In re: Michael Morgan

discretion, liqui- its sound no gations laws, award under hourly wage damages any dated award amount the district court could that infer the Men- thereof not exceed the speci- amount endezes lacked grounds “reasonable for fied in [section 216]. believing that conduct comported [their] satisfy subjective §Id. 260. “To ‘good with the Act.” Dybach, 942 F.2d at 1567. faith’ component, employer has the proving burden of that it had an honest IV. CONCLUSION

intention to what ascertain the Act re- quires and to act in with it.” VACATE judgment accordance We that Dybach, (alterations, 942 F.2d at 1566 cita- did willfully Menendezes not violate the tions, quotation and internal marks omit- wage minimum laws and that Davila was ted). employer If the fails to that prove not entitled to liquidated damages, and we subjective he acted with objective both REMAND for proceedings further consis- faith, good damages “liquidated are man- tent opinion. with this datory.” Id. at 1567. Before making a determination as

to Davila’s to liquidated entitlement dam

ages, the district court was required to finding jury

await the about willful

ness. good “The willfulness or ques faith

tion [must be] answered first by jury

to determine period of limitations and

then, if there is a verdict for employee, MORGAN, re Michael Petitioner. again by the [district court] determine liquidated whether damages.” award No. 13-11175. Perez, Alvarez 515 F.3d at 1162. If the jury finds that the Menendezes acted will United States of Appeals, fully, good-faith then their defense would Eleventh Circuit. necessarily fail, and Davila would be enti June liquidated tled to damages. See id. (“[I]n [a Fair Labor Standards Act] Kaufman, Chet Randolph Patterson jury’s case a finding in deciding the limita Murrell, Defenders, Fed. Tallahassee, Pub. period

tions question the employer FL, for Petitioner. willfully precludes acted from court finding that the employer in good acted Stanley Herbert Lindsey, Pamela C. faith when it liquidated decides the dam Marsh, Tallahassee, Attys., FL, ages question.”). jury But if the finds America, United States of Successive Ha- willfully Menendezes did not violate Respondent. beas federal minimum laws, wage state determination necessarily would not mean in good acted faith. “Because

the burden of proof placed differently [for issues of good faith], willfulness and DUBINA, Before Judge, Chief finding that willfulness was present TJOFLAT, CARNES, BARKETT, may co-exist peacefully with a finding that HULL, MARCUS, WILSON, PRYOR, good faith was present.” Rodriguez, JORDAN, MARTIN and Judges. Circuit 518 F.3d at 1274. The Menendezes admit tedly did not inquire about their obli- Howell, plotted drug to rob a deal- Patrick

BY THE COURT: Tillman. Another er named Alfonso Id. at the having polled court been The Howell, car, coconspirator, Paul rented of the members of one request arranged purchase Patrick Howell to and Judges majority of the Circuit and a cocaine from Tillman. kilogram one not hav- active service regular in who are drug buy carrying Tillman left for the the (Rule 35, Federal it in favor of ing voted Uzi, cocaine, cash. He ended an and some Procedure), Sugges- the Appellate Rules of riding around the rental car driven up Banc is DENIED. Rehearing En tion of Howell, Morgan the by Patrick the PRYOR, Judge, respecting Circuit during At right point rear seat. some rehearing en banc: denial of drive, in the Morgan shot Tillman back slumped lifelessly Tillman the head. After filed to the dissents respond I to write seat, gun to Till- Morgan put in his colleagues about the denial my by three Pat- man’s head and fired a second shot. to bane. I continue rehearing en body by Judges Morgan pushed and expressed rick Howell to the view adhere Randolph Friendly Raymond and car and drove off with the Henry out of the rehearing cocaine, Uzi, the denial of that dissents from the cash. After the and banc, did not where one particularly murder, attempted en coconspirators several decision, “of dubious in the participate car, up Morgan’s to clean the rental but Shaygan, 676 v. policy,” United States child, ex-girlfriend and the mother of his Cir.2012) J., (Pryor, F.3d Bailey, rode in the rental car and Tammie banc) rehearing en the denial of respecting holes in the interi- noticed blood and bullet N.Y., Ha- New States (quoting United or. Co., R.R. 276 F.2d ven & Hartford investigated officials As law enforcement (2d Cir.1960) concurring (Friendly, murder, Mor- Tillman Paul Howell and banc, joined by reh’g en the denial Bailey became concerned that would gan C.J.)), Lumbard, that “denials of re- and Morgan them to the authorities. report followed si- hearing en banc are best $1,000 to a Bailey a friend to lure offered omitted) (alteration In- lence,” (quoting id. so he could kill her. highway stop rest Clarke, 965 F.2d Agents Am. dep. Ins. off, friend, way beg to looking for J.)). (D.C.Cir.1992) (Randolph, baby, Morgan Bailey’s who asked about view, not share that my colleagues But do bring to Morgan fathered. told her had go unan- should not and their dissents But the friend refused baby, too. anyone doubt the correct- swered. Lest Morgan. Paul money began to avoid matter, I in this must of our decision ness Bailey money to drive Howell wired some in the misunderstandings respond to five him, possibly to Ft. Lauderdale to see dissents that follow. give to she should rehearse statement Bailey kill her. But possibly police I. BACKGROUND apartment money on her new spent the “the Morgan princi- was one of Michael and, called to Paul Howell instead when operation, drug of an elaborate pal leaders not come to Ft. Lauder- why she had ask supplied, distrib- dating back to dale, baby was sick him that her she told throughout cocaine uted and sold crack a microwave to warm and she needed Alabama, Florida, Mississippi, Georgia, construct- milk. Paul Howell then baby’s North and South Carolina.” United placed Bailey kill pipe bomb to ed Mothersill, States v. oven, which in a microwave Cir.1996). pipe bomb drug In the course of this Id. at delivery to her. gift-wrapped for coconspirator, he Morgan and his operation, 1217-18. As another man drove pack- homicide, did not commit a id. at 2034. house, age Bailey’s he stopped was by The United States moved to dismiss the Highway Florida Trooper Patrol James motion based Apprendi and Graham as speeding Fulford for and arrested op- untimely, responded to the claim under erating a without a vehicle license. Id. at 3582(c)(2) merits, section on the and ar- 1216. The driver consented to a search of gued that inapplicable Graham was be- and, the vehicle Trooper when Fulford Morgan cause was sentenced to life for a opened gift-wrapped package, the mi- homicide offense. The district court de- exploded crowave and killed him. Id. nied 3582(c)(2), relief under section and Morgan, along with several of his cocon- referred the two constitutional claims to a spirators, was convicted in 1993 of various magistrate judge, before whom re- offenses, racketeering and the Tillman pending. main murder served as one of the underlying Twenty years after his conviction and racketeering acts. The district court sen- following years of attempts unsuccessful Morgan tenced life without under sentence, vacate his Morgan moved this then-mandatory sentencing guidelines. grant Court to extraordinary him the op Morgan’s affirmed We convictions on di- portunity filing a fourth motion to va appeal. 2004, rect Id. at 1220. In Morgan cate, aside, set or correct his sentence. vacate, filed his first aside, motion to set or Based on the Supreme decision sentence, correct his 2255, § 28 U.S.C. and — Alabama, Court in Miller v. U.S. -, alleged a violation right of his to confronta- 2455, 132 S.Ct. (2012), 183 L.Ed.2d 407 tion under the decision of Supreme Morgan argued Court v. that he Washington, was entitled to 541 Crawford 36, 1354, 124 U.S. S.Ct. relief 158 because he L.Ed.2d was 177 sentenced to life (2004). The district court imprisonment dismissed the without the possibility pa motion, and granted we a certificate of role under the then-mandatory sentencing appealability and affirmed. Morgan v. guidelines. But the standard Morgan United 195 Fed.Appx. 924 must meet to obtain leave to file his suc Cir.2006). 2009, In Morgan “Ap- filed an cessive motion is demanding: we can grant peal Motion Pursuant 3742,” [to] Section his application if we only certify that his which the district court dismissed as an motion contains a relying claim on “a new unauthorized second successive motion law, rule of constitutional made retroactive vacate, correct, or set aside his sen- to cases on by collateral review the Su 2011, tence. Morgan filed his third preme Court, that was previously unavail vacate, aside, motion to set or correct his 2255(h)(2). able.” § 28 U.S.C. sentence alleged (1) three new claims: We held that Morgan could not file his a violation of Apprendi Jersey, v. New 530 second or successive motion because Mil 466, 2348, U.S. 120 S.Ct. 147 L.Ed.2d 435 ler has not been made retroactive on col (2) (2000); a wrongful denial of sentencing lateral by review Supreme Court. A relief based on the retroactive reduction of prisoner may permission receive to file a the crack guidelines, cocaine 18 U.S.C. second or vacate, successive motion to set 3582(c)(2); (3) a violation of the aside, or correct a sentence when a deci Eighth Amendment based on the decision sion of the Supreme of the Court creates a Supreme Court in new Graham v. Flori- da, rule of 560 law that “prohibit[s] U.S. constitutional (2010), L.Ed.2d certain category punishment Eighth for a prohibits Amendment the imposition Moss, class of defendants.” In re life sentence for a Cir.2013) offender who (quoting Penry sentencing irrevocably against counsel 109 S.Ct. 492 U.S. Lynaugh, (1989), Id. prison.” abro to a lifetime them 106 L.Ed.2d Virgi by only Atkins grounds regulate manner other gated ‘'[RJules on 304, 122 S.Ct. nia, [sentence] the defendant’s determining (2002)). re precedent This Summerlin, L.Ed.2d procedural.” the instruction flects Because the rule at 2523. retroactive may made rule in Miller is not substantive established if ... “[m]ultiple cases review collateral made been retroactive otherwise has not necessarily dic those cases holdings in Court, concluded that rule id., retroactivity,” tate or suc- bring a second could not Morgan retroactively, apply rules substantive aside, vacate, or cor- set motion to cessive 348, 351- Summerlin, 542 U.S. Schriro rect his sentence. 159 L.Ed.2d 52, 124 S.Ct. a certain (2004). prohibit! ] [that] “[R]ules II. DISCUSSION de a class of for punishment of category a involved panel the decision Although procedures regardless ... fendants Supreme of application straightforward Penry, 492 are substantive. followed” my of precedent, three 330, 109 at Circuit S.Ct. 2953. Court and at U.S. both misunderstand colleagues appear to the rule established heldWe precedents. governing and our the decision a substan- not be considered Miller could a clear has drawn Court The “h[o]ld, aas did not rule. Miller tive proce- between substantive distinction matter, Eighth the substantive for the retroactive purpose rules of dural [imposition prohibits Amendment substan- collateral offenders] on review: application for parole without life retroactively proce- apply [Morgan] regardless generally as tive rules such Instead, Miller Not- id. do not. generally See dures followed.” rules procedural “mandatory dissents, life without held that in the hyperbole withstanding at the time age of 18 under for those estab- of the rule nature procedural Eighth Amend- violates their crimes En banc debatable. Miller is not lished in [sentencing] a “[s]uch because ]” a ment! would be of this consideration punish- meting out those prevents scheme judicial resources. waste of less- juvenile’s considering from ment for capacity greater culpability ened Has Drawn A. require- afoul of [the] runs change, and Between Substan- Distinction Clear de- sentencing for ment of individualized Rules and Procedural tive penal- serious facing most fendants Application Purpose Retroactive (emphasis Miller, 132 S.Ct. at ties.” Review. Collateral (internal marks and cita- added) quotation do law rules” constitutional “New omitted). Supreme Court And the tion criminal cases retroactively to not fore- “d[id] its decision clear that made the rule was final before have become ability t[he] to make close sentencer’s rule falls within announced, new unless the offender should judgment [that Teague See exceptions. narrow one of two imprisonment life be sentenced Lane, in homicide parole] (1989) (plurality L.Ed.2d Instead, the rule at 2469. Id. cases.” permits exception The first opinion). [the sen- “require[d] in Miller established substan- application “[n]ew retroactive account how children into to take tenced Summerlin, at rules.” tive different, differences and how those 124 S.Ct. at 2522. The second exception Court explained, “That proce- a new authorizes the retroactive of “a dural rule is ‘fundamental’ some ab- small set of rules of watershed criminal stract sense is not enough; the rule must procedure implicating the fundamental be one without which the likelihood of an accuracy fairness and of the criminal pro- accurate conviction is seriously diminish- Id., (internal ceeding.” S.Ct. at 2523 (internal ed.” Id. quotation marks omit- omitted). quotation marks But Su- ted). preme Court has instructed us that “[t]his And the distinction between substantive narrow,” id., class of rules is extremely rules reflects the interest and that procedure “[n]ew rules of ... of the state and federal courts in the finali generally id.', do not apply retroactively,” ty of judgments. Teague, 489 U.S. at see also Howard v. United “Application Cir.2004) (“The lesson of constitutional rules not in existence at the decisions, believe, all these is that the time a conviction seriously became final Teague second exception tight is so principle undermines the finality which very few new squeeze rules will ever is essential to the operation of our criminal it.”). through justice system. finality, Without the crim This distinction drawn inal law is deprived of much of its deter Court between substantive and 309, rent effect.” Id. at 109 S.Ct. at 1074. rules makes sense. Substantive “ap- rules one, “No defendants, not criminal not the ply retroactively because necessarily judicial system, society not as a whole is carry a significant risk that a defendant benefited a judgment providing a man stands convicted of act that an law shall tentatively go jail today, but to does not make criminal or punish- faces a every morrow and day thereafter his con ment that impose law cannot upon tinued subject incarceration shall be him.” Summerlin, 352, 542 U.S. at 124 fresh litigation on already issues resolved.” (internal S.Ct. at 2522-23 quotation marks Mackey v. United 667, 401 U.S. omitted). New rules of procedure, on the 91 S.Ct. 28 L.Ed.2d 404 hand, other “do produce a class of (1971) (Harlan, J., concurring judgments in persons convicted of conduct the law does part and dissenting part). And “[t]he criminal, not make [or sentenced a pun- imposed upon costs the State[s] [and the ishment that the impose law cannot upon federal government] by retroactive appli them,] merely but possibility raise the that cation of new rules of constitutional law on someone convicted [or sentenced] use habeas ... corpus generally far outweigh of the procedure invalidated might have the benefits of this application.” See So been acquitted [or sentenced] otherwise.” Stumes, lem v. 638, 654, 465 U.S. 104 S.Ct. See id. Given “speculative this connec- 1338, 1347-48, (1984) (Pow 79 L.Ed.2d 579 tion” to innocence or to receipt of a ell, J., concurring in judgment). For sentence, id., lesser it makes sense not to reasons, these the Supreme Court has lim require the governments federal state ited the application of new constitutional to expend on new resources trials and new rules on collateral review of criminal con sentencing proceedings every time that the victions to those rules that “necessarily proce- announces a new carry a significant dural Only rule. risk that a those defendant watershed rules of procedure criminal stands convicted of an act implicate the fun- the law damental fairness does not accuracy make pro- criminal or faces' a punish ceeding deserve retroactive effect. ment See impose law cannot upon id., 124 S.Ct. at 2523. As the Supreme Summerlin, him.” See 542 U.S. at (internal punishment faces a criminal’ or quotation make 2522-23 at him,” upon Sum- omitted). impose that kind cannot is not the law marks it merlin, from at 2522- may not benefit 542 U.S. at S.Ct. rule, Morgan States, 523 Bousley v. United (quoting collateral review. 1604, 1610, S.Ct. Notioithstanding the Misunderstand- B. (1998) (internal quotation L.Ed.2d Dissents, Rule Estab- ings in omitted)). a rule is substan- marks Is Procedural. in Miller lished categorical if a “substantive only it is tive num- astonishing an reflect The dissents Constitution, by the accorded ] guarantee[ misunderstandings ber of fundamental followed.” procedures regardless prison- a in which the circumstances about at at S.Ct. Penry, 492 U.S. rule of of a new the benefits may obtain er added). No kind of (emphasis other re- collateral law on federal constitutional risk that a significant “carries] rule of these misun- at least five I count view. that the punishment ... faces defendant argu- each the error of derstandings, and him.” Summer- impose upon law cannot apparent. isment lin, at 2522-23 labor First, all three of dissenters added). And Miller does (emphasis that, if a rule misconception under the categorical guaran- a substantive implicate imposed the sentence have might affected may juvenile offender still be because a tee defendant, be sub- that rule must upon imprisonment without to life sentenced argues dissent Judge Barkett’s stantive. after Miller. must be substantive in Miller that the rule of the dissenters speculation And the “[bjefore of- because, any likely effect of Miller the about would of certain crimes convicted fender the case underscores particular of life a automatically receive sentence dis Judge Barkett’s of the rule. nature after parole; of possibility the without in that Miller will result speculates sent offenders majority of such the vast majority” for the “vast reduced sentences substantively different will receive a Dissenting Op. offenders. juvenile Bark- Dissenting ofOp. sentence.” lesser Barkett, J., Judge Wilson at 1196. Judge ett, J., Judge at Wilson 1196. that the speculates Judge Martin’s dissent that, write off argues “to dissent Martin’s a different substantive compel rule “will rule that will a new merely procedural as that will majority of cases ... in the result result—’that a substantive compel different J., Wilson, & Dissenting Op. of follow.” lesser, the different, sentence'—in is, a added). J., And Martin, (emphasis at 1198 follow would be that will majority of cases dissent Judge Martin’s Judge Wilson and too meaning ‘procedural’ to stretch the ma speculation of much of the makes Wilson, & Mar- Op. of Dissenting far.” in the rule established in Miller that jority result that a different tin, J., But at 1198. life sentences of make decision would make rule a new does likely is under un juvenile offenders imprisonment for Although all new that rule substantive. Supreme Court But the See id. common. produce likely rules are constitutional of a that, the effect when explained circum- in at least some results different speculative, case is any particular rule explained stances, Court has Summerlin, procedural. rule is retro- only of these rules some can at We 2523. at S.Ct. “apply retroac- rules actively. Substantive Miller the effect of only speculate about carry a ‘necessarily tively because because, that de after any particular case stands a defendant significant risk be sen- may still cision, juvenile offenders that the law does of an act convicted imprisonment tenced to life without “punishment.” term Judge Barkett’s dis- possibility parole. Judge argues Wilson and sent that the rule established Judge argue Martin is “[t]here noth- the Supreme Court in Miller is substantive ing ‘speculative’ the fact about that [these and retroactive on collateral review be- offenders], juvenile judged by today’s stan- “prohibits] cause it a certain category of dards, likely would receive a lesser sen- punishment for a class of defendants be- Dissenting Wilson, J., Op. tence.” & cause of their status or offense.” Dissent- added). Martin, J., (emphasis at 1199 But ing Op. Barkett, J., at (quoting face, speculative that statement is on its Penry, 2953). 492 U.S. at at and a rule whose effect is merely “likely” But prohibit Miller did not any category of procedural, is not substantive. punishment juveniles. for Punishment defined as fine, “[a] sanction—such as a

Second, argue the dissenters that Miller penalty, confinement, or property, loss of may be substantive because it expands the right, privilege—assessed against per- possible sentencing juvenile outcomes for son who has violated the law.” offenders were Black’s previously subject who 2009). Law Dictionary 1353 ed. mandatory imprisonment life without the Black’s Dictionary Law possibility parole, but that cross-references argument is “punishment” “sentence,” foreclosed which is de- precedent. fined as Judge judgment “[t]he that a Barkett’s dissent court for- asserts that mally pronounces finding rule Miller is after substantive criminal because it guilty; defendant “expanded punishment range imposed of possible substan- on a criminal sentencing wrongdoer tive <a outcomes sentence of 20 of- years in prison>.” Dissenting Barkett, J., fenders.” Id. at 1485. Op. of Miller prohibit did not 1196. Judge punishment of Judge Wilson and life Martin’s imprisonment dissent without confidently that, pa- asserts less “[b]y juvenile offenders, role for altering range, possible only but outcomes for mandatory procedure by sentenced to life which that pun- ishment imposed. under a had been mandatory sentencing scheme, S.Ct. at arguably attempt of Judge Barkett’s heralds dis- substantive sent to rule.” define the Dissenting Op. Wilson, J., “punishment” of word to & Martin, J., include a “mandatory at 1198. But life sentence” Supreme the is con- trary to ordinary Court the .explained legal meaning that a new of that rule is word. procedural, substantive, not See Antonin Bryan Scalia & when it A. does Garner, Reading not “alter the Law: range Interpretation of conduct ... sub- (2012) (“[W]hen jected Legal punishment],” to Texts 73 [a but instead “al- the law of subject, is the range ordinary the of permissible legal meaning ter[s] methods for is to ”). be expected .... determining juvenile A whether a defendant’s con- offender who punishable by duct is serves a life punishment].” sentence [that the Summerlin, possibility parole imposed U.S. at 124 S.Ct. at under a man- 2523. datory [only] sentencing “altered range the scheme receives the permissible same punishment methods for as a determining offender [juvenile whether a who serves a conduct life offender’s] is sentence without the punishable by [life without parole].” imposed See under a dis- id. One cannot reasonably cretionary contend sentencing other- scheme.

wise. Fourth, Judge Judge Wilson and Mar-

Third, Judge Barkett’s dissent displays tin’s dissent confuses the rules of retroac- a fundamental misunderstanding of tivity that apply on federal collateral re- motion is based file a second or successive retroactivity that rules of with view involving “a rule of consti dis on a new review. Their claim collateral to state apply law, to cases on issue is close because made retroactive that the tutional argues sent amongst Court, great" confusion collateral review “[t]here country as to whether Miller unavailable,” of this 28 U.S.C. courts that was previously Op. of retroactively.” Dissenting 2255(h)(2). applies could not § The United States Martin, J., & at 1199-1201 Wilson, & issue, if it legal even had concede this the decisions cited But all of 1200 n. 2. this Court. See position taken that before one, were save point, for this the dissent Gilbert v. United on state collateral by state courts decisions (11th Cir.2011) (citing Roberts v. n. 1306 14 to courts are free State See id. review. 249, 253, Inc., of Va., Galen retroactivity rules whatever apply (1999)). 685, 687, 142 L.Ed.2d 648 collateral in their own state wish States attempt And the United doctrine the federal because proceedings before our jurisdictional issue concede this scope non-retroactivity only limits concern be particular would be of Court relief. collateral federal Danforth that Miller is substantive holding cause a Minnesota, 552 U.S. panels proceedings future would bind (2008). 1041-42, L.Ed.2d 859 prisoners. Compare involving state by Supreme bound courts are federal But 2255(h)(1) § id. U.S.C. availability new on precedents 2244(b)(2)(A). If the Executive wants federal on prisoners rules "to constitutional relief after juvenile offenders give cir only other review. collateral the sentences of he can commute court to have considered cuit im to life who were sentenced offenders satisfy the does not that “Miller agrees parole under mandato prisonment without it retroactivity because does for test sys in the federal sentencing schemes ry im sentences life categorically bar all II, § But we Art. tem. U.S. Const. Cain, juveniles.” Craig prisonment by the United attempt accept cannot 12-30035, at *2 2013 WL No. issue jurisdictional States to concede Cir.2013). of a in the footnote Dictum contrary under to the be resolved must court, of a federal district opinion single Court. binding precedent 10-14568, WL Snyder, see Hill v. No. (E.D.Mich. *2 n. 2 Jan. a Decision En C. Banc Consideration of 2013), proposition hardly supports Be Undoubtedly Correct Would Is among the federal confusion” exists “great Resources. Judicial Waste of the retroactive courts though pre- colleagues, my Two of Miller. the rule established that pared to declare dissenting colleagues devote Finally, my substantive, argue that by is tak- the position to considerable attention banc be- considered en matter should of Department by the United States en exceptional “a question it presents cause Eighth proceeding in a before Justice consideration en banc importance,” but in Miller established rule Circuit issue, important, how would no matter this substantive, no position but is A prece- judicial resources. be waste ques- of the on our bearing consideration binding is as panel of this Circuit dent of or on second successive The bar tion. Court. banc en precedent as a v. see Panetti jurisdictional, is motions 236 F.3d Corp., v. Smith GTE 930, 942, 127 S.Ct. Quarterman, 551 U.S. Cir.2001) (“Under (11th the well-es- n. 8 (2007), we 2842, 2852, 662 168 L.Ed.2d so this rule of panel precedent prior to tablished an determine whether must Circuit, holding panel of the appeal first to en banc. See In re United Circuit, address an issue is the law of (11th this Cir.2010). 624 F.3d 1369-70 thereby all binding subsequent panels un- In republic, our democratic where the panel’s less and until the first holding is right fundamental, to vote is routinely we by sitting overruled the Court en banc or decide appeals about elections voting by Court.”); see also United without granting en banc review. For ex Steele, (11th States F.3d ample, enjoined we preliminarily when Cir.1998) (en banc) (“[A] panel cannot Florida increasing from subsidy its of the prior overrule a though one’s even holding campaign gubernatorial of a candidate who it wrong.”). convinced is We have the accepted public had funding because the discretion to consider appeal en an banc subsidy unfairly penalized increased proceeding other when that consideration speech free of an necessary opponent “is who had to secure de or maintain unifor- public funding, clined mity court’s decisions” or we did when “the not vote to proceeding involves a question appeal rehear that excep- en banc. See Scott v. importance.” Roberts, tional R.App. Fed. 612 F.3d 1281-82 Cir. view, my 2010). we should not exercise that dis- upheld we the Georgia When law analysis cretion when the of a and decision requires present voters to photo iden panel undoubtedly correct. The deliber- workers, poll tification to we not re did ation the en banc Court on a hear that appeal en banc. See Common that has been correctly considered and 554 F.3d Billups, Cause/Ga. panel resolved would pre- consume (11th Cir.2009). And when we affirmed judicial cious resources and result in a first the preliminary and perma later the decision that no binding is more or correct injunction nent against counting unverified panel opinion. than the absentee ballots in the 1994 election This Court often decides excep Alabama, issues of Chief Justice of we did re importance tional without granting en banc hear en banc either of those two appeals. example, review. For when 26 states chal Alabama, See Roe v. 68 F.3d lenged the constitutionality of the Afforda (11th Cir.1995); Alabama, Roe v. 49 F.3d ble Care Act and moved this Court to (11th Cir.1995). grant review, en banc we denied their We also grant have declined to en banc request even though the challenged Act review in matters of church and state. involved an unprecedented exercise of fed example, For when we affirmed the deci- eral power compel purchase citizens permitted sion that County Cobb Com- health insurance and to require gov state mission to practice continue its legisla- expand ernments to pro their Medicaid tive prayer begin its meetings, we did grams. See Fla. ex rel. Att’y Gen. v. U.S. appeal rehear that en banc. See Pel- Dep’t Servs., Health & Human Ga., phrey Cnty., v. Cobb F.3d Cir.2011), 1240-41 overruled in (11th Cir.2008). 1266-67 part by Nat’l when of Indep. Fed’n Bus. v. Sebel —ius, injunction affirmed an -, required the (2012). Chief Justice Alabama to L.Ed.2d 450 remove a mon- granted And when we ument writ of of the Ten prevent mandamus to Commandments from district court from the compelling a Alabama State Judicial Building, cabinet-level offi we cial to hearing attend a did not pres appeal when another rehear that en banc. See appointee idential Moore, was to repre 1282, available Glassroth v. 1284 (11th sent agency, Cir.2003). we did not rehear that

1195 (11th Schiavo, Cir.2005); 404 F.3d 1270 true in sensitive matters same is The relations, Schiavo, and terror immigration, foreign Schiavo ex. rel. Schindler v. 403 deported Elian Cir.2005). the Executive (11th ism. When F.3d 1261 And we have Cuba, his mother had to after Gonzalez reviewed dozens of death each sentences Communist re escaping died sea year rehearing en appeals without those the denial of gime, refused to rehear we banc, for the rare save circumstance where order of depor to review that petition necessary it has the uni been maintain rel. v. Gonzalez ex Gonzalez tation. See See, formity precedents. e.g., of our Ev (11th Reno, 1243, F.3d 1245-46 Cir. 215 of Corr., Sec’y, Dep’t ans v. 703 F.3d 1316 2000). also en banc review to We denied (11th (en banc). Cir.2013) of a former Panamanian dicta appeal good The that follow no dissents offer challenged ex unsuccessfully tor who his this matter The reason rehear en banc. Noriega v. Pas to France. See tradition panel plainly right. decision is have We (11th Cir.2009). 1290, trana, 564 F.3d 1292 myriad declined review decisions banc the we did not rehear en deci And greater even equal importance, were or provisions that invalidated several sions granting en banc review of this matter and Georgia. laws in immigration Alabama judicial precious would waste resources. Alabama, 691 States v. F.3d See United (11th Cir.2012); Ga. Latino Al BARKETT, Judge, dissenting Circuit v. Rights liance Human Governor of for rehearing from denial of en banc: (11th Cir.2012); Ga., 691 F.3d 1269 Ala. v. Interest Coal. Gover Hispanic completely agree Judge of 1236, I Wilson Ala., 691 1241 F.3d nor of that this is one that reheard case should be Cir.2012). en Nor did we rehear banc the However, I en banc. do I so because that, among for the first time decision panel opinion believe the makes a critical courts, power interpreted circuit holding mistake in the rule estab punish to define and “Offences Congress — Alabama, U.S. -, v. lished Miller the Law Nations” declared against (2012), is 132 S.Ct. 183 L.Ed.2d 407 Drug the Maritime Law unconstitutional view, my In rule estab procedural. applied Act as to defendants Enforcement prohibits lished in which mandato trafficking in engaged drug who had ry life possibility sentences without the waters of Panama. See United territorial offenders, for is substantive Bellaizac-Hurtado, v. F.3d States and, thus, rather can be than (11th Cir.2012). we denied basis or second successive habeas appeal in rehearing en banc of the which 2255(h). petition under 28 U.S.C. affirmed the conviction Jose Padilla we Supreme Court established related to terrorism for various offenses if “prohibits] a rule is substantive it unreasonably as and vacated his sentence punishment certain for a class category v. Jayyousi, lenient. See United States Cir.2011). of defendants because of their status Fed.Appx. Lynaugh, v. Penry offense.” U.S. death, Even in matters of life and 106 L.Ed.2d rarely grant en banc review. For exam- (1989), abrogated grounds on other At- ple, parents of Terri Schiavo when Virginia, kins petitioned ap- this Court to rehear their (2002). view, my 153 L.Ed.2d 335 enjoin peals of the decisions not to her “pro- It precisely this is Miller did. what death, starvation and we denied their re- im- mandatory of life hibited]” sentences quests, notwithstanding their obvious im- pa- portance. prisonment rel. Schiavo ex Schindler defendants”—-juvenile role for “a of class as mandating us to turn eye a blind offenders—“because of their status.” constitutionally-flawed Id. sentences. Hill, panel opinion Cir.2013) The holds the re Miller rule to (Barkett, (“[I]t because, procedural simply be dissenting) certain simply can circumstances, Congress a court not be that may impose still would have intended AEDPA juvenile preclude life sentence on offender. But a federal court from hearing juvenile the claim a point. that misses the An automatic or mentally man- obtains, retarded datory life offender who possibility sentence without the albeit after the conclusion of prior his federal category punishment is a habeas proceedings, proof irrefutable that his sta found to be sub- tus constitutionally bars his stantively execution for unacceptable offend- ever.”); Collins, see also Herrera v. ers. 390, 402, 113 S.Ct. 122 L.Ed.2d panel opinion heavily relies on the (1993) (“[Fjederal habeas courts act in Supreme Court’s statement in Schriro v. their capacity—to historic assure that the Summerlin, 124 S.Ct. petitioner habeas being is not held in viola (2004), 159 L.Ed.2d 442 that “rules that tion of his or her federal constitutional regulate only the manner determining rights.”). byBut prohibiting Morgan from culpability procedural.” defendant’s attacking his mandatory life sentence on However, Id. at S.Ct. 2519. it is a collateral review—a sentence that the Su say stretch to that Miller changed only the preme Court held Eighth violates the manner of determining a defendant’s sen Amendment’s prohibition of cruel and un expanded tence. Miller range of pos punishment—that usual exactly what the sible substantive sentencing outcomes for panel opinion would have us do. At the offenders categorically prohib very least, this case merits consideration iting category one punishment—manda by the entire Court. tory life sentences—for that category of defendants. change This cannot simply WILSON, Circuit Judge, dissenting procedure. matter of Miller, Before banc, from the denial of rehearing en juvenile offender convicted of certain MARTIN, which joins: Circuit Judge, crimes automatically would receive a sen For crimes he committed between the tence of life possibility without the pa ages of 13 and Morgan Michael was role; Miller, after the vast majority sentenced to mandatory prison life in with such offenders will receive a substantively possibility out the parole. Such a sen different and Miller, lesser sentence. See tence would be unconstitutional were it (“[W]e 132 S.Ct. at 2469 think appropriate handed today. down In Miller v. Ala occasions for sentencing juveniles to this —bama, U.S. -, 2455, 2460, possible harshest penalty will be uncom (2012), 183 L.Ed.2d 407 the Supreme mon.”). Court held that sentences “mandatory It is unreasonable to conclude that all life without parole for those under the age juvenile offenders like Morgan who were of 18 at the time of their crimes violates mandatory sentenced to life sentences Eighth Amendment’s prohibition on ” who, of parole and ‘cruel and unusual punishments.’ This had been sentenced after case Morgan’s application concerns to file would have certainly almost received a a second petition or successive for a writ of sentence, lesser now have no avenue of corpus pursuant habeas to 28 U.S.C. relief. IAs have said previously, can- grant We will an not interpret AEDPA’s hurdles file a second or successive petition if the

1197 Attorneys will advocate in showing that United States facie prima makes applicant retroactivity in cases on contains of Millers motion or successive his second favor country! all rule of constitution- collateral review across involving “a new claim to cases on collat- law, Response Ap- retroactive to Petitioner’s made Government’s al Court, for Authorization to File a Second plication eral review 28 U.S.C. unavailable.” previously was 28 or Motion Under U.S.C. Successive 2255(h)(2). States, 6-7, § at Johnson v. United 2255 (8th 2013) (“Mil- No. 12-3744 Cir. Feb. order, we denied panel original In the juvenile holding s defendants can- le-f holding' that while Morgan’s application, subjected mandatory to a life-with- not be rule of constitu a new Miller announced regarded out-parole properly sentence' is law, not retroactive to the rule was tional rule.”); see Motion of the as substantive it did collateral review because cases on “ a Further Extension of United States for category pun a certain ‘prohibit! ] ” States, Time at Johnson v. United No. In re for a class of defendants.’ ishment 2013) (“Because (8th Jan. 12-3744 Cir. (11th Cir. 713 F.3d Morgan, application, issue has nationwide 2013) Moss, In re (quoting formulating is Department Justice Cir.2013)). although But retroactivity government’s position one cat in Moss describes rule enunciated Attorney’s rather than individual U.S. Of- held to of rules that has been egory fices.”). is, government That not even the s rule is not exhaus retroactively, Moss’ juvenile wants these offenders—who in tive; fact, in pursuant in prison condemned to die inquiry the true for deter structed sentencing now-unconstitutional retroactive given rule is mining whether schemes—deprived ability of their to seek hinges upon collateral review to cases on Govern- corpus. the writ of habeas or that new rule is whether Response Applica- to Petitioner’s gen ment’s “New substantive rules substantive: ...[;] to File a Second or rules tion for Authorization retroactively erally apply [n]ew § 2255 v. Sum Motion Under 28 U.S.C. ... do not.” Schriro Successive procedure 348, 351-52, 12- merlin, No. Johnson v. United (2004) (em 2013) (“Because 2522-23, 159 L.Ed.2d Feb. Cir. The resolution of Mor original). reli- phasis agrees Johnson’s United States s turns on whether gan’ application thus facie prima makes ... a ance on Miller procedural. or s rule is substantive Miller1 granted showing, his motion should today majority of the Court concludes A filing in the case certified for district sufficiently impor question that this is court.”). availability If of the writ I cannot en banc review. tant to warrant similarly situ- Morgan and the hundreds I this agree. rqadily Because believe case mandatory serving offenders ated impor question exceptional “a presents sentences that would be life-without-parole review, Fed. worthy of en banc tance” indubitably unconstitutional were 35(a)(2), I P. dissent. R.App. today not a down handed imagine I importance, cannot exceptional of Jus- Department States United what is.1 policy—its a uniform upon tice has decided ref=u&_r=0 20, 2011, (explaining that there are April there were 336

1. As of Florida, Alabama, serving life without within 62 in offenders such offenders Juveniles, offenders, Sentencing N.Y. our circuit. See Georgia). 17 of Of those 336 20, 2011, Times, http://www.nytimes. Apr. 14-year-olds. Id. 13- them are com/interactive/2011/04/20/us/juveniles.html? that, that argument is the Miller an- remains for majority Nor a a rule a one. nounces substantive frivolous Morgan, offenders like who have been con- proce- “A rule rather than is substantive victed of crimes that would previously have range dural if it the alters conduct or required be incarcerated for the that the persons punishes.” the class law lives, duration of their natural Miller com- Schriro, 353, S.Ct. at 2523. wholly mands a different outcome: where- I agree that the rule announced Miller as before we would lock up them neatly fit our does not within understand- away key,, throw the now such an outcome ing Teague of a substantive rule. See be, will words, the Court’s own Lane, 288, 307, 489 U.S. 109 S.Ct. view, “uncommon.” my See id. we (1989) (“[A] 103 L.Ed.2d 334 new think long should and hard before we dis- rule applied retroactively should be if it simple miss that as a “proce- matter of places primary, certain kinds of private dure.” beyond individual power conduct of the I do not suggest mean to that any rule law-making authority criminal pro- is outcome determinative is also a (internal scribe.” quotation marks omit- a retroactively substantive rule ap- fortiori ted)). But neither does fit Miller1s rule plicable to cases on collateral review. As neatly within our definition of a procedural the Supreme clear, Court has made be- Schriro, rule. See 542 U.S. at cause of procedure “merely rules raise the S.Ct. at (explaining that a rule possibility that someone convicted with use “requir[es] that a jury rather than a judge procedure invalidated might have find the bearing essential facts on punish- otherwise,” been acquitted they have a “[rjules ment” and other that allocate deci- “speculative connection to innocence” that sionmaking authority in this fashion are justify does not retroactive applicability. rules”). prototypical procedural By alter- Schriro, 2523; 542 U.S. at 124 S.Ct. at ing range possible outcomes for a Bousley see United juvenile sentenced to life without 1604, 1610, 118 S.Ct. 140 L.Ed.2d 828 under a mandatory scheme, sentencing (1998) (“The Teague doctrine is founded on arguably a heralds substantive rule. the notion that one of the ‘principal func- 352-53,124 2522-23; See id. at S.Ct. at see tions of corpus habeas [is] assure that Miller, (Roberts, also 132 S.Ct. at 2477 no man has been incarcerated under a C.J., dissenting, joined by Scalia, Thomas, procedure which creates an impermissibly J.J.) Alito, (summarizing majori- large risk that the innocent will be convict- ty’s decision as “invoking] Eighth] [the ” (quoting ed.’ Teague, 489 U.S. at (em- Amendment punishment” to ban a 1076)). S.Ct. at though Teague phasis supplied)). example, For and as original doctrine’s moorings can be found itself, Court wrote in Miller in cases involving guilt innocence, post world, -Miller “appropriate oc- have since extended it to cases involving casions for sentencing juveniles to this power See, state’s punish. e.g., possible harshest penalty life without [of Moss, 703 F.3d at 1303. parole] “Consequently, Miller, will be uncommon.” See unless a new rule of criminal procedure 132 S.Ct. at is 2469. It seems to me that to a such nature that write off as without merely procedural [it] a likeli- new rule hood of an compel will accurate a different conviction [or substantive consti- is, different, result—that lesser, tutional seriously diminished, is sentence] sen- tence—in the majority of there is cases that will no reason to the rule retro- follow would be to actively stretch the meaning of on habeas Bousley, review.” “procedural” (citation too far. See id. The fact U.S. at 118 S.Ct. at 1610 omitted). simultaneously But alters standard quotation marks internal Following exactly my Miller, Mil- point. judged. which that is sentence See ler, cases which offender juve Prior to at 2475. to life be sentenced appropriately can being nile offender sentenced for certain “uncommon.” parole will be automatically crimes would receive life There is noth- Miller, 132 S.Ct. at 2469. parole regard without without to the “of fact that about the these ing “speculative” youth fender’s and attendant characteris standards, individuals, today’s judged by Now, however, tics.” Id. at 2471. those likely receive a lesser sentence. would weighed must be in circumstances the bal Schriro, U.S. at S.Ct. at 2523. ance, “appropriate occasions for sen Indeed, Supreme Court has because juveniles tencing parole] [life to without life-without-parole that sentences told us By will be at 2469. uncommon.” id. rarely imposed juveniles in the be will making once a mandatory what was out Miller, sentencing that of scheme wake outcome, an come uncommon the rule does those that 100% of individuals mandated making not alter the manner only of is, to it parole put life without receive determination, also but the substance— type that “the mildly, the of rule renders indeed, imposing the merits—of the sen an ... of accurate [sentence] likelihood may tence. Though ultimately deter Bousley, 523 U.S. seriously diminished.” that species mine this unusual of constitu because, S.Ct. at 1610. That is at procedural tional rale is more akin to a today, sentenced were these individuals rule, than rale to a substantive we should receiving of them the likelihood same only at least do so after deliberate consid way, minimal. would be that sentence discourse, regardless eration and because arguably announces substantive Miller of the classification to which we taxonomic to cases on collateral re- rule retroactive it, ultimately Miller assign s rale—-and-its or, least, very at substantive view cases oii review— to collateral stripe rule of from a different important is an one. previously have confronted. those we I reiterate that the merits are not even original rejecting order panel In the only question at issue here—the we face is majority application, the relied Morgan’s Morgan’s application presents whether statement in on the Court’s importance worthy question exceptional regulate only that that “rules Schriro review full Court en by sitting banc. determining the defendant’s manner 35(a)(2). majority P. A R.App. See Fed. Schriro, procedural.” culpability the issue today this Court decides that (emphasis S.Ct. at 2523 Morgan’s application— presented proves That original). statement too previously to juveniles whether sentenced much, though, because the rule announced prison possibility life without regulate “only does not the man in Miller of the Great parole can avail themselves determining culpa the defendant’s ner agree challenge sentences we all Writ (emphasis supplied). bility.” Id. Miller constitutionally if would flawed merely arguably does more than alter today—is important were down handed determining an manner of sen individual’s enough further discussion. See to warrant changing in addition the proce tence: that (holding sentencing dure for offenders Eighth “the Amendment forbids a sentenc- statutory parole from a man life without prison that mandates life in ing scheme to an individualized determination date considering the only made after nature offenders”). act, why. comprehend I cannot and the criminal Miller

the offender amongst retroactivity confusion to the Florida great There is Fal country great importance.” as to whether as “one of public courts of this State, (Fla.Dist. con v. One applies retroactively.2 Florida court 111 So.3d curiam).3 of Miller’s recently Ct.App.2013) although (per certified the Landry, ty No. Compare In re 13-247 Cir. to state collateral review” be 30, 2012) May (granting motion to file second many cause cases cited in the footnote petition brought solely or successive habeas above "were decisions state courts on state ground on the Miller announces a new Concurring Op. Pryor, collateral review.” retroactively applicable to rule cases on col Again, simply at 1192-93. isn’t the James, review), No. lateral In re 12-287 case. It is state true that courts can choose 10, 2013) (same), May Snyder, Hill Cir. No. principles govern retroactivity 10-14568, 2013 WL at *2 n. 2 proceedings, their own state collateral see 30, 2013) ("[T]his (E.D.Mich. Jan. court Minnesota, 264, 280-81, v. Danforth would on collateral find Miller retroactive re 1029, 1041-42, S.Ct. 128 169 L.Ed.2d 859 view, rule, because it new substantive is a (2008), many adopted but state courts have (internal generally retroactively.” apply which Teague’s substantive/procedural dichotomy omitted)), Cooks, quotation People marks v. assessing Whether or not a new rule 1-11-2991, 1195435, (Ill. WL No. 2013 at *4 See, given e.g., should retroactive effect. 22, 2013) App.Ct. (holding Mar. that Miller is State, 493, v. 761 N.W.2d 497-99 Danforth Williams, retroactive), People v. 367 Ill.Dec. (Minn.2009) Teague’s (adopting formulation 503, 181, (Ill.App.Ct.2012) 982 N.E.2d 196 on remand from the Court’s deci (holding applies retroactively), Miller that Minnesota, sion explaining in v. Danforth 282, People Morfin, v. Ill.Dec. 367 981 N.E.2d many adopted Teague "pri that states have 1010, (“[W]e (Ill.App.Ct.2012) 1022 find that marily important policy based on the interest rule.”), Miller new constitutes a substantive finality,” in or because "valued uniformi Lockheart, (Iowa 820 State v. N.W.2d 769 ty rules”). between state federal It decision) (va Ct.App.2012) (unpublished table then, surprise, should come as no that several cating life-without-parole imposed sentence preceding of the in the cases cited footnote years ago for a murder that 29 occurred in expressly Teague Simmons, employ analysis mode of Millet), light of v. State 99 So.3d 28 curiam) determining (La.2012) in apply whether Miller should (per (remanding for resen See, Cooks, e.g., Miller), retroactively. tencing light 2013 on collateral review WL Williams, 1195435, (La.Ct.App. (applying Teague State v. So.3d *4 108 255 at to find Miller 2013) retroactive); (explaining "Miller that is retroactive to Carp, 828 N.W.2d at 708-09 cases that were in Louisiana final at the time (finding procedural under the rendered”), the decision in Miller was Com framework). Teague Certainly Judge Pryor (Pa. Cunningham, v. monwealth 51 A.3d 178 that, quarrel proposition would not with the 2012) curiam) (per (granting appeal on the system coequal sovereigns, our dual question applicability retroactive Miller’s state just capable courts are as as federal law), Pennsylvania parte under and Ex Max faithfully applying courts of the rules set well, AP-76964, (Tex. WL No. 2013 458168 down Court to the cases that 6, 2013) curiam) Crim.App. (per (gran Feb. Levitt, come before them. See v. 493 Tafflin t ing appeal question on the of Miller's retroac 455, 465-66, 792, 798-99, 110 107 Cain, 12-30035, tivity), Craig with v. No. 2013 (1990) (explaining L.Ed.2d 887 the Court’s 69128, 4, (5th 2013) WL (per at *2 Cir. Jan. ability "full faith in the of state to courts curiam) (not retroactive), People Carp, complexities handle the of" the Racketeer In 685, (2012) Mich.App. 828 N.W.2d Corrupt Organizations fluenced and Act (holding rule is that-Miller’s (RICO), 1961-1968, §§ complex U.S.C. retroactively applicable not therefore to cases scheme, noting federal "[t]o hold review), State, on collateral 3D12-1736, and Geter v. No. denigrate respect otherwise would ... 375, 375-77, 115 So.3d 2012 WL sovereigns”); coequal accorded Pompey cf. (Fla.Dist.Ct.App. Sept. at *1 (11th County, Broward F.3d 2012) (same). 1996) (“The Cir. state courts are courts of "confuse[j Judge equal dignity Pryor all of the submits that I with federal 'inferior retroactivity apply phrase—and rules of on courts’—to federal use the Framers’ duty collateral review the rules of interpret retroactivi- state courts have the same Cir.2009) (11th (per cu only other that “the Pryor suggests Judge riam). have considered court to Once we make that “limited deter circuit [federal] that Miller does» agrees” mination,” district court is to decide “[t]he Concurring Op. retroactively, 2255(h)] fresh, or in the issue[s] the [§ Craig, 2013 (citing WL Pryor, at 1193 vernacular, Moss, de novo.” legal *2), isn’t true. Two simply (internal marks quotation F.3d at 1303 Fourth Circuit re- separate panels omitted). Therefore, and although Mor motions to file second cently granted retroactivity gan’s position on of Miller brought solely petition successive habeas may ultimately prove to be the correct t retroactivity— of Miller's grounds one, him it needn’ be for to achieve contained to those grounds identical 2254(h) certification. re Lan- here. See In Morgan’s application view, I began—in my I end where there 2012); May Cir. dry, No. 13-247 little doubt that whether a can be May Cir. James, No. 12-287 In re can attack on collateral review his offender 2013).4 Moreover, an because mandatory imprisonment life sentence peti- habeas file a second or successive parole—a sen- jurisdictional question, presents tion constitutionally now be tence that would else, responsibility “it is our above all “a pursuant flawed to Miller—constitutes correctly is decided matter] see that [the question exceptional importance” de- Smith, United States under law.” R.App. review. Fed. P. serving of en banc (11th Cir.2011), n. 1 F.3d 35(a)(2). Indeed, Morgan and hundreds grounds, other vacated on similarly situated offenders sen- Cir.2012). (11th exactly: Again, my point parole to life without who would tenced Morgan’s applica- we considered because a different sentence were likely receive yet to even hear parte, ex we have tion collaterally attack their sen- able government this case. from the § presented under the issue tences addition, showing nec- prima In facie proportions. of immense here is one 2255(h) § under essary for certification court, at a therefore stand As a we showing of “a sufficient merely requires cling to the we can either crossroads: explora- a fuller merit to warrant possible Davis, government wrong is In re belief by the district court.” tion to file second applicants in those cases States Constitution as the United so, do.”). Landry, being petitions. re there is no reason See In we That or successive 30, 2012); ¿pplying (4th why analysis May of a state court In re No. 13-247 Cir. 10, 2013). just persuasive James, as that Teague (4th be as May shouldn’t No. 12-287 Cir. do any federal court whose decisions other holdings permitted federal under Those not bind us. appeals only court of first con- law if the applicant prima that the has made cludes may appeals au- Given that a "court of 4. require- showing facie that he satisfies filing of a second or successive thorize 2255(h). only § The issue before ments ap- application only it determines that if pri- Morgan has made such us is whether showing” prima plication facie makes So, counting showing. if we are facie ma showing ap- retroactivity or of evidence Judge appeals, the courts of as cases in innocence, U.S.C. plicant's suggest ought do- Pryor to be seems to Judge 2244(b)(3)(C) (emphasis supplied), supporting ing, actually there are more cases "[djictum wrong in the Pryor to state that opposing it. Morgan's than single opinion of a federal dis- footnote of a Landry, Cir. Compare re No. 13-247 provides only support trict court” James, 30, 2012), May re No. 12-287 and In Op. Concurring Morgan’s application, 10, 2013), Craig, 2013 May Cir. holdings sep- two Pryor, The permit WL at *2. Circuit orders from the Fourth arate nothing to learn from en banc that we have

review, parties can have the brief or we ensure we reach the

the matter to under the law. The Court

correct decision me, former course. To

today chooses the route is the better one is

that the latter all, why should we not

self-evident—after extra effort to ensure that we

take little right, at least before we

get this one shut juveniles those 336

the courthouse door on

currently serving sen- unconstitutional prisons throughout our circuit?

tences one, important is an and we by hearing from all nothing

have to lose parties before we make a decision on thing

such a issue. one we can weighty Of sure, Morgan—and the hun- Michael serving

dreds of other inmates sentences mandatory life without meted out

pursuant to now-unconstitutional sentenc-

ing going anywhere any- schemes—isn’t

time soon. HEATH,

Ronald Palmer Petitioner-

Appellant,

SECRETARY, FLORIDA DEPART CORRECTIONS,

MENT OF

Respondent-Appellee.

No. 12-14715. Appeals,

United States Court of

Eleventh Circuit.

June

Baya Harrison (Court-Appointed), Law Harrison, Monticello, Baya FL, Offices of for Petitioner-Appellant. Charbula, Attorney

Meredith General’s Office, Tallahassee, FL, Respondent- Appellee.

Case Details

Case Name: In re: Michael Morgan

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jun 10, 2013

Citation: 717 F.3d 1186

Docket Number: 13-11175

Court Abbreviation: 11th Cir.