NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0245n.06

No. 17-2476

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

In re: EDWARD OMAR SPEARMAN,

Movant. ) ) ) ) ) ) ) O R D E R

Before: GUY, DAUGHTREY, and SUTTON, Circuit Judges.

PER CURIAM. Edward Omar Spearman, a pro se federal prisoner, moves this court for an order authorizing the district court to consid er a second or successi ve motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In 1996, a jury convicted Spearman of particip ating in a continuing criminal enterprise (“CCE”); two counts of drug-rela ted murder; two counts of fi rearm use during a felony drug offense; dealing in firearms without a license; cons piracy to provide false statements in connection with the acquisition of firearms; and c onspiracy to distribute cocaine. The district court sentenced Spearman to three terms of life in prison for the CCE and two murder convictions, followed by impris onment for 25 years to life. United States v. Spearman , No. 96- 1887, 1998 WL 840870, at *3 (6th Cir. Nov. 17, 1998). We affirmed. Spearman subsequently filed a 28 U.S.C. § 2255 motion to vacate his sentence. The district court denied the § 2255 mo tion. We granted Spearman a certifi cate of appealability as to
an ineffective-assistance claim but a ffirmed the district court’s judgment. United States v. Spearman , No. 01-1378 (6th Cir. Aug. 8, 2002) (order).No. 17-2476 - 2 - Spearman later filed a motion under Federal Rule of Civil Procedure 60(b), arguing that the district court erred when it denied his § 2255 motion without addressi ng one of his claims. The district court denied Spearma n’s Rule 60(b) motion as untimel y but granted him a certificate of appealability. We affirmed the district court’s order. Spearman v. United States , No. 07-2534 (6th Cir. Nov. 25, 2008) (order). We also de nied Spearman permission to file second or successive § 2255 motions on three prior occasions. In re Spearman , No. 06-1120 (6th Cir. Dec. 11, 2006) (order); In re Spearman , No. 13-2382 (6th Cir. Apr. 17, 2014) (order); In re Spearman , No. 16-1899 (6th Cir. Nov. 3, 2016) (order). In this motion, Spearman asserts that the life sentence imposed for the CCE conviction amounts to cruel and unusual punishment. In s upport, he cites the Supr eme Court decision in Graham v. Florida , which held that the Eighth Amendment prohibits the imposition of a life sentence without the possibility of parole for a juvenile offender who committed a non-homicide offense. 560 U.S. 48, 74–75 (2010). Spearman explai ns that his indictment charged him with engaging in a CCE from Octobe r 1987 through 1991, and that he did not turn 18 until December 1988. Although Spearman admittedly was 20 years old when he committed the two acts of
murder in furtherance of the CCE—for which he al so received life sentences, he asserts that the
rule in Graham extends “to conspiracy offenses which commenced prior to a defendant’s 18th birthday but extended beyond his 18th birthday and of which he remained a member past this
date.” A.R. 1 at 4. Before we will grant a movant permission to file a second or successive petition under 28 U.S.C. § 2255, he must make a prima facie showing that: (1) there is newly discovered evidence that, if proven and viewed in light of th e evidence as a whole, sufficiently establishes
that no reasonable factfinder woul d have found him guilty; or (2) a new rule of constitutional law applies to his case that the S upreme Court has made retroactive to cases on collateral review.
See 28 U.S.C. §§ 2244(b)(2)(A), 2255(h); In re Green , 144 F.3d 384, 388 (6th Cir. 1998). Spearman takes the second route. He argu es that the Supreme Court’s decision in Graham is a new rule of constitutional law th at applies retroactively to his case.No. 17-2476 - 3 - We have no problem concluding that Graham announced a “constitutional” rule. Graham is about what “the Eighth Amendment forbid s.” 560 U.S. at 74. And we agree that Graham ’s rule was a “new” one. It “was certa inly the first recognition that the Eighth Amendment bars the imposition of life imprisonm ent without parole on non-homicide offenders under age eighteen.” In re Sparks , 657 F.3d 258, 260 (5th Cir. 2011). Finally, “with the right combination of holdings,” the Supreme Court has made Graham ’s rule “retroactive” to cases on
collateral review. Tyler v. Cain , 533 U.S. 656, 666 (2001). Courts must give retroactive effect to new substantive rules, Teague v. Lane , 489 U.S. 288, 307 (1989), including those “prohibiting a certain category of punishment for a class of defendants because of their status or offense,” Penry v. Lynaugh , 492 U.S. 302, 330 (1989). And Graham prohibited a category of punishment (life without parole) based on some defendants’ status (minors) a nd offense (nonhomicide crimes). 560 U.S. at 74; see Montgomery v. Louisiana , 136 S. Ct. 718, 734 (2016). But that’s not the end of the matter. Se ction 2255 requires us to certify a successive motion “as provided in section 2244.” 28 U.S.C. § 2255(h). Se ction 2244, in turn, requires Spearman to show that his “claim relies on [the] new rule” in Graham

. Id. § 2244(b)(2)(A) (emphasis added). But the “rule upon which [Sp earman] relies to advance his successive habeas petition is not the new rule of constituti onal law handed down by the Supreme Court.” In re
Garner , 612 F.3d 533, 535 (6th Cir. 2010). Spearman argues that Graham ’s rule should cover crimes (like conspiracies) that begin before, but continue into, adulthood. See In re Dale , No. 17-1547 (6th Cir. Oct. 17, 2017). The Supreme Court implicitly rejected that theory. It refused to consider individuals who “were convicted for participation in unlawful conspiraci es that began when th ey were juveniles but continued after they r eached the age of 18.” Graham , 560 U.S. at 64 n.* (majority opinion); id. at 110 n.10 (Thomas, J., dissenting). Even if we could cram Spearman’s claim into a Graham

shaped wineskin, he cannot rely on Graham to obtain any relief. The Court amended its opinion “in light of new . . . information” from the Jus tice Department showing that no federal defendant was “serving a life without parole sentence solely for a juvenile nonhomicide crime completedNo. 17-2476 - 4 - before the age of 18.” Id. at 64 n.*; see id. (noting the “Government wa s not aware of any other federal prisoners serving life without parole sentences solely for juvenile nonhomicide crimes”) (emphases added). In addition to the one he challenges here, Spearman is concurrently serving
two other life sentences for homicide crimes he committed as an adult. Graham thus is inapplicable to this case.
We DENY Spearman’s motion for authorization.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk