a second

or successive § 2255 motion must make a prima facie showing that

§ 2244(b)’s requirements are satisfied, it makes such a showing

necessary;    but    it   does    not    provide    that   such     a   showing   is

sufficient for receiving prefiling authorization.

     As such, while our primary consideration in reviewing a

request for authorization in this kind of case is whether the

applicant made the requisite prima facie showing about a new

rule of constitutional law, nothing in either § 2255 or § 2244

requires us to ignore other considerations and authorize the

filing of a successive § 2255 motion that, for instance, would

clearly be time-barred.           The statute, we conclude, simply does

not require such an exercise in futility.                      In reaching this

conclusion, we join other courts of appeals that have recognized

as appropriate consideration of the timeliness of a successive

petition     for    collateral      review       when   deciding        whether   to

authorize its filing.            See In re Lewis, 484 F.3d 793, 795-96

(5th Cir. 2007) (per curiam);              In re Hill, 437 F.3d 1080, 1083

(11th Cir. 2006) (per curiam); Johnson v. Robert, 431 F.3d 992,

993 (7th Cir. 2005) (per curiam) (concluding that “there [was]

no   point   in     authorizing     [the       petitioner]     to    file   another

                                         11
collateral attack” “[b]ecause he waited too long”).                             But see In

re McDonald, 514 F.3d at 543; Ochoa v. Sirmons, 485 F.3d 538,

543-44 (10th Cir. 2007) (per curiam).

      Our conclusion does not mean that we always should reach

the    question     of     the     successive            motion’s      timeliness     at      the

gatekeeping       stage.         In   many     cases,         the   record   might    not       be

adequately developed to enable us to resolve disputed factual

issues or to determine whether equitable tolling should apply.

We    also    recognize       that        it   would      be     inappropriate       to      deny

authorization       based     on      a   finding        that    the    successive       §    2255

motion    would     be   time-barred           without        “accord[ing]    the     parties

fair notice and an opportunity to present their positions” on

whether the limitation period has elapsed.                              Day v. McDonough,

547 U.S. 198, 210 (2006); see also McMillan v. Jarvis, 332 F.3d

244, 250 (4th Cir. 2003).

      But, in this case, the government raised the statute of

limitations        issue      in      opposition          to     Vassell’s    motion          for

authorization to file a successive § 2255 motion, and Vassell

received ample opportunity to explain why the successive § 2255

motion he seeks leave to pursue would not be time-barred.                                       In

doing so, he did not contend that the doctrine of equitable

tolling      applies     to   his     case     or    that       the    application    of      the

statute      of   limitations         depends       on    a    disputed    issue    of       fact.

Instead, the question of whether Vassell’s § 2255 motion would

                                               12
be   time-barred    turns    entirely    on   the   narrow   legal   issue   of

whether his right first became available with the decision in

Graham, which we are able to resolve as a matter of law, and

have so done.

      In    sum,   because    the   right     on    which    Vassell’s   claim

relies -- that a mandatory life-without-parole sentence imposed

on a juvenile who did not commit homicide violates the Eighth

Amendment -- was initially recognized by the Supreme Court in

Graham, not Miller, we deny his application for authorization to

file a successive § 2255 motion because the motion would be

untimely.



                                                                MOTION DENIED




                                        13
