In re: Christopher Frank
UNPUBLISHED OPINION ORDER FILED. [17-30172 Affirmed] Judge: PRO, Judge: JWE, Judge: GJC; denying motion to file successive petition filed by Movant Mr. Christopher Frank [8440574-2]; denying motion for the appointment of a neuropsychological expert filed by Movant Mr. Christopher Frank [8440591-2] [17-30172]
Date Filed: 04/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
April 10, 2017
Lyle W. Cayce
In re: CHRISTOPHER FRANK,
Motion for an order authorizing
the United States District Court for the
Eastern District of Louisiana, New Orleans to consider
a successive 28 U.S.C. § 2255 motion
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Christopher Frank, federal prisoner # 01160-748, seeks authorization to
file a successive 28 U.S.C. § 2255 motion challenging his sentence to life
imprisonment for conspiring to distribute cocaine and cocaine base. A jury
convicted Frank of that offense and two firearms charges in 1999, and he
received a concurrent five-year prison sentence and a consecutive ten-year
prison sentence for the firearms offenses. His life sentence resulted from the
district court’s application of U.S.S.G. § 2A1.1 and the cross-reference found at
U.S.S.G. § 2D1.1; the district court found that various murders committed in
furtherance of the conspiracy constituted relevant conduct for purposes of
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Date Filed: 04/10/2017
Frank argues that authorization to file a successive § 2255 motion is
warranted in light of Miller v. Alabama, 132 S. Ct. 2455 (2012), which
established a new rule of constitutional law that was made retroactively
applicable to cases on collateral review in Montgomery v. Louisiana, 136 S. Ct.
718, 736–37 (2016).
He contends that Miller renders his life sentence
unconstitutional because (1) he was sentenced under a mandatory scheme to
life in prison without the possibility of parole; (2) he was a juvenile—between
the ages of 14 and 17—when four of the murders in question were allegedly
committed, and he was a “young adolescent”—ages 18 and 19—when the other
murders were committed; and (3) the district court did not make an
individualized sentencing decision. We will grant authorization if, as relevant
here, Frank makes a prima facie showing that his proposed claim relies on a
new rule of constitutional law that the Supreme Court has made retroactive to
cases on collateral review. § 2255(h)(2); see 28 U.S.C. § 2244(b)(2)(A), (3)(C).
Regardless of whether the guidelines-derived mandatory life sentence
fell within the Supreme Court’s limitations, Miller is unhelpful to Frank. The
relevant conduct that formed the basis for the cross-reference to § 2A1.1
included murders that occurred after he had attained age 18. Thus, Frank has
not demonstrated that Miller entitles him to authorization to file a successive
§ 2255 motion. See § 2255(h)(2).
Accordingly, IT IS ORDERED that the motion for authorization to file a
second or successive § 2255 motion is DENIED.
Frank’s motion for the
appointment of a neuropsychological expert is also DENIED.
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