IN RE: FELIX ROSADO, Petitioner
No. 18-3747
United States Court of Appeals for the Third Circuit
August 2, 2021
PRECEDENTIAL. On Aрplication for Leave to File a Second or Successive Habeas Petition Pursuant to 28 U.S.C. § 2244(b). Related to E.D. Pa. No. 2:07-cv-04429. District Judge: Honorable Norma L. Shapiro. Argued: March 23, 2021.
Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges
Bret Grote [ARGUED]
ABOLITIONIST LAW CENTER
P.O. Box 8654
Pittsburgh, PA 15221
Carole L. McHugh
410 Old York Road
Jenkintown, PA 19046
Counsel for Petitioner
Kenneth W. Kelecic
Matthew A. Thren [ARGUED]
BERKS COUNTY DISTRICT ATTORNEY‘S OFFICE
633 Court Street, 5th Floor Services Center
Reading, PA 19601
Counsel
OPINION OF THE COURT
BIBAS, Circuit Judge.
Congress made second or successive habeas petitions hard to maintain. To keep district courts from being flooded with them, AEDPA sets up a gate. And it makes courts of appeals the gatekeepers.
Felix Rosado asks us to lift the gate for him. In 1996, he was sentenced to mandatory life without parole for murder. He now argues his sentence is barred by Miller v. Alabama, 567 U.S. 460 (2012). But he waited more than six years after Miller to bring his challеnge, well past AEDPA‘s one-year deadline for asserting newly recognized rights. Plus, Miller is limited to prisoners who were under eighteen when they committed their crime, yet Rosado was almost eighteen and a half. So his claim does not rely on Miller‘s new rule. We may deny leave based on the first flaw and we must deny it based on the second. Thus, we will not grant Rosado leave to file a second habeas petition.
I. BACKGROUND
In 1995, Rosado shot and killed Hiep Nguyen. Rosado was almost eighteen and a half. Seven months later, he pleaded guilty in Pennsylvania state court to first-degreе murder and was sentenced to mandatory life without parole. Over the next two decades, he collaterally attacked his conviction in state and federal court, claiming ineffective assistance of counsel. But those attacks failed.
After Rosado filеd his first round of habeas petitions, the Supreme Court decided Miller. It held that the Eighth Amendment bars mandatory life-without-parole sentences for criminals who were under eighteen when they committed their crimes. 567 U.S. at 465. Four years later, the Court held that Miller‘s rule applies retroactively, enabling those already sentenced as juveniles to challenge their convictions. Montgomery v. Louisiana, 577 U.S. 190, 206 (2016).
Two months after Montgomery, Rosado brought another state habeas (technically, PCRA) petition. In it, he argued that Miller‘s rule applies to his case. The state courts dismissed his petition as time-barred and then affirmed that dismissal.
So Rosado now returns to federal court. In 2018, he asked for permission to file a second federal habeas petition under
Before letting a prisoner file a second or successive habeas petition in district court, the court of appeals must verify that the petition falls within one of those exceptions to AEDPA‘s bar.
II. WE MAY DENY ROSADO‘S APPLICATION AS UNTIMELY
Rosado faces at least two hurdles. To get leave to file, he must make a prima facie showing that he relies on Miller. But if he gets to the District Court, he will also face a time bar. Applicants like Rosado who rely on new constitutional rules have one year to file aftеr the Supreme Court‘s decision.
The state is right. The statute gives us power to deny leave on any basis, including untimeliness. But our holding is
This is that rare case. If we gave Rosado leave to file, his application would be years late and ineligible for tolling. We may deny leave on that ground.
A. We may consider timeliness at the gatekeeping stage
1. Our gatekeeping role. AEDPA curtails a prisoner‘s ability to file a second or successive habeas petition. Before he can even file in district court, he must get the court of appeals’ permission.
After we make this prima facie finding, the District Court must check that each claim meets all the requirements of
Our sister circuits are split on the scope of our gatekeeping review. Three circuits limit thаt review to the
2. The statutory text gives us discretion. The latter approach squares with AEDPA‘s wording. We “may authorize the filing of a second or successive application,” but “only if” the petitioner shows prima facie that
To be sure, the statute tells district courts to apply the requirements of “this section,”
3. We will consider timeliness only rarely. Though we can consider timelinеss, often we should not. Because we should decide whether to grant leave to file within thirty days, we do not have time to resolve complex timing questions.
We look by analogy to the rules governing first habeas petitions. Both district and appellate courts may, but need not, consider timeliness sua sponte. Day v. McDonough, 547 U.S. 198, 209 (2006); Wood v. Milyard, 566 U.S. 463, 473 (2012). But before doing so, the parties must have “fair notice and an opportunity to present their positions.” Day, 547 U.S. at 210. And usually, appellate courts should not consider issues that were not developed below. Only in “exceptional cases” should they raise timeliness themselves. Wood, 566 U.S. at 473.
So too here. The parties must have notice and an opportunity to respond. See Vassell, 751 F.3d at 271. Plus, statutory or equitable tolling may save a petition. Tolling decisions are often hard and fact bound, best left to district courts in the first instance. See Campbell, 750 F.3d at 533–34; In re Jackson, 826 F.3d 1343, 1348–49 (11th Cir. 2016). We should not deny leave on timeliness unless there is no basis for further factual development and there is no potential basis for tolling.
These conditions will be satisfied only rarely. Jackson, 826 F.3d at 1350. Typically, we decide based only on the prisoner‘s initial filing. Often, the state does not respond. And usually, we lack the state-court record, which we need to gauge tolling. See id. at 1349 (citing Jordan v. Sec‘y, Dep‘t of Corr., 485 F.3d 1351, 1357–58 (11th Cir. 2007)).
But sometimes, the state responds and raises the defense. The prisoner then asserts his position. Sometimes, the facts are clear, uncontested, and offer no grounds for tolling. The decision might be as simple as comparing the date of the motion and the date when the Supreme Court announced the new rule it seeks to apply. Moore v. United States, 871 F.3d 72, 84 (1st Cir. 2017). If so, there is no reason to let a doomed petition proceed. That is the case here.
B. Rosado‘s application is too late
Because Rosado filed his federal habeas petition six-and-a-half years after Miller, his petition presents a timeliness issue on its face. And unlike most applications at the gatekeeping stage, this one is fully briefed. The state objected that Rosado‘s petition would be untimely. He has responded, alleging that complex tolling issues prevent us from considering timeliness. But his argument rests on the mistaken premise that the clock runs from Montgomery, not Miller. That is not right.
1. The clock began ticking after Miller, not Montgomery. Rosado had one year to file from “the date on which the constitutional right asserted was initially recognized by the Supreme Court.”
Miller came down in 2012. So Rosado had to file by 2013. But he filed his federal petition in 2018. And he filed his state habeas (PCRA) petition in 2016, almost four years after Miller. So statutory tolling (while timely state petitions are pending) does not sаve him.
We are skeptical. But even if he were right, Cunningham was decided in late 2013, months after Rosado‘s one-year clock ran out. He could hаve filed in both state and federal court, asking the federal court to stay and abey while his state case was pending. See Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009). No state action prevented that.
2. Equitable tolling is unwarranted. We should not reject an application as untimely if the habeas petition could be rescued by equitable tolling. But no rescue is possible here. Rosado has not “in some extraordinary way been prevented from asserting his rights.” Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999) (internal quotation marks and ellipses omitted).
Because his petition was too late even before Cunningham, that decision did not prevent him from timely filing.
* * * * *
If we let Rosado file his application, it would clearly be time-barred. Because the relevant facts are clear and undisputed, we can deny leave on this ground. And we must deny аuthorization on another basis: Rosado does not rely on Miller.
III. ROSADO DOES NOT “RELY” ON MILLER V. ALABAMA‘S NEW RULE
Rosado satisfies all but one of the statutory gatekeeping requirements.
Rosado acknowledges that Miller adopted a “bright line holding for persons under 18 years of age.” Pet‘r‘s Br. 15. He also concedes that he was slightly older than that when he murdered Nguyen. But because Miller‘s reasoning rests оn the science of brain development, he argues that it also bars mandatory life sentences for immature young adults, like him, “whose crimes reflect the transient immaturity of youth.” Montgomery, 577 U.S. at 208.
Yet Rosado has not shown that he relies on Miller, rather than a broad expansion of it. True, his prima facie burden is “light.” Hoffner, 870 F.3d at 307. And we assess reliance cаse by case, “permissively and flexibly.” Id. at 308. But the reliance requirement, though light, is not toothless. We hold that if a new rule sets out an express limit and a prisoner‘s claim falls beyond that limit, he cannot rely on that rule. Miller set a limit at eighteen years old. Rosado was older than that when he killed Nguyen. So his claim does not rely on Miller.
A. An applicant cannot “rely” on a new rule if his claim falls beyond that rule‘s express limits
To rely on a new rule, a prisoner must show that his case plausibly falls within the rule‘s limits. To “rely” on something is to “depend on ... [it] with full trust or confidence” or to “rest upon [it] with assurance.” Rely, Oxford English Dictionary (2d ed. 1989) (def. 5).
If an opinion hints at a new rule, а litigant may later seek an extension of that suggested rule into a holding. For instance, the Supreme Court held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Johnson v. United States, 576 U.S. 591, 597 (2015). A prisoner then challenged the identical residual clause of the careеr-offender Sentencing Guideline. Hoffner, 870 F.3d at 302. He thus showed prima facie reliance on Johnson‘s rule. Id. at 312.
But to rely on a rule, the prisoner must ground his argument within the rule‘s limits. He may not read it so broadly that he “contradict[s] binding precedents” or seeks a “facially implausible” extension of it. Id. at 311 (quoting Arnick, 826 F.3d at 791 (Elrod, J., dissenting)). For instance, he may not use Miller‘s limit on mandatory sentences to challenge discretionary sеntences. Evans-Garcia v. United States, 744 F.3d 235, 240–41 (1st Cir. 2014).
In short, we ask if the new rule sets out strict limits and if the prisoner‘s case falls beyond those limits. If so, he cannot rely on the new rule, and we must deny leave to file.
B. Miller covers only those who were under eighteen
Miller drew a firm line: “those under the age of 18” cannot be sentenced to mandatory life without parole. 567 U.S. at 465. Throughout, Miller differеntiated between “adults” (those over 18) and “children” (those under). See, e.g., id. at 471; see also id. at 486 (referring to “children of any age—be it 17 or 14 or 10 or 6“). Just a few months ago, the Court recognized this line, repeatedly describing Miller‘s holding as applying to those under eighteen. Jones v. Mississippi, 141 S. Ct. 1307, 1311–23 (2021); see also United States v. Sierra, 933 F.3d 95, 97 (2d Cir. 2019) (reading Miller as setting a bright line at eighteen); United States v. Marshall, 736 F.3d 492, 498–99 (6th Cir. 2013) (same).
Indeed, Miller is part of a series of youth-sentencing cases, all of which drew the line at eighteen. See Roper v. Simmons, 543 U.S. 551, 568 (2005) (barring the death penalty for those under eighteen); Graham v. Florida, 560 U.S. 48, 74–75 (2010) (barring life-without-parole sentences for those under eighteen who did not kill).
Despite this, Rosado argues that Miller sets no age limit and that he falls within the class of youths protected by it. Because Miller mentions the age of eighteen only once and otherwise refers to “children” and “juveniles,” he argues that it covers all youths who “manifest[ed] age-related immaturity” at the time of their crimes. 567 U.S. at 473, 479; Reply Br. 2. Scientific evidence, he suggests, shows that those just over eighteen
Yet the Supreme Court has already rejected that argument. In Roper, the Court expressly conceded Rosаdo‘s point that aging is a spectrum, not a switch flipped at eighteen. 543 U.S. at 574. But “a line must be drawn.” Id. And Miller, relying on Roper and Graham, drew it at eighteen. See 567 U.S. at 465, 470-75. Those cases grounded that line in our society‘s consensus: “The age of 18 is the point where society draws the line for many purposes between childhood and adulthood.” Graham, 560 U.S. at 74–75 (quoting Roper, 543 U.S. at 574).
Thus, Miller set a clear agе limit. Rosado falls on the wrong side of that limit. And we cannot extend it. A nonfrivolous extension of a precedent cannot go beyond the precedent‘s bright line. Someday, the Supreme Court may redraw that line. But we cannot.
* * * * *
As gatekeepers, we need not unlock AEDPA‘s gate for a prisoner‘s application that has no chance of success. On the undisputed facts, we see that Rosado filed too late and has no basis for tolling. And we cannot find that he relies on Miller when he falls beyond the bounds of the class that it protects. Thus, we will deny him leave to file his second habeas petition.