PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

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No. 18-3747

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IN RE: FELIX ROSADO,

Petitioner

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On Application 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

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Argued: March 23, 2021

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, 

Circuit Judges

(Filed: August 2, 2021)

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2

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 [ARGUED] 

Matthew A. Thren

BERKS COUNTY DISTRICT ATTORNEY’S OFFICE

633 Court Street, 5th Floor Services Center

Reading, PA 19601

Counsel for Respondent

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OPINION OF THE COURT

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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 challenge, well past AEDPA’s one-year deadline
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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-degree 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 filed 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 28 
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U.S.C. §2254. Though AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996) normally bars second or successive petitions, there are two narrow exceptions. Rosado 

claims that he falls within one of them because, he says, he 

relies on Miller’s new, retroactive rule. §2244(b)(2)(A).

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. §2244(b)(3)(C). And in the years after Miller, many prisoners who had committed crimes as young adults and are serving mandatory life sentences have sought our leave to file new 

habeas petitions based on Miller. Before we allow that, we 

must decide whether these claims do indeed rely on Miller. 

Plus, many of these inmates brought their requests long after 

Miller. If we let them go forward, district courts will likely dismiss many of them as untimely. But we have never decided 

whether we may consider timeliness as part of our gatekeeping 

review. Both issues are litigated often and likely to recur, so 

we now give guidance on both.

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 after the Supreme Court’s decision. 

§2244(d)(1)(C). The state says that we can deny leave to file 

on this basis; Rosado disagrees.
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The state is right. The statute gives us power to deny leave 

on any basis, including untimeliness. But our holding is narrow: We should deny leave based on timeliness only if the untimeliness is clear. The parties must be on notice and have a 

chance to respond. And there must be no unresolved factual 

issue or potential dispute over tolling. Rarely will all those conditions hold.

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. §2244(b)(3)(A). We are AEDPA’s gatekeepers. And 

before we open the gate, we must check that the prisoner has 

prima facie shown two things under §2244(b). First, the claims 

must differ from any he brought before. §2244(b)(1), (3)(C).

And second, the claims must either rest on newly discovered 

facts or “rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 

was previously unavailable.” §2244(b)(2)(A).

After we make this prima facie finding, the District Court 

must check that each claim meets all the requirements of 

§2244. §2244(b)(4). So it must verify that each satisfies 

§2244(b). It must also apply §2244(d)’s one-year time bar. 

Only then may it reach the merits.
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Our sister circuits are split on the scope of our gatekeeping 

review. Three circuits limit that review to the §2244(b) requirements. In re McDonald, 514 F.3d 539, 543–44 (6th Cir. 

2008); Henry v. Spearman, 899 F.3d 703, 710 (9th Cir. 2018) 

(citing McDonald approvingly in dictum); Ochoa v. Sirmons, 

485 F.3d 538, 542–44 (10th Cir. 2007). Five others sometimes

consider §2244(d)’s timeliness requirement. In re Vassell, 751 

F.3d 267, 271 (4th Cir. 2014); In re Campbell, 750 F.3d 523, 

533–34 (5th Cir. 2014); Johnson v. Robert, 431 F.3d 992, 992–

93 (7th Cir. 2005) (per curiam); In re Hill, 437 F.3d 1080, 1083 

(11th Cir. 2006) (per curiam); In re Williams, 759 F.3d 66, 68–

69 (D.C. Cir. 2014).

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 §2244(b) is “satisfie[d].” 

§2244(b)(3)(C) (emphases added). Thus, meeting the requirements of §2244(b) is “necessary” but not “sufficient.” Vassell, 

751 F.3d at 271 (emphases omitted). “May” leaves us discretion to deny leave for other reasons, like timeliness. If an application is obviously late, we need not ignore this glaring flaw.

To be sure, the statute tells district courts to apply the requirements of “this section,” §2244, including the time bar, 

while it tells courts of appeals to apply “this subsection,”

§2244(b). Compare §2244(b)(4), with §2244(b)(3)(C). Rosado stresses the distinction between these phrases. Yet

AEDPA contains no language barring our review either. So all 

that means is that we do not have to consider timeliness. We 
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need not, but we can. The statute itself does not limit our discretion to deny leave.

3. We will consider timeliness only rarely. Though we can 

consider timeliness, 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.

§2244(b)(3)(D); cf. In re Hoffner, 870 F.3d 301, 307 n.11 (3d 

Cir. 2017) (treating this time limit as advisory).

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 
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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-ahalf 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.” §2244(d)(1)(C) (emphasis added). The relevant 

date is when the Court first recognized the right, not when it 

made it retroactive. Dodd v. United States, 545 U.S. 353, 357 

(2005). And though Dodd involved the limitations period for 

federal prisoners in §2255(f)(3), §2244(d)(1)(C) uses identical 
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language. The starting point is the same for state prisoners. 

Prost v. Anderson, 636 F.3d 578, 591 (10th Cir. 2011) 

(Gorsuch, J.); Johnson, 431 F.3d at 992–93.

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 save him. §2244(d)(2).

Still, Rosado argues that his clock runs from Montgomery

because it removed an “impediment to filing an application 

created by State action.” §2244(d)(1)(B). Before Montgomery, 

the Supreme Court of Pennsylvania had held that Miller was 

not retroactive. Commonwealth v. Cunningham, 81 A.3d 1, 11

(Pa. 2013). So, he says, he could not exhaust his state remedies

as required until after Montgomery corrected Cunningham.

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 have 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).
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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 

authorization 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. §2244(b)(2)(A). Miller is a “new rule of constitutional law.” Id. It was “made retroactive to cases on collateral 

review by the Supreme Court” in Montgomery. Id. It was “unavailable” when Rosado filed his first habeas petition. Id. And 

it “was not presented in a prior application” for federal habeas. 

§2244(b)(2). The last thing he must show is that his “claim relies on” Miller. §2244(b)(2)(A). There, he fails.

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 on 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 
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“light.” Hoffner, 870 F.3d at 307. And we assess reliance case 

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).

The reliance requirement leaves prisoners some leeway. A 

prisoner may rely on a new rule even if he seeks to apply it to 

a new situation. Hoffner, 870 F.3d at 309. His claim need not 

match the Court’s precise holding, as long as it follows from 

the broader rule supporting that holding. Moore, 871 F.3d at 

82. As we have explained, a claim “relies” on a new rule if that

rule “substantiates the ... claim.” Hoffner, 870 F.3d at 309 

(quoting In re Arnick, 826 F.3d 787, 789–90 (5th Cir. 2016) 

(Elrod, J., dissenting)). That is true “even if the rule does not 

‘conclusively decide[]’ the claim or if the petitioner needs a 

‘non-frivolous extension of’” it. Id.

If an opinion hints at a new rule, a 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 
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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 career-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 sentences. 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 differentiated 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); 
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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 are 

similarly immature, so Miller must apply to them too.

Yet the Supreme Court has already rejected that argument. 

In Roper, the Court expressly conceded Rosado’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 age 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 
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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.