                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 FERNANDO PONCE GARCIA,                          No. 17-71759
                      Petitioner,

                     v.                            OPINION

 UNITED STATES OF AMERICA,
                      Respondent.



          Application to File Second or Successive
             Petition Under 28 U.S.C. § 2255

            Argued and Submitted April 19, 2019
                 San Francisco, California

                      Filed May 16, 2019

  Before: MICHAEL DALY HAWKINS and MILAN D.
   SMITH, JR., Circuit Judges, and BARBARA M. G.
               LYNN, * District Judge.

            Opinion by Judge Milan D. Smith, Jr.




    *
      The Honorable Barbara M. G. Lynn, Chief United States District
Judge for the Northern District of Texas, sitting by designation.
2                  GARCIA V. UNITED STATES

                          SUMMARY **


                         28 U.S.C. § 2255

    The panel denied Fernando Ponce Garcia’s application
for authorization to file a second or successive 28 U.S.C.
§ 2255 petition collaterally attacking his 2008 sentence for
conspiracy to distribute and possess with intent to distribute
methamphetamine (21 U.S.C. §§ 846, 841(1)(a)(1), and
841(b)(1)(A)) and possession of a firearm during a drug
trafficking offense (18 U.S.C. § 924(c)(1)(A)).

    Garcia’s application relied on the rule announced in
Dean v. United States, 137 S. Ct. 1170 (2017), which held
that when a defendant is facing two consecutive sentences—
one for a predicate offense, which does not carry a
mandatory minimum sentence, and one for an offense
committed under § 924(c), which does carry a mandatory
minimum—the sentencing judge has the discretion to
consider the defendant’s mandatory sentence when deciding
the proper time to be served for the predicate offense.

    The panel held that Garcia did not satisfy the
requirements set forth in 28 U.S.C. § 2255(h)(2) for
authorization to file a second or successive § 2255 petition
because Dean’s rule was statutory, not constitutional, and
even if it were constitutional, the Supreme Court has not
made the rule retroactive to cases on collateral review.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                 GARCIA V. UNITED STATES                     3

                         COUNSEL

Elizabeth Richardson-Rover (argued), San Francisco,
California, for Petitioner.

Laurel J. Montoya (argued), Assistant United States
Attorney; Camil A. Skipper, Appellate Chief; McGregor
Scott, United States Attorney; United States Attorney’s
Office, Fresno, California; for Respondent.


                         OPINION

M. SMITH, Circuit Judge:

    In this case of first impression for our circuit, we decide
whether the Supreme Court’s decision in Dean v. United
States, 137 S. Ct. 1170 (2017), announced a new rule of
constitutional law that the Court has made retroactively
applicable to cases on collateral review. We find that it did
not, so we deny Fernando Garcia’s application for
authorization to file a second or successive petition under
28 U.S.C. § 2255.

  FACTUAL AND PROCEDURAL BACKGROUND

    Garcia pleaded guilty to conspiracy to distribute and
possess with the intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A),
and possession of a firearm during a drug trafficking offense,
4                  GARCIA V. UNITED STATES

in violation of 18 U.S.C. § 924(c)(1)(A). In 2008, the district
court sentenced Garcia to 228 months in prison. 1

    Garcia did not directly appeal his conviction or sentence,
but filed what the district court construed as a 28 U.S.C.
§ 2255 petition, alleging that his plea was involuntary. The
court denied that petition. Garcia later filed another federal
habeas petition, which the court denied as a successive
petition filed without authorization from the court of
appeals.

   This application for authorization to file a second or
successive § 2255 petition followed. We appointed counsel
for Garcia and requested a supplemental application
addressing whether the Supreme Court’s decision in Dean
meets § 2255(h)(2)’s requirements for authorization of a
second or successive petition.

                           ANALYSIS

    Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), “[p]ermitting a state prisoner to file a second or
successive federal habeas corpus petition is not the general
rule, it is the exception, and an exception that may be
invoked only when the demanding standard set by Congress
is met.” Bible v. Schriro, 651 F.3d 1060, 1063 (9th Cir.
2011) (per curiam); see also United States v. Lopez, 577 F.3d
1053, 1059 (9th Cir. 2009). Before a second or successive
application may be filed in the district court, the court of
appeals must certify that it relies on “[1] a new rule, [2] of
constitutional law, [3] made retroactive to cases on collateral

    1
     Pursuant to a stipulation of the parties and Amendment 782 to the
United States Sentencing Guidelines, the district court later reduced
Garcia’s sentence to 195 months in prison.
                GARCIA V. UNITED STATES                    5

review by the Supreme Court, [4] that was previously
unavailable.” 28 U.S.C. § 2255(h)(2). The movant must
make a prima facie showing that the application satisfies
each requirement. 28 U.S.C. § 2244(b)(3)(C).

    Garcia’s application relies on the rule announced in
Dean. There, the Court held that when a defendant is facing
two consecutive sentences—one for a predicate offense,
which does not carry a mandatory minimum sentence, and
one for an offense committed under 18 U.S.C. § 924(c),
which does carry a mandatory minimum—the sentencing
judge has the discretion to consider the defendant’s
mandatory sentence when deciding the proper time to be
served for the predicate offense. Dean, 137 S. Ct. at 1177–
78. The Court determined that “[n]othing in § 924(c)
restricts the authority conferred on sentencing courts by
[18 U.S.C.] § 3553(a) and the related provisions to consider
a sentence imposed under § 924(c) when calculating a just
sentence for the predicate count.” Id. at 1176–77. “[S]o long
as [the sentencing judge] imposes the mandatory minimum
‘in addition to’ the sentence for the violent or drug
trafficking crime,” any consecutive sentence for the
predicate offense is permissible under § 924(c). Id. at 1177.

    The government does not dispute that Dean announced
a new rule previously unavailable to Garcia, but contends
that Dean’s rule is not constitutional and has not been made
retroactive to cases on collateral review by the Supreme
Court. We agree.

I. Constitutional Rule

    Garcia contends that Dean established a constitutional
rule because the Court’s reasoning “is rooted in due
process—specifically, the due process right to have a
sentencing body exercise all of the sentencing discretion it
6                GARCIA V. UNITED STATES

has been granted by the legislature.” He argues that “[b]y
creating a new rule requiring district courts to exercise their
discretion to impose a ‘just’ sentence by considering the
impact of § 924(c) mandatory minimums, the Supreme
Court established a new due process right.”

    Not so.        Dean’s rule derives from statutory
interpretation, not the Constitution. Indeed, the Court’s
decision in Dean lacks any discussion of due process. Cf.
United States v. Reyes, 358 F.3d 1095, 1097 (9th Cir. 2004)
(new rule not constitutional where the Court “specifically
avoided reaching any constitutional questions”). The Court
merely interpreted § 924(c) and found that nothing in the
statute “prevents a sentencing court from considering a
mandatory minimum under § 924(c) when calculating an
appropriate sentence for the predicate offense.” Dean,
137 S. Ct. at 1178. Even if the Court believed that a contrary
reading of the statute would raise due process concerns, that
would not suffice, for “it is the ‘new rule’ itself that must be
one ‘of constitutional law,’ not the effect of failing to apply
that rule to successive petitions.” Ezell v. United States,
778 F.3d 762, 766 (9th Cir. 2015) (quoting In re Dorsainvil,
119 F.3d 245, 248 (3d Cir. 1997)).

    The Court’s decision in Dean did not interpret—or even
mention—the Constitution. Rather, Dean’s rule is rooted in
the Court’s interpretation of § 924(c). Because Garcia fails
to make a prima facie showing that Dean announced a
constitutional rule, he does not satisfy that requirement of
§ 2255(h)(2).

II. Retroactive to Cases on Collateral Review

    Even if Dean’s rule were constitutional, Garcia’s
application fails because the Supreme Court has not made
the rule retroactive to cases on collateral review.
                 GARCIA V. UNITED STATES                    7

    Generally, “new constitutional rules of criminal
procedure will not be applicable to those cases which have
become final before the new rules are announced.” Teague
v. Lane, 489 U.S. 288, 310 (1989) (plurality opinion). An
exception exists, however, if “the Supreme Court holds [the
new rule] to be retroactive.” Tyler v. Cain, 533 U.S. 656,
663 (2001).

    The Court has held that new substantive rules of
constitutional law—rules that “alter[] the range of conduct
or the class of persons that the law punishes”—apply
retroactively to cases on collateral review. Welch v. United
States, 136 S. Ct. 1257, 1264–65 (2016) (quoting Schriro v.
Summerlin, 542 U.S. 348, 353 (2004)). New constitutional
rules of criminal procedure, by contrast, generally do not
apply retroactively to cases on collateral review. Teague,
489 U.S. at 310. An exception exists, however, for
“watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal
proceeding.” Tyler, 533 U.S. at 665 (citation omitted). “To
fall within this exception, a new rule must meet two
requirements: Infringement of the rule must ‘seriously
diminish the likelihood of obtaining an accurate conviction,’
and the rule must ‘alter our understanding of the bedrock
procedural elements’ essential to the fairness of a
proceeding.” Id. (quoting Sawyer v. Smith, 497 U.S. 227,
242 (1990)).

    Garcia contends that Dean announced a substantive rule
because it “altered the ‘substantive reach’ of § 924(c) by
making clear that the consecutive mandatory minimum
sentence imposed under its terms . . . must be part of the
overall ‘sufficient, but not greater than necessary’ sentence”
under § 3553(a). That argument fails, however, because
Dean’s rule is permissive, not mandatory: When sentencing
8                GARCIA V. UNITED STATES

a defendant for a predicate offense, a court may, but need
not, consider the separate mandatory minimum sentence
required by § 924(c). Dean, 137 S. Ct. at 1177. That rule
does not “‘forbid[] criminal punishment of certain primary
conduct’” or “prohibit[] a certain category of punishment for
a class of defendants because of their status or offense.’”
Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016)
(quoting Penry v. Lynaugh, 492 U.S. 302, 330 (1989)).

    At oral argument, Garcia tried to draw an analogy
between the rule announced in Dean and the rule in Miller v.
Alabama, 567 U.S. 460 (2012)—the latter of which the
Court has held to be retroactive to cases on collateral review.
But Miller is distinct from Dean in several respects. Most
importantly, whereas the Court expressly made Miller’s rule
retroactive in Montgomery, the Court has not expressly made
Dean’s rule retroactive. See 136 S. Ct. at 735. In addition,
Miller’s substantive rule prohibited a sentence of life without
the possibility of parole “for ‘a class of defendants because
of their status’—that is, juvenile offenders whose crimes
reflect the transient immaturity of youth.” Montgomery,
136 S. Ct. at 734 (quoting Penry v. Lynaugh, 492 U.S. 302,
330 (1989)). Dean, in contrast, did not prohibit or restrict
the sentences of defendants convicted of predicate offenses
and § 924(c) offenses; it only stated that the sentencing court
may consider the separate mandatory minimum sentence
required by § 924(c) when sentencing a defendant for the
predicate offense. See 137 S. Ct. at 1177.

    Nor has Garcia demonstrated that the Court has made
Dean retroactive under the exception for watershed rules of
criminal procedure. The Court could do so explicitly or
through a combination of holdings from multiple cases that
“logically dictate[s]” the conclusion that Dean’s rule falls
within the exception. See Tyler, 533 U.S. at 666–67. Dean
                   GARCIA V. UNITED STATES                            9

itself did not explicitly state that its rule applies retroactively,
and Garcia has not identified any combination of Supreme
Court holdings that logically dictates Dean’s retroactivity.

   Garcia has failed to make the requisite prima facie
showing that the Court has made Dean retroactive to cases
on collateral review. Accordingly, he does not satisfy the
requirements of § 2255(h)(2). 2

                         CONCLUSION

    Dean’s rule was statutory, not constitutional, and the
Supreme Court has not made it retroactive to cases on
collateral review. Accordingly, Garcia has not made a prima
facie showing that his application satisfies the requirements
of § 2255(h)(2). We therefore DENY Garcia’s application
to file a second or successive § 2255 petition collaterally
attacking the judgment in his case.




    2
      In so holding, we agree with every other court of appeals that has
considered whether to authorize a second or successive petition based on
Dean. See In re Parker, No. 18-2187, 2019 U.S. App. LEXIS 5772, at
*3 (6th Cir. Feb. 26, 2019); In re Dougherty, No. 18-11456, 2018 U.S.
App. LEXIS 11620, at *3 (11th Cir. May 2, 2018); In re Payne, No.
17-5089 (10th Cir. Oct. 4, 2017); In re Dockery, 869 F.3d 356, 356 (5th
Cir. 2017). The Fourth Circuit, in considering a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, has also held that the
Supreme Court has not made Dean’s rule retroactive to cases on
collateral review. See Habeck v. United States, 741 F. App’x 953, 954
(4th Cir. 2018).
