NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 18-1151

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In re: DERRICK THOMAS,

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. 2-03-cv-06273

Before the Honorable District Judge James Knoll Gardner

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Submitted under Third Circuit LAR 34.1(a)

October 31, 2019

Before: HARDIMAN, PHIPPS, and NYGAARD, Circuit Judges.

(Filed: November 5, 2019)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
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HARDIMAN, Circuit Judge.

Petitioner Derrick Thomas applies for leave to file a second or successive habeas 

petition under 28 U.S.C. § 2244(b). We will deny his application as untimely.

I

Twenty-six years ago, Thomas was convicted by a jury of first-degree murder and 

other crimes. Although Thomas committed those crimes when he was 19 years old, the 

state court found the offenses sufficiently serious to warrant a sentence of life without the 

possibility of parole. Thomas unsuccessfully sought post-conviction relief six times in 

state court and once in federal court, Thomas v. Tennis, 2009 WL 904682 (E.D. Pa. 

2009).

On December 23, 2017, Thomas applied for leave to file a second or successive 

habeas petition under 28 U.S.C. § 2244(b). Although he was not a minor when he 

committed the crimes at issue, Thomas nevertheless relied on the Supreme Court’s 

decision in Miller v. Alabama, 567 U.S. 460 (2012), which held that mandatory life 

without parole for those under the age of 18 at the time of their crimes violates the Eighth 

Amendment. Id. at 465.

II

Assuming, without deciding, that the constitutional right initially recognized in 

Miller provides a sufficient basis for Thomas, who was over 18 at the time of his crime, 
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to file a second or successive habeas petition, his petition is untimely. State inmates have 

one year to apply for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As relevant here, 

that limitation period runs from “the date on which the constitutional right asserted was 

initially recognized by the Supreme Court.” 28 U.S.C. § 2244(d)(1)(C). In Dodd v. 

United States, 545 U.S. 353 (2005), the Supreme Court held that the limitation period 

runs “from the date on which the right [a petitioner] asserts was initially recognized by 

this Court”—not the date on which the Court makes the right retroactive. Id. at 357.

The Supreme Court decided Miller on June 25, 2012, so Thomas’s December 23, 

2017 application was filed well beyond “the date on which the right [Thomas] asserts was 

initially recognized by [the] Court.” Dodd, 545 U.S. at 357. Thomas now claims his 

application is timely because he filed it within a year of Montgomery v. Louisiana, 136 S. 

Ct. 718, 732 (2016), which he says “clarifi[ed]” Miller. But the Supreme Court in 

Montgomery simply made Miller retroactive. So even if we were to accept Thomas’s 

proposition that the Supreme Court established “the right for a 19-year-old to escape a 

mandatory life sentence,” that right would derive from Miller, which announced a 

“substantive rule that is retroactive in cases on collateral review.” Montgomery, 136 S. 

Ct. at 732. And because 28 U.S.C. § 2244(d)(1)(C) starts the limitation period from “the 

date on which the constitutional right asserted was initially recognized by the Supreme 

Court,” (emphasis added), Thomas’s application is untimely. Accordingly, we must deny
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Thomas’s application for leave to file a second or successive habeas petition under 28 

U.S.C. § 2244(b).