RENEE HARRIS TOLIVER, Magistrate Judge.
Petitioner, a state prisoner, filed a successive petition for a writ of habeas corpus under 28 U.S.C. § 2254, claiming that his sentence of life imprisonment is unconstitutional in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), because he was only 16 years old when the offense of conviction was committed. The United States Court of Appeals for the Fifth Circuit subsequently granted Petitioner authorization to file the successive application. Upon review of the relevant pleadings and applicable law, the petition is
In 1997, Petitioner was convicted of capital murder and sentenced to life imprisonment. See State v. Hood, No. F96-14800 (283rd Jud. Dist. Ct., Dallas County, Tex., 1997), aff'd, No. 05-97-01243-CR, 1999 WL 814296 (Tex. App. — Dallas 1999, no pet.). He later unsuccessfully challenged his conviction in state and federal habeas proceedings. See Hood v. Cockrell, No. 3:01-CV-02680-G, 2003 WL 22790858 (N.D. Tex. Nov. 21, 2003), recommendation accepted, 2003 WL 102621 (N.D. Tex. Jan. 8, 2003) (dismissing first federal habeas petition as time barred). In February 2015, he filed a second state application claiming that his mandatory life sentence, for a crime he committed as a juvenile offender, violated the Eighth and Fourteenth Amendments to the United States Constitution under Miller v. Alabama. The Texas Court of Criminal Appeals dismissed the application as successive, see Ex Parte Hood, No. WR-49,111-02 (Tex. Crim. App. May 6, 2015)
Respondent argues that Miller is inapplicable because Petitioner was not sentenced to life imprisonment without the possibility of parole, therefore the petition is time barred and Petitioner also cannot make the requisite showing to file a successive application. Doc. 21 at 2-5. Petitioner replies that Miller is applicable because it prohibits mandatory life imprisonment for juvenile offenders who, like himself, ultimately may "not be eligible for parole" and, thus, face "the possibility of dying in prison." Doc. 28 at 2-3.
In the case sub judice, the authorization to file a successive petition granted by the Court of Appeals for the Fifth Circuit is explicitly "tentative," and requires this Court to dismiss Petitioner's habeas action if it determines that petitioner has not met the statutory requisites for filing. Doc. 11 at 2 (quoting Reyes-Requena v. United States, 243 F.3d 893, 899 (5th Cir. 2001)); see also 28 U.S.C. § 2244(b)(4) (providing that "[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.").
28 U.S.C. § 2244(b)(2)(A). For the reasons that follow, the Court finds that Petitioner's Miller claim fails to meet that requisite.
In Miller v. Alabama, the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469 (2012) (emphasis added). More recently, in Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 734-736 (2016), the Supreme Court held that the Miller opinion announced a new substantive rule of constitutional law that is retroactive on state collateral review. That notwithstanding, Petitioner's reliance on Miller is misplaced.
The Miller holding is not applicable here because Petitioner's 1997 sentence of life imprisonment is not without the possibility of parole. Doc. 21-1 at 3 (judgment). Indeed, Petitioner has never been subject to a sentence of life without the possibility of parole. At the time Petitioner was sentenced, an individual adjudged guilty of a capital felony in a case in which the State did not seek the death penalty received an automatic life sentence that permitted parole. TEX. PENAL CODE § 12.31(a) (1994)). And while subsequent amendments to that statute provided for the imposition of a sentence of life without parole for a capital offense committed by a defendant at least 17 years of age, in response to Miller, the Texas legislature amended section 12.31(a) to provide that "[a]n individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for: (1) life, if the individual committed the offense when younger than 18 years of age; or (2) life without parole, if the individual committed the offense when 18 years of age or older. TEX. PENAL CODE § 12.31(a) (2013)." Id.
That notwithstanding, Petitioner maintains that Miller "forbids a sentencing scheme that mandates life imprisonment for juvenile offenders who commit nonhomicidal offenses.
Petitioner also relies on Miller and 28 U.S.C. § 2244(d)(1)(C) and (D) to overcome the one-year limitations period since, otherwise, his federal petition is clearly untimely.
Likewise, since Miller does not apply, Petitioner cannot show that his successive application is based on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, as required by 28 U.S.C. § 2244(b)(2)(A).
Accordingly, it is ordered that the petition for writ of habeas corpus is
Considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing Section 2254 Proceedings in the United States District Court, and 28 U.S.C. § 2253(c), the Court prospectively