United States District Court, E.D. Virginia, Norfolk Division
ROBERT E. PAYNE, Senior District Judge.
Ronald Evans, a federal inmate proceeding by counsel, submitted this successive motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence ("§ 2255 Motion"). Evans argues that his life sentence without possibility of parole violates the Eighth Amendment under Graham v. Florida , 560 U.S. 48 (2010), and that Graham announced a new, previously unavailable rule of constitutional law made retroactive to cases on collateral review by the Supreme Court of the United States, thus entitling Evans to relief. The Government has responded. Evans has replied. The matter is ripe for disposition. For the reasons stated below, the Court will grant in part and deny in part Evans's successive § 2255 Motion.
I. PROCEDURAL HISTORY
On December 12, 1992, a jury convicted Evans of conspiracy to distribute and possession with intent to distribute in excess of five kilograms of cocaine, in excess of one kilogram of heroin, and more than fifty grams of a mixture containing cocaine base, in violation of 21 U.S.C. § 846 (Count One), and possession with intent to distribute heroin, cocaine, and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts Eight, Eleven, Fourteen, Twenty-Three, Thirty-Six, Forty-One). (Judgment in a Criminal Case 1-2.) On July 30, 1993, the Court sentenced Evans to life in prison on Counts One and Thirty-Six, 240 months on Counts Eight, Fourteen, Twenty-Three, Forty-One, and 480 months on Count Eleven. (Judgment in a Criminal Case 3-4.) The United States Court of Appeals for the Fourth Circuit affirmed. United States v. Hazel, Nos. 93-5634, 93-5635, 93-5636, 93-5637, 1994 WL 642198, *8 (4th Cir. Nov. 15, 1994). On April 24, 1995, the United States Supreme Court denied Evans's petition for a writ of certiorari. Evans v. United States, 514 U.S. 1087 (1995).
On February 26, 1998, this Court denied Evans's first motion filed pursuant to 28 U.S.C. § 2255. Thereafter, Evans sought permission from the Fourth Circuit to file a successive § 2255 motion based upon the Supreme Court's decision in Graham v. Florida , 560 U.S. 48 (2010). On October 6, 2011, the Fourth Circuit granted Evans authorization to file this successive § 2255. In re Evans, 449 F.App'x 284, 284 (4th Cir. 2011).
II. SUCCESSIVE § 2255 MOTIONS
A. Standard For Successive § 2255 Motions
The Fourth Circuit granted Evans pre-filing authorization to file a successive motion in this Court pursuant to 28 U.S.C. § 2255(h)(2). Under § 2255(h)(2), Evans must demonstrate that his claim is based upon "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). In his § 2255 Motion, Evans raises entitlement to relief based upon the following claims:
Claim One: Evans's life sentence without possibility of parole violates the Eighth Amendment under Graham v. Florida , 650 U.S. 48 (2010).
Claim Two: Graham announced a new, previously unavailable rule of constitutional law made retroactive to cases on collateral review by the United States Supreme Court, thus entitling Evans to review of his sentence pursuant to § 2255(h).
(§ 2255 Mot. 10-11.) Despite Evans's delineation of two claims, the Court construes Evans to raise one claim: whether Evans is entitled to relief under § 2255(h)(2).
The Fourth Circuit's determination that Evans satisfies § 2255(h) "is tentative in the following sense: the district court must dismiss the motion that [the Fourth Circuit has] allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.'" McLeod v. Peguese, 337 F.App'x 316, 324 (4th Cir. 2009) (quoting Bennett v. United States , 119 F.3d 468, 470 (7th Cir. 1997)). Thus, it is necessary to examine Evans's claim and dismiss it, if the Court finds that it is barred under § 2255(h). See United States v. MacDonald , 641 F.3d 596, 604 (4th Cir. 2011) (citing United States v. Winestock , 340 F.3d 200, 205 (4th Cir. 2003)).
To satisfy 28 U.S.0 § 2255(h)(2), Evans must demonstrate: (1) the rule announced in Graham constitutes a new rule of constitutional law that was previously unavailable; and (2) the Supreme Court has made the rule announced in Graham retroactive to cases on collateral review. As explained below, Evans satisfies both requirements.
B. Graham v. Florida
In Graham, the issue was "whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime." 560 U.S. 52-53. The state of Florida charged Graham, a sixteen-year-old, as an adult, and Graham pled guilty to, inter alia, a count of "armed burglary with assault or battery, " a felony carrying a maximum sentence of life without parole under Florida law. Id. at 53 (citation omitted). The Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Id. at 54. On December 2, 2004, thirty-four days shy of his eighteenth birthday, Graham again was arrested and charged with a probation violation after his alleged involvement in two additional robberies committed that evening. Id. at 54-55. The trial court adjudged Graham to be in violation of his probation, imposed judgment on the earlier armed burglary and attempted armed robbery charges, and sentenced him to life imprisonment without parole. Id. at 57.
On direct appeal, the Supreme Court found that Graham's life sentence without parole violated the Eighth Amendment's prohibition against cruel and unusual punishment. Id. at 74-75. The Court held that:
for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole. This clear line is necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment. Because "[t]he age of 18 is the point where society draws the line for many purposes between childhood and adulthood, " those who were below that age when the offense was committed may not be sentenced to life without parole for a nonhomicide crime.
Id. at 74-75 (alteration in original) (quoting Roper v. Simmons , 543 U.S. 551, 574 (2005)). The Supreme Court further explained that "[c]ategorical rules tend to be imperfect, but one is necessary here." Id. at 75.
C. Graham Constitutes A New Rule That Was Previously Unavailable
The Supreme Court has explained that "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final.'" Chaidez v. United States , 133 S.Ct. 1103, 1107 (2013) (quoting Teague v. Lane , 489 U.S. 288, 301 (1989)). "[A] holding is not so dictated... unless it would have been apparent to all reasonable jurists.'" Id . (quoting Lambrix v. Singletary , 520 U.S. 518, 527-528 (1997)). The Court agrees with the Sixth and Eleven Circuits that "Graham set out a new rule of constitutional law that was not previously available. The case was the first recognition that the Eighth Amendment bars the imposition of life imprisonment without parole on non-homicide offenders under age eighteen.'" In re Moss , 703 F.3d 1301, 1302-03 (11th Cir. 2013) (quoting In re Sparks , 657 F.3d 258, 260 (5th Cir. 2011)); see Moore v. Biter , 725 F.3d 1184, 1190 (9th Cir. 2013) (assuming that Graham announced a new rule).
D. The Supreme Court Has Made The Rule Announced In Graham Retroactive To Cases On Collateral Review
1. Retroactivity Of New Rules Under Teague
Under Teague v. Lane , 489 U.S. 288 (1989), "new rules of constitutional law are generally not... applicable to those cases which have become final before the new rules are announced.'" United States v. Mathur , 685 F.3d 396, 399 (4th Cir. 2012) (omission in original) (quoting Teague , 489 U.S. at 310). Teague recognizes two narrow exceptions to the general rule of nonretroactivity. Id . Under the exception pertinent here, "a rule is deemed retroactive if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" In re Sparks , 657 F.3d at 261 (quoting Teague, 489 U.S. at at 307); Moore , 725 F.3d 1190. This exception extends "not only [to] rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.'" In re Sparks , 657 F.3d at 261 (quoting Penry v. Lynaugh , 492 U.S. 302, 330 (1989), overruled on other grounds by Atkins v. Virginia , 536 U.S. 304 (2002)); see Moore , 725 F.3d at 1190.
2. Retroactivity Of A New Rule In the Context Of 28 U.S.C. § 2255(h) (2)
For purposes of pursuing a successive § 2255 motion under § 2255(h), Congress made "[t]he Supreme Court... the only entity that can ma[k]e' a new rule retroactive." In re Elwood , 408 F.3d 211, 212-13 (5th Cir. 2005) (quoting Tyler v. Cain , 533 U.S. 656, 663 (2001)). Accordingly, for purposes of § 2255(h)(2) a "new rule becomes retroactive, not by the decisions of the lower court or by the combined action of the Supreme Court and the lower courts, but simply by the action of the Supreme Court.'" Id. at 213 (quoting Tyler , 533 U.S. at 663). The Supreme Court makes "a case retroactive on collateral review through a single express holding or by "[m]ultiple cases.. if the holdings in those cases necessarily dictate retroactivity of the new rule.'" In re Moss , 703 F.3d at 1303 (quoting Tyler , 533 U.S. at 666).
In her concurring opinion in Tyler, Justice O'Connor explained how multiple holdings together "necessarily dictate" retroactivity, especially for those cases fitting within the first Teague exception:
This Court... may "ma[k]e" a new rule retroactive through multiple holdings that logically dictate the retroactivity of the new rule. To apply the syllogistic relationship described by [the dissent and approved by the majority opinion], if we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have "made" the given rule retroactive to cases on collateral review.
The relationship between the conclusion that a new rule is retroactive and the holdings that "ma[k]e" this rule retroactive, however, must be strictly logical- i.e., the holdings must dictate the conclusion and not merely provide principles from which one may conclude that the rule applies retroactively....
It is relatively easy to demonstrate the required logical relationship with respect to the first exception articulated in Teague v. Lane . Under this exception, "a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" When the Court holds as a new rule in a subsequent case that a particular species of primary, private individual conduct is beyond the power of the criminal lawmaking authority to proscribe, it necessarily follows that this Court has "made" that new rule retroactive to ...