IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50447

In re: TONY SPARKS,

Movant

Motion for leave to file in

the United States District Court for the Western

District of Texas

a subsequent 28 U.S.C. § 2255 motion

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:

Tony Sparks, federal prisoner # 91929-080, moves this court for

authorization to file a successive 28 U.S.C. § 2255 motion challenging his

sentence of life imprisonment without the possibility of parole. Pursuant to 18

U.S.C. § 3006A, Sparks also moves this court to appoint as his counsel the

attorney who filed the instant motion. 

Sparks was convicted in federal court, on a guilty plea, of aiding and

abetting a carjacking resulting in death, an offense he committed when he was

sixteen years old. The district court sentenced him in 2001 to life imprisonment

without the possibility of parole. Sparks has previously filed a motion under 28

U.S.C. § 2255, which was denied.

Section 2255(h) by its terms bars a federal prisoner from filing a second or

successive motion to vacate, set aside, or correct a sentence unless the

United States Court of Appeals

Fifth Circuit

F I L E D

September 16, 2011

Lyle W. Cayce

Clerk

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No. 11-50447

appropriate court of appeals certifies that the petition either (1) contains “newly

discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found the movant guilty of the offense,” or (2)

is premised on “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” 

Sparks seeks our permission to file a second § 2255 motion based solely on the

grounds that the Supreme Court’s recent decision in Graham v. Florida, 130 S.

Ct. 2011 (2010), has rendered his sentence unconstitutional: the Court held

unequivocally in Graham that “[t]he Constitution prohibits the imposition of a

life without parole sentence on a juvenile offender who did not commit

homicide.” Id. at 2034. Sparks further contends, as he must under § 2255(h),

both that Graham created “a new rule of constitutional law . . . that was

previously unavailable” to him and that Graham has been “made retroactive to

cases on collateral review by the Supreme Court.” § 2255(h).

Sparks has made a sufficient prima facie showing to be permitted to

present his second § 2255 motion. First, Graham clearly states a new rule of

constitutional law that was not previously available: the case was certainly the

first recognition that the Eighth Amendment bars the imposition of life

imprisonment without parole on non-homicide offenders under age eighteen.1

Second, Graham has been “made retroactive to cases on collateral review by the

Supreme Court.” 

In Tyler v. Cain, 533 U.S. 656 (2001), the Supreme Court explained that

a case is “made retroactive to cases on collateral review by the Supreme Court”

for purposes of the statutory limitations on second or successive habeas

Whether aiding and abetting a carjacking resulting in death constitutes “homicide” 1

within the meaning of Graham is a nonfrivolous question that we leave to the district court

to decide in the firstinstance in evaluating the motion. For the present purposes, we hold only

that Sparks has made a prima facie showing adequate to allow the district court to consider

this issue.

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petitions if and “only if this Court has held that the new rule is retroactively 2

applicable to cases on collateral review.” Id. at 662. The Tyler Court explained,

however, that “this Court can make a rule retroactive over the course of two

cases. . . . Multiple cases can render a new rule retroactive . . . if the holdings

in those cases necessarily dictate retroactivity of the new rule.” Id. at 666. 

Sparks contends that Graham, when taken together with one of the exceptions

to the presumption of non-retroactivity articulated in Teague v. Lane, 489 U.S.

288, 307 (1989) (plurality opinion)—and reiterated most recently in Schriro v.

Summerlin, 542 U.S. 348, 351–52 (2004)—“necessarily dictate[s]” the

retroactivity of Graham’s holding. We agree. 

Teague describes two types of cases as retroactive in nature. First, under

the doctrine relevant here, a rule is deemed retroactive if it places “‘certain kinds

of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe.’” 489 U.S. at 307 (quoting Mackey v. United

States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting

in part)). As the Court explained in Penry v. Lynaugh, 492 U.S. 302, 330 (1989), 

overruled on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002), this

exception should be understood as extending “not only [to] rules forbidding

criminal punishment of certain primary conduct but also rules prohibiting a

certain category of punishment for a class of defendants because of their status

or offense.” Id. at 330; see also Schriro, 542 U.S. at 351–52. Second, Teague

provides that “a new rule should be applied retroactively if it requires the

observance of those procedures that . . . are implicit in the concept of ordered

liberty.” 489 U.S. at 307 (internal quotation marks omitted). 

Although Tyler was decided in the context of a successive petition filed by a state 2

prisoner and interprets 28 U.S.C. § 2244(b)(2)(A), the decision applies with equal force to the

identically-worded § 2255(h)(2) standard for successive motions to vacate, set aside, or correct

a sentence filed by federal prisoners. In re Elwood, 408 F.3d 211, 213 (5th Cir. 2005).

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As the Supreme Court held in Tyler, a case that fits within this second,

amorphous Teague exception does not satisfy the test of logical necessity so as

to be inherently retroactive; in such a case, “[t]he most [the petitioner] can claim

is that, based on the principles outlined in Teague, this Court should make [the

underlying decision] retroactive to cases on collateral review”—not that logic

dictates that it already has. 533 U.S. at 666. But the opposite is generally true

with respect to the first Teague exception—the only one at issue here. In a

helpful explanatory concurrence to Tyler, Justice O’Connor explained that a

decision that fits within the first Teague exception was the paradigmatic

example of multiple holdings that together “necessarily dictate” retroactivity:

This Court . . . may “ma[k]e” a new rule retroactive through

multiple holdings that logically dictate the retroactivity of the new

rule. To apply the syllogistic relationship described [in the

dissenting opinion and approved by the majority opinion], if we hold

in Case One that a particular type of rule applies retroactively to

cases on collateral review and hold in Case Two that a given rule is

of that particular type, then it necessarily follows that the given rule

applies retroactively to cases on collateral review. In such

circumstances, we can be said to have “made” the given rule

retroactive to cases on collateral review.

The relationship between the conclusion that a new rule is

retroactive and the holdings that “ma[k]e” this rule retroactive,

however, must be strictly logical—i.e., the holdings must dictate the

conclusion and not merely provide principles from which one may

conclude that the rule applies retroactively. . . .

It is relatively easy to demonstrate the required logical relationship

with respect to the first exception articulated in Teague v. Lane. 

Under this exception, “a new rule should be applied retroactively if

it places ‘certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe.’” When the Court holds as a new rule in a subsequent

case that a particular species of primary, private individual conduct

is beyond the power of the criminal lawmaking authority to

proscribe, it necessarily follows that this Court has “made” that new

rule retroactive to cases on collateral review. The Court has done

so through its holdings alone, without resort to dicta and without

any application of principles by lower courts.

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533 U.S. at 668–69 (citations omitted; emphasis in original). For this reason, the

Supreme Court’s decision in Atkins barring the execution of the mentally

retarded has been given retroactive effect, see, e.g., Bell v. Cockrell, 310 F.3d 330,

332 (5th Cir. 2002), as has the Court’s decision in Roper v. Simmons, 543 U.S.

551, 568 (2005), barring the execution of juvenile offenders, see Arroyo v. Dretke,

362 F. Supp. 2d 859, 883 (W.D. Tex. 2005), aff’d on other grounds sub nom.

Arroyo v. Quarterman, 222 F. App’x 425 (5th Cir. 2007) (unpublished)(per

curiam). Atkins and Roper both “prohibit[] a certain category of punishment for

a [certain] class of defendants because of their status or offense,” Penry, 492 U.S.

at 330; so too does Graham, which bars the imposition of a sentence of life

imprisonment without parole on a juvenile offender. By the combined effect of

the holding of Graham itself and the first Teague exception, Graham was

therefore made retroactive on collateral review by the Supreme Court as a

matter of logical necessity under Tyler. 

Sparks’s motion to this court thus makes a sufficient prima facie showing

that he might be entitled to relief under Graham—a new and retroactive rule of

constitutional law—and therefore his successive motion for relief under § 2255

is permitted. We hereby GRANT the motion for an order authorizing Sparks 3

to file his second § 2255 motion with the United States District Court for the

Western District of Texas; IT IS SO ORDERED.

We DENY WITHOUT PREJUDICE Sparks’s motion for appointment of

counsel inasmuch as the limited proceedings before this court have now

concluded; Sparks may reurge this motion before the district court.

 We once again reiterate that our inquiry is limited to whether Sparks’s “motion . . .

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contain[s] . . . a new rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable.” § 2255(h)(2). The motion surely

contains this nonfrivolous argument. We express no opinion as to the ultimate merits of the

motion.

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