CA11: Carpenter not retroactive for a successor habeas

Carpenter not retroactive for a successor habeas. In re Symonette, 2019 U.S. App. LEXIS 20428 (11th Cir. July 9, 2019):

As to the merits of Symonette’s Carpenter claim, the Supreme Court ruled in that case that the government’s acquisition of cell-site location records constitutes a search under the Fourth Amendment, requiring the government to obtain a search warrant supported by probable cause before accessing cell-site location records. 138 S. Ct. at 2220-21. Importantly, that ruling was made in the context of a direct appeal. The Supreme Court, however, has not held that Carpenter is retroactively applicable to cases on collateral review, nor does any combination of cases necessarily dictate its retroactivity. See Tyler v. Cain, 533 U.S. 656, 661-66, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001) (holding that the retroactivity requirement “is satisfied only if [the Supreme Court] has held that the new rule is retroactively applicable to cases on collateral review” or if a combination of Supreme Court cases “necessarily dictate retroactivity of the new rule”); see generally Carpenter, 138 S. Ct. 2206, 201 L. Ed. 2d 507. Therefore, Symonette cannot rely on Carpenter as a new rule of constitutional law within the meaning of § 2255(h) which he must do before being permitted to file a second or successive § 2255 motion. See 28 U.S.C. § 2255(h)(2).

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