IN RE: Derrick THOMAS (2019)

OPINION *

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, 132 S.Ct. 2455, 183 L.Ed.2d 407 (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, 132 S.Ct. 2455.

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, 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, 125 S.Ct. 2478, 162 L.Ed.2d 343 (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, 125 S.Ct. 2478.

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, 125 S.Ct. 2478. Thomas now claims his application is timely because he filed it within a year of Montgomery v. Louisiana, ––– U.S. ––––, 136 S. Ct. 718, 732, 193 L.Ed.2d 599 (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 Thomas’s application for leave to file a second or successive habeas petition under 28 U.S.C. § 2244(b).

HARDIMAN, Circuit Judge.