### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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: T o ny Sparks, federal prisoner # 91929-080, moves this court fo r authorization to file a s uccessive 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 cou r t t o appoint as his counsel the attorney who filed the instant motion. S parks was convicted in federal court, on a guilty plea, of aidi n g a n d 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 unle ss the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 1 6, 2 011 Lyle W . Cayce Clerk Case: 11-50447 Document: 00511604783 Page: 1 Date Filed: 09/16/2011No. 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 retroact iv e to cases on collateral r e vi e w 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 2 0 3 4

. Sparks further contends, as he must under § 2255(h), both that Graham created “a new rule of constitutional la w . . . 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 moti o n . Fi r s t, Graham clearly states a new rule of constitutional law that was not previously available: the case was certainly the first recognition that the Eighth Amen d m e n t b ars the imposition of life imprisonment without parole on non-h o m i c i de 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 su c c e s s iv e habeas

Whet her aidi ng andabe tti ng a car jack ing r es ulti ng in dea th cons tit utes “hom icid e” 1 wi thin the me aning of Graha m is a no nfr ivolous que st ion thatw e leave to the dis tri ct cour t to dec ide in the fir st ins tanc e in evaluat ing the mo tio n. For the pr es ent pur pos es , we hold only thatSpar ks has mad e ap rim a f acies how ing adequa te toallowthe dis tri ct co urtto cons ide r this is sue
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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 m ak e 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 retroa c t ivi t y o f 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

o f p ri m a ry, private individual conduct beyond the power of the criminal law

making authorit y 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),

o v e rruled on other grounds by Atkins v. Virginia , 536 U.S. 304 (2002), thi s exception should be understood as extending “not only [to] rules forbidding criminal pun i s h m e n t of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status

o r o f f ense.” Id. at 330; see also Schriro , 542 U.S. at 351–52. Second, T e a g u e p rovides that “a new rule should be applied retroactively if it requires the observance of those procedures that

. . . are implicit in the concept of orde r ed liberty.” 489 U.S. at 307 (internal quotation marks omitted).

Altho ugh Tyler wa s dec ide d in the cont ext of a suc ces sive pet itio n fil ed b y a st ate 2 priso ner and inte rp ret s 28 U. S. C. § 2244(b)( 2)(A), the dec isi on app lies wi th equal for ce to the ide ntic ally- wo rd ed § 2255(h)( 2) st andar d for suc ces sive mo tio ns to vacat e, se t asi de, or cor rec t a s ente nce fil ed by f

ede ral priso ners
. In reEl wo od , 408 F.3d211 , 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 t h at 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 o n l y o n e a t issue here. In a helpful explanatory concurrence to Tyler , Justi c e O ’ C o nnor 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 retr o a c t iv e t hrough multiple holdings that logically dictate the retroactivity of the new rule. T o 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 o f 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 revi e w . In such circumstance s , 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 a n d 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 f r o m w hich 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
. L ane
. Under this exception, “a new rule should be applied retroactively if i t p l aces ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authorit y t o 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 authori ty to proscribe, it necessarily follows that this Court has “made” that new r u l e retroactive to cases on collateral review. The Court has done so through its holdings alone, w i t h out 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 t h e m e ntally retarded has been given retroactive effect, see, e.g. , Bell v. Cockrell , 310 F.3d 330, 332 ( 5th Cir. 2002), as has t h e 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 groun ds sub nom. Arroyo v. Quarterman , 222 F

. Ap p’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 f i r s t Teague exception, Graham was t herefore made retroactive on collateral review by the Supreme Cour t a s 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 Dist ri c t C o u r t for the Western District of Texas; IT IS SO ORDERED. We DENY W I T H O U T PREJUDICE Sparks’s motion for appointment of counsel inasmuch as the limited proceedings before this court h av e now concluded; Sparks may reurge this motion before the district court.

Weon ce again reit erat e t hat our inquiry isli mi ted to wh ethe r Sp ark s’ s “m oti on
. . . 3 cont ain[ s]

. . . a new rule of const itut ional law , mad e ret roac tive to cas es on coll ater al revie w by the Sup rem e Court , that wa s pr evious ly unavailab le. ” § 2255(h)( 2). The mo tio n sur ely cont ains this nonf

rivol ous argum ent. We expr es s no opi nion as to the ulti mat e me rit s of the
mo tio n. 5 Case: 11-50447 Document: 00511604783 Page: 5 Date Filed: 09/16/2011