NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 1 8

- 1151

____________
In re: DERRICK THOMAS , Petitioner

____________ 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

____________ Submitted under Third Circuit LAR 34.1(a)

October 31 , 2019 Before: HARDIMAN , PHIPPS , and NYGAARD, Circuit Judges

.

(Filed: November 5, 2019 )

____________ OPINIO N *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

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

- degre e murder and other crimes. Although Thomas committed th ose 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

- convictio n 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 applie d 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) , wh ich held that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendmen t. 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,3

to file a second or successive habeas petition, his petition is untimely. State inmat es have one year to apply for a writ of habeas corpus

. 28 U.S.C. § 2244(d)(1). As relevant here, th at 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 retroac tive. 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 we r e 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.” Montgome ry , 136 S.
Ct. at 73 2. 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 deny4

Thomas’s application for leave to file a second or successive habeas petition under 28 U.S.C. § 2244(b)

.