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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.
`
`

`
`2
`
`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.

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