No. 5:07-CV-01290-D (W.D. Okla.)
TYMKOVICH, Chief Judge, and KELLY, Circuit Judge.
Julius Darius Jones, an Oklahoma prisoner proceeding through
counsel, seeks an order authorizing him to file a second or
successive capital habeas petition under 28 U.S.C. §
2254 so he may assert a claim for relief based on Hurst
v. Florida, ___U.S.___, 136 S.Ct. 616 (2016).
See 28 U.S.C. § 2244(b)(3). To obtain
authorization, Jones must make a prima facie showing that his
claim meets the gatekeeping requirements of 28 U.S.C. §
2244(b). Id. § 2244(b)(3)(C); Case v.
Hatch, 731 F.3d 1015, 1027-29 (10th Cir. 2013). Because
Jones has not done so, we deny authorization.
was convicted in 2002 of felony murder and sentenced to
death. The judgment and sentence were affirmed on direct
appeal in 2006, and his subsequent application for state
post-conviction relief was denied. Jones filed a federal
habeas petition in 2007 challenging his conviction and
sentence on grounds of ineffective assistance of trial and
appellate counsel. The district court denied relief in 2013,
and this court ultimately affirmed the denial in 2015. The
Supreme Court denied certiorari in October 2016. Jones now
seeks authorization to file a second § 2254 petition so
that he can assert the following claim: his sentence of death
violates the Fifth, Sixth, Eighth, and Fourteenth Amendments
because the jury in his case was not instructed that it had
to find beyond a reasonable doubt that the aggravating
circumstances outweighed the mitigating circumstances before
it could impose a sentence of death.
authorize a successive claim when "the claim relies on a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable." 28 U.S.C. § 2244(b)(2)(A). Jones
contends that Hurst sets forth such a rule. He
asserts that the Supreme Court in Hurst
"announced, for the first time, that the weighing
decision underlying a sentence of death, must be found by a
jury beyond a reasonable doubt." Mot. for Authorization
at 2. And he contends that "Hurst
also warrants retroactive application." Id. at
for the sake of argument that Hurst announced a new
rule of constitutional law about the weighing decision, we
turn to the question of retroactivity. Jones argues that
"Hurst warrants retroactive application, "
Mot. for Authorization at 3, because it fits an exception to
the general rule against retroactive application of new
procedural criminal rules set forth in Teague v.
Lane, 489 U.S. 288, 310 (1989). Jones first contends
that the new rule he identifies is a substantive rule of
criminal law, which is entitled to retroactive application,
Welch v. United States, ___U.S.___, 136 S.Ct. 1257,
1264 (2016) ("[N]ew substantive rules generally
apply retroactively." (internal quotation marks
omitted)). Alternatively, he argues that if it is a
procedural rule, it is a watershed procedural rule, which is
also entitled to retroactive application, id.
("[W]atershed rules of criminal procedure, which are
procedural rules implicating the fundamental fairness and
accuracy of the criminal proceeding, will also have
retroactive effect." (internal quotation marks
we made clear in In re Gieswein, 802 F.3d 1143 (10th
Cir. 2015) (per curiam), and Cannon v. Mullin, 297
F.3d 989 (10th Cir. 2002), whether, in our view, a
new rule warrants retroactive application under
Teague and its progeny is not the proper inquiry for
purposes of § 2244(b)(2)'s gatekeeping requirements.
Under § 2244(b)(2)(A), "the Supreme Court is the
only entity that can 'ma[k]e' a new rule retroactive.
The new rule becomes retroactive, not by the decisions of the
lower court or by the combined action of the Supreme Court
and the lower courts, but simply by the action of the Supreme
Court." Tyler v. Cain, 533 U.S. 656, 663
(2001). "[T]he only way [the Supreme Court] could make a
rule retroactively applicable is through a 'holding'
to that effect." Cannon, 297 F.3d at 993 (10th
Cir. 2002) (quoting Tyler, 533 U.S. at 663);
accord Gieswein, 802 F.3d at 1146. The Supreme Court
has not held that its decision in Hurst is
retroactively applicable to cases on collateral review.
invitation to us to find Hurst retroactively
applicable not only ignores our clear precedent in
Cannon and Gieswein, but relies on
authority from the Seventh Circuit that we have explicitly
rejected. "It is clear that the mere fact a new rule
might fall within the general parameters of
overarching retroactivity principles established by the
Supreme Court (i.e., Teague) is not
sufficient." Cannon, 297 F.3d at 993.
"[I]n the context of deciding a motion for
authorization, it is not this court's task to determine
whether (or not) a new rule fits within one of the categories
of rules that the Supreme Court has held apply retroactively.
Our inquiry is statutorily limited to whether the Supreme
Court has made the new rule retroactive to cases on
collateral review." Gieswein, 802 F.3d at 1146
insists in his reply that Hurst announced a new rule
of substantive law, which, by its very nature, is
retroactively applicable. But the Supreme Court has not held
that Hurst announced a substantive rule, and it is
not our role to do so in the first instance in deciding a
motion for authorization. As the Supreme Court explained in
Tyler, it is unlikely that a court of appeals could
decide within the thirty days allotted it under §
2244(b)(3)(D) whether a motion for authorization made the
required prima facie showing "if [the court] had to do
more than simply rely on Supreme Court holdings on
retroactivity. The stringent time limit thus suggests that
the courts of appeals do not have to engage in the difficult
legal analysis that can be required to determine questions of
retroactivity in the first instance." 533 U.S. at 664.
Because the Supreme Court has not held its decision in
Hurst to be retroactively applicable to cases on
collateral review, Jones cannot meet the requirements of
§ 2244(b)(2)(A) necessary for authorization of his
Motion for Authorization is therefore denied. This denial of
authorization "shall not be appealable and shall not be
the subject of a petition for rehearing or for a writ of
certiorari." 28 U.S.C. § 2244(b)(3)(E). The Federal
Public Defender for the District of Arizona is appointed to
represent Julius Darius Jones pursuant to 18 U.S.C. §
3006A(a)(2)(B) effective nunc pro tunc to the date the Motion
for Authorization was filed in this court.
[*] The Honorable Neil Gorsuch considered
this Motion for Authorization originally, but did not
participate in this Order. The practice of this court permits
the remaining two panel judges, if in agreement, to act as a
quorum in resolving this proceeding. See 28 U.S.C.
§ 46(d); United States v. Wiles, 106 F.3d 1516,
1516 n* (10th Cir. 1997) (quorum of panel judges may resolve
an appeal) (collecting cases); In re Gibbs, 223 ...