                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 15 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DOMINIC DEAN ADAMS,                              No. 13-72158

              Petitioner,

  v.                                             ORDER*

UNITED STATES OF AMERICA,

              Respondent.


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

                          Argued and Submitted July 7, 2014
                              San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

       Dominic Dean Adams is a federal prisoner who pleaded guilty to two counts

of murder and to two counts of assaulting a federal detention officer. Adams was a

minor when he committed these crimes. He was sentenced to consecutive prison

terms of 396 months for the murder charges and 120 months for the assault

charges—43 years total.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      In 2013, the district court denied Adams’s two substantially identical pro se

motions under 28 U.S.C. § 2255. Adams has now filed an application for leave to

file a second or successive § 2255 motion to vacate, set aside, or correct his

sentence. We have jurisdiction under 28 U.S.C. § 2255(h).

      We may grant authorization to file a second or successive § 2255 motion if

the application makes a prima facie showing that the motion contains “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); id. §

2244(b)(3)(C). A prima facie showing means “a sufficient showing of possible

merit to warrant a fuller exploration by the district court.” Woratzeck v. Stewart,

118 F.3d 648, 650 (9th Cir. 1997) (per curiam) (quoting Bennett v. United States,

119 F.3d 468, 469 (7th Cir. 1997)).

      Adams contends that his sentence is contrary to Miller v. Alabama, 132 S.

Ct. 2455 (2012), which held 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.’” Id. at 2460. Even assuming that Miller

announced a new, retroactive rule, Adams’s application would fail because Miller

is inapplicable to Adams’s case. Hence, we need not decide whether Miller is

retroactive.


                                          2
      Miller is inapplicable because Adams “was not sentenced to life without the

possibility of parole pursuant to a mandatory sentencing scheme.” See Bell v.

Uribe, 748 F.3d 857, 869 (9th Cir. 2013). The transcript of Adams’s sentencing

hearing demonstrates that the district court exercised its sentencing discretion after

considering several mitigating and aggravating factors; it weighed Adams’s

“deplorable childhood” against his prior criminal history and his “total indifference

to life.” See id. at 870 (“Because the sentencing judge did consider both mitigating

and aggravating factors under a sentencing scheme that affords discretion and

leniency, there [was] no violation of Miller.”). Accordingly, Adams fails to make

“a sufficient showing of possible merit to warrant a fuller exploration by the

district court.” See Woratzeck, 118 F.3d at 650 (citation omitted).

      The application to file a second or successive motion under § 2255 is

DENIED.




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