PRECEDENTIAL


UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT



  Nos. 12-3617, 12-3996 and 13-1455



  In re: MICHAEL J. PENDLETON,

                Petitioner in Case No. 12-3617



   In re: FRANKLIN X. BAINES,

                Petitioner in Case No. 12-3996



       In re: COREY GRANT,

                Petitioner in Case No. 13-1455
  On Applications for Leave to File a Second or Successive
   Habeas Petition pursuant to 28 U.S.C. Section 2244(b)
     No. 12-3617 related to W.D. Pa. No. 12-cv-00195
  before the Honorable Kim R. Gibson, District Judge and
        Honorable Keith A. Pesto, Magistrate Judge
     No. 12-3996 related to E.D. Pa. No. 12-cv-05672
          before the Honorable Edmund V. Ludwig
      No. 13-1455 related to D. N.J. No. 06-cv-05952
           before Honorable Harold A. Ackerman


              Argued on September 10, 2013


  Before: RENDELL, JORDAN and GREENAWAY, JR.,
                   Circuit Judges.

              (Opinion filed: October 3, 2013)


Lisa B. Freeland, Esquire (Argued)
Federal Public Defender
Western District of Pennsylvania
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

             Counsel for Petitioner Michael J. Pendleton




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Stephen A. Zappala, Jr., Esquire
District Attorney
Michael W. Streily, Esquire
Deputy District Attorney
Rusheen R. Pettit, Esquire (Argued)
Assistant District Attorney
Allegheny County Office of the District Attorney
436 Grant Street
303 Courthouse
Pittsburgh, PA 15219

             Counsel for Respondent Gerald Rozum,
             Superintendent at SCI Somerset


David R. Fine, Esquire (Argued)
George A. Bibikos, Esquire
K&L Gates, LLP
Market Square Plaza
17 North Second Street, 18th Floor
Harrisburg, PA 17101

             Counsel for Petitioner Franklin X. Baines




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R. Seth Williams, Esquire
District Attorney
Hugh J. Burns, Jr., Esquire
Chief, Appeals Unit
Thomas W. Dolgenos, Esquire
Chief, Federal Litigation
Ronald Eisenberg, Esquire (Argued)
Deputy District Attorney
Edward F. McCann, Jr., Esquire
First Assistant District Attorney
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107

             Counsel for Respondents Louis S. Folino,
             Superintendent, SCI, Green; The Attorney
             General of the Commonwealth of Pennsylvania


Marc Bookman, Esq.
Atlantic Center for Capital Representation
1315 Walnut Street – Ste. 1331
Philadelphia, PA 19107

             Counsel for the Atlantic Center for Capital
             Representation, Amicus Petitioner




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Bradley S. Bridge, Esq.
Defender Association of Philadelphia
1441 Sansom Street
Philadelphia, PA 19102

             Counsel for the Defender Association of
             Philadelphia, Amicus Petitioner


Marsha L. Levick, Esq.
Juvenile Law Center of Philadelphia
1315 Walnut Street – Ste. 400
Philadelphia, PA 19107

             Counsel for the Juvenile Law Center of
             Philadelphia, Amicus Petitioner


David B. Glazer, Esquire (Argued)
Glazer & Luciano
19-21 West Mount Pleasant Avenue
Livingston, NJ 07039

             Counsel for Petitioner Corey Grant




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Paul J. Fishman, Esquire
United States Attorney
Mark E. Coyne, Esquire
Assistant United States Attorney
Chief, Appeals Division
Steven G. Sanders, Esquire (Argued)
Assistant United States Attorney
Office of United States Attorney
970 Broad Street – Rm. 700
Newark, NJ 07102

              Counsel for Respondent United States of
              America


PER CURIAM

       In Miller v. Alabama, 

, 2460 (2010),
the Supreme Court held 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.‟” Corey Grant, Franklin X. Baines,
and Michael J. Pendleton (collectively, “Petitioners”), each of
whom claims to be serving a mandatory sentence of life
without the possibility of parole for offenses committed as
juveniles, seek our authorization to file successive habeas
corpus petitions under 28 U.S.C. §§ 2254 (for Baines and
Pendleton) and 2255 (for Grant) to raise Miller claims. Both
Baines and Pendleton were convicted in state court in
Pennsylvania, and Grant was convicted in federal court in
New Jersey. Because these petitions raise similar legal




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questions, we consolidated them for argument and now
address them jointly.
        Before a second or successive petition may be filed in
district court, the petitioner must apply for a certification
from the appropriate United States court of appeals. See 28
U.S.C. § 2244(b)(3)(A). A certification giving leave to file a
successive petition will be granted when the petitioner has
made a “prima facie” showing that his or her claim relies on
“a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” Id. § 2244 (b)(2)(A) & (3)(A)(C); see also §
2255(h)(2). Under our precedent, a “prima facie showing” in
this context merely means “„a sufficient showing of possible
merit to warrant a fuller exploration by the district court.‟”
Goldblum v. Klem, 

, 220 (3d Cir. 2007) (quoting
Bennett v. United States, 

, 469 (7th Cir. 1997)).

        The parties here agree that Miller states a new rule of
constitutional law, but dispute whether the Supreme Court has
made Miller retroactive to cases on collateral review. In
Pendleton‟s and Baines‟s cases, Pennsylvania argues that
Miller is not retroactive; in Grant‟s case, the United States
asserts that Miller is retroactive but that Grant‟s sentence
satisfies the new Miller rule and so no relief is warranted.1

1
  At this early stage, we will not consider whether Grant
actually qualifies for relief under Miller. We only determine
whether Grant has made a prima facie showing that Miller
created “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). See
Goldblum, 510 F.3d at 219 (“„[S]ufficient showing of
possible merit‟ in this context does not refer to the merits of




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Petitioners argue: (1) that the Supreme Court implicitly made
Miller retroactive by applying the rule to Miller‟s companion
case, Jackson v. Hobbs, which came to the Court through
Arkansas‟s state collateral review process; (2) that Miller
announced a substantive rule that “necessarily carr[ies] a
significant risk that a defendant . . . faces a punishment that
the law cannot impose upon him,” Schriro v. Summerlin, 

, 352 (2004) (internal quotations marks omitted), and
therefore should be given retroactive effect under Teague v.
Lane, 

 (1989) (plurality); and (3) that, in the
alternative, Miller qualifies as a “watershed procedural rule[]
of criminal procedure” meriting retroactive application under
Teague, 489 U.S. at 311.

        After extensive briefing and oral argument, we
conclude that Petitioners have made a prima facie showing
that Miller is retroactive. In doing so, we join several of our
sister courts of appeals. See, e.g., Wang v. United States, No.
13-2426 (2d Cir. July 16, 2013) (granting motion to file a
successive habeas corpus petition raising a Miller claim); In
re James, No. 12-287 (4th Cir. May 10, 2013) (same);
Johnson v. United States, 

 (8th Cir. 2013) (per
curiam) (same). But see In re Morgan, 

 (11th
Cir. 2013) (concluding that Miller is not retroactive), reh’g en
banc denied, 

; Craig v. Cain, No. 12-30035,

 (5th Cir. Jan. 4, 2013) (per curiam) (same).

       However, we stress that our grant is tentative, and the
District Court must dismiss the habeas corpus petition for


the claims asserted in the petition. Rather, it refers to the
merits of a petitioner‟s showing with respect to the
substantive requirements of 28 U.S.C. § 2244(b)(2).”).




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lack of jurisdiction if it finds that the requirements for filing
such a petition have not in fact been met. Goldblum, 510 F.3d
at 219-20; see also 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.”).           We therefore grant
Petitioners‟ motions under §§ 2244(b)(3) and 2255(h) and
authorize each to file a successive habeas corpus petition in
the district court.




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