[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 19-14018

Non-Argument Calendar

________________________

D.C. Docket No. 1:19-cv-00847-AT

DAVID TIMOTHY MOORE, 

 Petitioner-Appellant,

 versus

WARDEN, 

 Respondent-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(May 26, 2020)

Before WILLIAM PRYOR, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM: 

Case: 19-14018 Date Filed: 05/26/2020 Page: 1 of 6
2

David Moore, a Georgia prisoner serving a life sentence, filed the instant 

habeas corpus action under 28 U.S.C. § 2254 to challenge the Georgia Board of 

Pardons and Paroles’ denial of his parole application. Before the district court, 

Moore principally relied on Graham v. Florida, 560 U.S. 48 (2010), to argue that 

the Board’s decision violated the Eighth Amendment’s prohibition on cruel and 

unusual punishments. Accepting the magistrate judge’s report and 

recommendation, the district court held that Graham did not apply because 

whereas the Court there limited its decision to life-without-parole sentences, 

Moore received a life-with-the-possibility-of-parole sentence and, indeed, had been 

considered for parole. The district court further held that Moore’s parole 

eligibility—pursuant to which he had been considered and would be considered 

again—satisfied the Graham Court’s observation that states must give juvenile 

defendants sentenced to life for non-homicide crimes “some meaningful 

opportunity to obtain release based on demonstrated maturity and rehabilitation.” 

560 U.S. at 75. The district court thus concluded that the magistrate judge had 

correctly rejected Moore’s Graham-based claim, adopted the magistrate judge’s 

report and recommendation as the court’s order, and denied Moore’s § 2254 

petition. 

The district court then went on, however, to grant a certificate of 

appealability using the following language: “Having so ruled . . . this Court finds 

Case: 19-14018 Date Filed: 05/26/2020 Page: 2 of 6
3

reasonable jurists could debate whether [Moore’s] argument, that he has been 

required to serve thirty-two years while defendants convicted of murder committed 

as adults who have received life sentences have been released on parole after 

shorter periods of incarceration, entitles him to relief under the Constitution.” 

We review the district court’s denial of a habeas petition de novo. Wilson v. 

Warden, Ga. Diagnostic Prison, 898 F.3d 1314, 1320 (11th Cir. 2018). Our scope

of review is clear—although pro se pleadings and briefs such as Moore’s are 

liberally construed, Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), our 

review is restricted to issues specified in the certificate of appealability, Kuenzel v. 

Allen, 488 F.3d 1341, 1343 (11th Cir. 2007); see also Hodges v. Att’y Gen., Fla., 

506 F.3d 1337, 1340–42 (11th Cir. 2007). 

We find the district court’s COA difficult to discern. It seems designed to 

tee up for appellate review an issue that is somewhat different from the Grahambased argument that served as the primary focus of Moore’s petition. As we read 

it, the COA’s language—pertaining to Moore’s contention “that he has been 

required to serve thirty-two years while defendants convicted of murder committed 

as adults who have received life sentences have been released on parole after 

shorter periods of incarceration”—authorizes Moore to mount a challenge the 

proportionality of his sentence of the sort typically associated with decisions like 

Solem v. Helm, 463 U.S. 277 (1983). 

Case: 19-14018 Date Filed: 05/26/2020 Page: 3 of 6
4

Moore faces two (related) problems on appeal. The first is that his briefs do

not present the sort of freestanding proportionality-based challenge that the district 

court’s COA seems to authorize. Instead, Moore’s appeal focuses on a broadbased challenge to the “manner, procedure and/or system The Board has used and 

continues to use,” arguing, as he did below, that the Board’s policies and 

procedures do not afford juveniles serving life sentences for non-homicide crimes a 

“meaningful opportunity to obtain release based on demonstrated maturity and 

rehabilitation,” as Graham requires. Br. of Petitioner at 18–19, 20. In particular, 

Moore argues, as he did below, that the fact that the Board uses the same procedure 

to evaluate those sentenced as juveniles and those sentenced as adults violates 

Graham. 

To be sure, Moore’s brief asserts at several points that he has served an 

“excessive and disproportionate” sentence, but in context it is clear that those 

assertions are in service of his Graham-based challenge to the Board’s policies and 

procedures. His argument, that is, is not that his sentence is disproportionate and 

thus unconstitutional, but rather that the Board’s policies are invalid under Graham

and have caused him to serve a disproportionate sentence. Even liberally 

construing Moore’s pro se brief, we do not think it raises a freestanding 

proportionality argument of the sort the COA appears to authorize. See Access 

Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). 

Case: 19-14018 Date Filed: 05/26/2020 Page: 4 of 6
5

Which leads us to the second problem that Moore faces. In pressing his 

Graham-based argument, he seems to have strayed beyond the issue specified in 

the COA. Because he—and we—may not do so, that is a sufficient reason for 

refusing him relief. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th 

Cir. 1998).

Having said that, out of an abundance of caution—which we exercise both 

because Moore is pro se and because the district court’s COA is opaque—we 

conclude that the unique circumstances of this case warrant sua sponte expansion 

of the COA to include Moore’s Graham-related argument. See Mays v. United 

States, 817 F.3d 728, 733 (11th Cir. 2016); Thomas v. Crosby, 371 F.3d 782, 796 

(11th Cir. 2004) (“[O]ur cases establish the power of our court to add issues to a 

COA sua sponte.”). 

Despite reaching the merits of Moore’s Graham-based argument, however, 

we reject them for the same reasons that the magistrate judge and district court 

rejected them. In Graham, the Supreme Court held that “the Eighth Amendment 

prohibits a State from imposing a life without parole sentence on a juvenile 

nonhomicide offender.” 560 U.S. at 75. The Court expressly limited its holding to 

life-without-parole sentences. Id. at 63, 74–75; see also Loggins v. Thomas, 654 

F.3d 1204, 1223 (11th Cir. 2011). Moore, as we have noted, was sentenced to life 

with the possibility of parole. While the Eighth Amendment prohibits states from 

Case: 19-14018 Date Filed: 05/26/2020 Page: 5 of 6
6

determining at the outset that a juvenile offender will never be fit to reenter 

society, “it does not require the State to release that offender during his natural 

life,” so long as the state gives juvenile defendants “some meaningful opportunity 

to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 

U.S. at 75. 

For the reasons ably explained by the magistrate judge and the district court, 

Moore has received the “meaningful opportunity” contemplated by Graham. The 

parole board indicated that it considered Moore’s rehabilitative efforts in denying 

him parole in 2018, will again consider Moore for parole in February 2021, and 

has routinely exercised its discretion to release prisoners on parole. 

The district court properly denied Moore’s petition for habeas corpus. 

AFFIRMED. 

Case: 19-14018 Date Filed: 05/26/2020 Page: 6 of 6