United States District Court, D. Connecticut
RULING RE: SUCCESSIVE PETITION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE (DOC. NO. 37)
C. Hall United States District Judge
Requirements of Section 2255(h)(2)
Standard of Review Under Section 2255(h)
Second Circuit's Mandate Authorizing Successive Petition
Section 2255(h)(2) in the Miller Context
Analogous Interpretation of Section 2255(h) from Cases Under
Johnson v. United States
Interpretation of Section 2255(h) and Application to This
Case .................... 26
Miller's Application to 18-Year-Olds
Second Circuit authorized the petitioner, Luis Noel Cruz, to
file a successive habeas petition pursuant to section 2255 of
title 28 of the United States Code on July 22, 2013.
See Mandate of the USCA (Doc. No. 23). On August 19,
2014, Cruz filed the Successive Petition to Vacate, Set
Aside, or Correct Sentence currently pending before the
court. See Successive Petition to Vacate, Set Aside,
or Correct Sentence (“Pet. to Vacate”) (Doc. No.
37). In it, Cruz argues, inter alia, that his
sentence of mandatory life imprisonment without the
possibility of parole violates the Eighth Amendment of the
United States Constitution, relying on the rule announced in
Miller v. Alabama, 567 U.S. 460 (2012). See
id. at 10-22. The respondent, the United States
(“the Government”), opposes Cruz's Petition.
See Government's Response to Pet. to Vacate
(“Resp. to Pet.”) (Doc. No. 64).
reasons set forth below, Cruz's Petition is
Noel Cruz was born on December 25, 1975. See
Transcript of Evidentiary Hearing (“Cruz Tr.”)
(Doc. No. 114) at 77. Beginning on or about November 1991,
when Cruz was 15 years old, he joined the Latin Kings, a
violent gang with branches of operations in Connecticut.
See Pet. to Vacate, Ex. 1, Indictment (Doc. No.
37-1) at ¶ 14. Cruz testified at an evidentiary hearing
before this court that he never held a position of leadership
in the gang and that members were expected to obey the
orders, called “missions, ” of the leaders.
See Cruz Tr. at 14-15, 19. He testified that a
mission could include anything, including murder, and that
disobedience would result in the same mission being carried
out on the person who disobeyed. See id. at 14, 19.
Cruz further testified that he attempted to renounce his
membership in the Latin Kings prior to the occurrence of the
murders for which he is now serving concurrent life
sentences. See id. at 16-17. While he believed at
the time that he had successfully left the gang, he later
learned that the leaders of the Latin Kings had viewed his
attempt to resign as an act of disrespect and that his status
in the gang was uncertain. See id. at 17, 19.
turned 18 on December 25, 1993. On May 14, 1994, when Cruz
was 18 years and 20 weeks old, Cruz and another member of the
Latin Kings, Alexis Antuna, were given a mission by gang
leader Richard Morales. See United States v. Diaz,
176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill
Arosmo “Rara” Diaz. See Id. Carrying out
that mission, Cruz and Antuna shot and killed Diaz and his
friend, Tyler White, who happened to be with Diaz at the
time. See id. Cruz testified at the hearing before
this court that he now admits to committing both murders.
See Cruz Tr. at 27. He further testified that Antuna
informed him at the time that the leaders of the Latin Kings
were debating what would happen to him as a result of his
attempt to leave the gang. See id. at 19. According
to his testimony, Cruz believed that, if he did not carry out
the mission, he himself would be killed. See id.
December 1994, a grand jury indicted Cruz for, inter
alia, three Violent Crimes in Aid of Racketeering
(“VCAR”), in violation of section 1959(a) of
title 18 of the United States Code. See Indictment
at ¶¶ 75-81; United States v. Millet, No.
94-CR-112, Superseding Indictment (Doc. No. 625) at
¶¶ 74-79. The three VCAR crimes were the conspiracy
to murder Diaz (Count 24), the murder of Diaz (Count 25), and
the murder of White (Count 26). See id. Cruz and a
number of his co-defendants went to trial and, on September
29, 1995, a jury convicted Cruz on all three VCAR counts, in
addition to violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §
1962(c), conspiracy to violate RICO, and conspiracy to commit
a drug offense. See Millet, Verdict Form (Doc. No.
945); Millet, Judgment (Doc. No. 1072) at 1. On
January 30, 1996, Cruz was sentenced to, inter alia,
four concurrent terms of mandatory life without parole for
the two VCAR murders, the RICO violation, and the conspiracy
to violate RICO. See Judgment at 2.
now 42 years old. He testified at the hearing before this
court that, during his incarceration, he renounced the Latin
Kings and has been a model inmate, teaching programs to other
inmates and receiving only one disciplinary ticket during his
24 years of incarceration. See Cruz Tr. at 23, 70.
His testimony is supported by letters from the staff at the
Bureau of Prisons. See Pet. to Vacate, Ex. 2, 3.
4, 1999, the Second Circuit affirmed Cruz's conviction on
appeal. See Diaz, 176 F.3d at 73. Cruz subsequently
filed four habeas petitions under section 2255 of title 28 of
the United States Code, from 2001 to 2013, each of which was
denied. See Resp. to Pet. at 4-6. On July 22, 2013,
the Second Circuit granted Cruz's request to file a
successive petition under section 2255(h)(2) to raise a claim
under Miller. See Mandate of USCA. The
Second Circuit determined that Cruz made a prima
facie showing that he satisfied the requirements of
section 2255(h) and directed this court to address
“whether the United States Supreme Court's decision
in Miller announced a new rule of law made
retroactive to cases on collateral review.”
Id. at 1.
filed his Petition on August 18, 2014. See Pet. to
Vacate. In it, he raised two arguments. First, Cruz
argued that he was 15 years old when he first joined the
Latin Kings and, because membership in a RICO enterprise is
an element of his VCAR conviction, he was a juvenile at the
time that he committed the element of the crime that triggers
mandatory life imprisonment, thereby making his sentence
unconstitutional under Miller. See id. at
4-9. Second, he argued that Miller's prohibition
of mandatory life imprisonment for adolescents should also be
applied to those who were 18 at the time of their crimes
because scientific research and national consensus indicate
that 18-year-olds exhibit the same hallmark features of youth
that justified the decision in Miller. See
id. at 10-22.
12, 2015, this court granted Cruz's Motion to Stay the
proceedings, pending the Supreme Court's decision on the
retroactivity of Miller. See Order Granting
Motion to Stay (Doc. No. 49). In 2016, the Supreme Court held
in Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
that Miller v. Alabama announced a new substantive
constitutional rule that was retroactive on collateral
review. See Montgomery, 136 S.Ct. at 734.
April 3, 2017, after briefing and argument, the court granted
Cruz's Motion for a Hearing. See Ruling re:
Motion for Hearing and Supplemental Section 2255 Motion
(“Ruling re: Mot. for Hr'g”) (Doc. No. 86).
The court held that there was no issue of fact regarding
Cruz's first argument, finding that Cruz remained a
member of the Latin Kings after turning 18 and committed the
murders at age 18. See id. at 19-22. Therefore, he
was 18 “during his commission of each of the elements
of the crime of VCAR murder.” Id. at 21.
Accordingly, the court declined to grant him a hearing to
offer evidence in support of that theory. See id. at
22. The court found, however, that an issue of fact existed
as to whether Miller's protections should apply
to an 18-year-old and ordered the parties to present evidence
of national consensus and scientific research on this issue.
See id. at 23-29. The court denied the
Government's Motion for Reconsideration of its decision.
See Ruling re: Motion for Reconsideration
(“Ruling re: Reconsideration”) (Doc. No. 99).
September 13 and 29, 2017, the court held evidentiary
hearings at which an expert witness, Dr. Laurence Steinberg,
testified about the status of scientific research on
adolescent brain development and Cruz testified about the
trajectory of his life. See Transcript of Evidentiary
Hearing (“Steinberg Tr.”) (Doc. No. 111); Cruz
Tr. After the hearing, the court permitted the parties to
file supplemental briefings and held oral argument on
February 28, 2018. See Petitioner's Post-Hearing
Memorandum in Support of Pet. to Vacate (“Post-Hr'g
Mem. in Supp.”) (Doc. No. 115); Government's
Post-Hearing Memorandum in Opposition to Pet. to Vacate
(“Post-Hr'g Mem. in Opp.”) (Doc. No. 117);
Petitioner's Reply to Government's Post-Hr'g Mem.
in Opp. (“Post-Hr'g Reply in Supp.”) (Doc.
No. 120); Minute Entry, Oral Argument Hearing (Doc. No. 124).
2255 of title 28 of the United States Code permits a federal
prisoner to move to vacate, set aside, or correct his
sentence “upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack.” 28 U.S.C. § 2255(a) (2016).
Therefore, relief is available “under § 2255 only
for a constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law that constitutes a
fundamental defect which inherently results in a complete
miscarriage of justice.” Cuoco v. United
States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting
United States v. Bokun, 73 F.3d 8, 12 (2d Cir.
1995)). The petitioner bears the burden of proving that he is
entitled to relief by a preponderance of the evidence.
See Skaftouros v. United States, 667 F.3d 144, 158
(2d Cir. 2011).
court adopts the analysis in its prior Ruling finding no
issue of fact regarding Cruz's first argument that he was
under the age of 18, when at least one element of the VCAR
murders was committed. See Ruling re: Mot. for
Hr'g at 19-22. Accordingly, Cruz's Petition is denied
on that ground. The court undertakes in this Ruling to
address Cruz's second argument: that Miller
applies to him as an 18-year-old.
Requirements of Section 2255(h)(2)
Standard of Review Under Section 2255(h)
reaching the merits of Cruz's Petition, the court must
first address the threshold issue of whether the requirements
of section 2255(h)(2) have been satisfied. When a petitioner
is filing a second or successive petition for habeas relief
under section 2255(h), as here, the petitioner must receive
authorization from the appropriate Court of Appeals to file
the petition. See 28 U.S.C. § 2255(h). The
Court of Appeals may certify the petition if it finds that
the petition has made a prima facie showing that the
petition “contain[s] . . . a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.”
Id.; 28 U.S.C. § 2244(b)(3)(C) (establishing a
prima facie standard, which section 2255(h)
incorporates); see also Bell v. United States, 296
F.3d 127, 128 (2d Cir. 2002). Without such certification by
the Court of Appeals, the district court lacks jurisdiction
to decide the merits of the petition. See Burton v.
Stewart, 549 U.S. 147, 157 (2007).
the Court of Appeals has certified the petition, however,
this court must conduct a “fuller exploration” of
whether the petition has satisfied the requirements of
section 2255(h). See Bell, 296 F.3d at 128 (quoting
Bennett v. United States, 119 F.3d 468, 469-70 (7th
Cir. 1997)). In doing so, the court is serving a gate-keeping
function prior to determining the merits of the peition. If
the court finds that the Petition has not satisfied the
requirements of section 2255(h), the court must dismiss the
Petition. See 28 U.S.C. § 2244(b)(4) (“A
district court shall dismiss any claim presented in a second
or successive application that the court of appeals has
authorized to be filed unless the applicant shows that the
claim satisfies the requirements of this section.”);
In re Bradford, 830 F.3d 1273, 1276 (11th Cir. 2016)
(holding that section 2255(h) incorporates section
2244(b)(4)). “Even where the Court of Appeals has
authorized the filing of a successive petition, its order
authorizing the district court to review the petition does
not foreclose the district court's independent review of
whether the petition survives dismissal.” Ferranti
v. United States, No. 05-CV-5222 (ERK), 2010 WL 307445,
at *10 (E.D.N.Y. Jan. 26, 2010), aff'd, 480
Fed.App'x 634 (2d Cir. 2012). Although Ferranti
cites section 2244(b)(4) for the proposition that the
district court is authorized to dismiss a claim that does not
meet the requirements of section 2255(h), id., the
language of section 2244(b)(4) actually requires the
district court to dismiss the claim in such situations.
See 28 U.S.C. § 2244(b)(4) (stating that the
district court “shall dismiss” such a
claim); Ferranti v. United States, 480 Fed.
App'x 634, 636-37 (2d Cir. 2012) (stating that such a
claim “will be dismissed”).
the Court of Appeals' inquiry is limited to whether the
petitioner has made a prima facie showing that the
requirements are met, the district court must determine that
they are actually met. See id.; see also Tyler
v. Cain, 533 U.S. 656, 661 n.3 (2001). Because the
standards used by the Court of Appeals and the district court
are different, this court must determine de novo
that the requirements of section 2255(h) are satisfied.
See In re Moore, 830 F.3d 1268, 1271 (11th Cir.
2016) (“We rejected the assertion that the district
court owes ‘some deference to the court of appeals'
prima facie finding that the requirements have been
met.” (citation omitted)); In re Pendleton,
732 F.3d 280, 283 (3d Cir. 2013) (“However, we stress
that our grant is tentative, and the District Court must
dismiss the habeas corpus petition for lack of jurisdiction
if it finds that the requirements for filing such a petition
have not been met.”); Johnson v. United
States, 720 F.3d 720, 720-21 (8th Cir. 2013).
Second Circuit's Mandate Authorizing Successive Petition
case, the Second Circuit authorized Cruz to “file a
§ 2255 motion raising his proposed claim based on
Miller v. Alabama.” Mandate of USCA at 1. The
Mandate then directs this court to “address, as a
preliminary inquiry under § 2244(b)(4), whether the
United States Supreme Court's decision in Miller
announced a new rule of law made retroactive to cases on
collateral review.” Id. The Government argues that
the Mandate only authorizes Cruz to file a successive
petition on his claim that Miller applies to him
because he was under the age of 18 at the time of the
crime-that is, the claim rejected by this court in its Ruling
on the Motion for a Hearing. See Motion for
Reconsideration (“Mot. for Recons.”) (Doc. No.
94) at 2-3. However, at oral argument on the Petition before
this court, the Government acknowledged that the Mandate is
ambiguous as to the nature of the proposed claim.
Memorandum in Support of Application to File a Second or
Successive Section 2255 Petition, filed before the Second
Circuit, is unclear as to the exact nature of the argument he
intended to raise. See Cruz v. United States (Second
Circuit Court of Appeals), No. 13-2457, Memorandum of Law in
Support of Application to File a Second or Successive Section
2255 Petition (“App. to File Successive Pet.”)
(Doc. No. 2). However, Cruz does state in the Memorandum that
“the case involves conduct that is open to much
speculation and interpretation, in that the charges include
juvenile and non-juvenile conduct.” Id. at 8.
He also quotes a case stating that “modern scientific
research supports the common sense notion that
18-20-year-olds tend to be more impulsive than young adults
ages 21 and over.” Id. (quoting Nat'l
Rifle Assoc. of Am. v. Bureau of Alcohol, 700 F.3d 185,
209 n.21 (5th Cir. 2012)). Additionally, Cruz states in a
Supplemental Memorandum that his crime involved two predicate
acts-“one juvenile and the other 5 months after
Applicant's 18th birthday.” Cruz v. United
States (Second Circuit Court of Appeals), No. 13-2457,
Supplementary Papers to Motion for Successive Petition (Doc.
No. 14) at 2. Based on these statements, this court concludes
that, when the Second Circuit authorized Cruz to file a
successive petition, it was aware that he was at least 18
years old during an element of the offense.
the court reads the Second Circuit's Mandate as
authorizing this court's jurisdiction over both of
Cruz's arguments under Miller. This reading of
the Mandate is especially appropriate because Cruz was
proceeding pro se when he petitioned the Second
Circuit for certification to bring his successive petition.
The court must interpret pro se filings liberally
“to raise the strongest arguments that they
suggest.” See Willey v. Kirkpatrick, 801 F.3d
51, 62 (2d Cir. 2015). Therefore, the court liberally reads
any ambiguity in Cruz's filings before the Second Circuit
to include the claim now before the court and reads the
Second Circuit's Mandate to include the claim now before
the court. It will proceed to analyze whether such a claim
satisfies the requirements of section 2255(h).
noted previously, the court makes such a determination de
novo. See, e.g., In re Moore, 830 F.3d
at 1271. Thus, Cruz's argument that section 2255(h) is
satisfied because “the Second Circuit's 2013 order
is, by now, res judicata” is unavailing.
See Post-Hr'g Reply in Supp. at 2. The Second
Circuit's certification of the Petition under a prima
facie standard does not determine the court's
current, de novo inquiry of whether the Petition
meets the requirements of section 2255(h).
also argues that the court should reject as untimely the
Government's argument that section 2255(h) has not been
satisfied because the Government failed to raise the argument
at the outset of the case. See Post-Hr'g Reply
in Supp. at 1. The court already addressed the
Government's untimeliness in its prior Ruling.
See Ruling re: Mot. for Recons. at 6-7. The court
again reiterates that, by failing to raise this issue prior
to oral argument, the Government “unnecessarily delayed
and complexified this proceeding.” Id. at 6.
However, the court is not prepared to go so far as to treat
the Government's untimeliness as a waiver of the
district courts in this Circuit have held that a district
court lacks subject matter jurisdiction to rule on the merits
of a successive petition under section 2255(h) if the
petition has not been certified by the Court of Appeals
according to the procedure set out in section 2244(b)(3).
See Canini v. United States, No. 10 CIV. 4002 PAC,
2014 WL 1664240, at *1 (S.D.N.Y. Apr. 17, 2014);
Otrosinka v. United States, No. 12-CR-0300S, 2016 WL
3688599, at *3 (W.D.N.Y. July 12, 2016), certificate of
appealability denied, No. 16-2916, 2016 WL 9632301 (2d
Cir. Dec. 14, 2016). To that extent, the requirements of
section 2255(h) are jurisdictional and not subject to waiver.
Whether the district court's responsibility to dismiss a
petition certified under section 2244(b)(4) is also
jurisdictional, however, is less clear. One case from the
Third Circuit contains language indicating that section
2244(b)(4) is also jurisdictional. See In re
Pendleton, 732 F.3d 280, 283 (3d Cir. 2013)
(“[T]he District Court must dismiss the habeas corpus
petition for lack of jurisdiction if it finds that
the requirements for filing such a petition have not been
met.” (emphasis added)). Cruz has not pointed the court
to any contrary case in which the Government's failure to
timely raise the issue waived the argument and absolved the
court of its responsibility to dismiss the claim under
the 2255(h) issue as raised by the government is not
jurisdictional, the court still declines to treat the
Government's tardy raising of the argument as a waiver.
The issue has since been thoroughly briefed by both parties,
such that no party has been prejudiced by the
Government's untimeliness. See Mot. for Recons.;
Opposition to Mot. for Recons. (Doc. No. 95); Post-Hr'g
Mem. in Opp.; Post-Hr'g Reply in Supp. Therefore, the
court proceeds to consider whether section 2255(h) has been
Section 2255(h)(2) in the Miller Context
that section 2255(h) has been satisfied, the court must
determine that the Petition contains “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. § 2255(h)(2). The
Government does not disagree that Miller satisfies
these three requirements. The Supreme Court in Montgomery
v. Louisiana held that Miller establishes a new
substantive rule that applies retroactively on collateral
review. See Montgomery, 136 S.Ct. at 734. That rule
was previously unavailable to Cruz prior to the
Miller decision in 2012.
the Government argues that Miller does not apply to
Cruz's Petition because the Government reads the
“new rule” in Miller to protect only
defendants under the age of 18. See Post-Hr'g
Mem. in Opp. at 2-6. According to the Government,
Miller held the following: “We therefore hold
that mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth
Amendment's prohibition on cruel and unusual
punishments.” Id. at 3 (emphasis omitted)
(quoting Miller, 567 U.S. at 465). Therefore, the
Government argues that Cruz's Petition does not rely on
Miller, as Miller would not grant him
relief as an 18-year-old. See id. at 2-6. Instead,
the Government characterizes Cruz's Petition as asking
the court to create a new rule expanding Miller,
which the Government argues the court cannot do on a 2255
petition. See id.
threshold inquiry before the court, then, is whether the
Petition “contains” the new rule in
Miller, according to the requirement of section
2255(h). This inquiry turns on whether “contains”
is read to require a petition to raise the specific set of
facts addressed by the holding in Miller or whether
it permits a petition to rely on the principle of
Miller to address a new set of facts not
specifically addressed by Miller, but also not
excluded by it. Neither party has pointed the court to any
binding case law addressing what it means for a petition
“to contain” a “new rule” of
Government has, however, identified two cases in which the
courts determined that section 2255(h) did not authorize the
filing of a successive petition under Miller for
defendants who were 18 years old or older. See
Post-Hr'g Mem. in Opp. at 5 (citing In re Frank,
690 Fed.App'x 146 (Mem.) (5th Cir. 2017); La Cruz v.
Fox, No. CIV-16-304-C, 2016 WL 8137659, at *6 (W.D.
Okla. Dec. 22, 2016), report and recommendation
adopted, No. CIV-16-304-C, 2017 WL 420159 (W.D. Okla.
Jan. 31, 2017)). In Frank, the Fifth Circuit
declined to certify a petition under section 2255(h)(2) for a
defendant who was 18 and 19 years old at the time of two of
the murders for which he was sentenced to mandatory life
without parole. See In re Frank, 690 Fed. App'x
at 146. In La Cruz, the district court for the
Western District of Oklahoma declined to transfer the case to
the Court of Appeals for the Tenth Circuit to consider
whether to authorize a successive 2255 petition. The court
determined that such a transfer would be futile, as
Miller did not apply to the petitioner, who was not
under the age of 18 at the time of his crime. See La
Cruz, 2016 WL 8137659, at *6.
court also located two other cases with a similar outcome.
See White v. Delbalso, No. 17-CV-443, 2017 WL
939020, at *2 (E.D. Pa. Feb. 21, 2017) (finding that the
defendant was not entitled to file a second habeas petition
under section 2244(b)(2) because he was 23 years old at the
time of the crime); United States v. Evans, No.
2:92CR163-5, 2015 WL 2169503, at *1 (E.D. Va. May 8, 2015)
(denying a successive 2255 motion, after certification by the
Court of Appeals, because Graham did not apply to
the 18-year-old petitioner).
court is not bound by these precedents. To the extent that
they may serve as persuasive authority, the court finds them
unpersuasive because none of these opinions discuss what it
means for the petition to “contain” a new rule in
Miller. The cases assume, without analysis, that
section 2255(h) only permits a petition to directly apply the
holding of Miller. Rather than following
such assumptions, this court will conduct ...