Antonio Lebaron MELTON, Petitioner-Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee, 778 F.3d 1234

WILLIAM PRYOR, Circuit Judge: Antonio Melton moves to amend his motion to reconsider his application for a certificate of appealability to include two new issues: (1) whether the Supreme Court of Florida unreasonably applied clearly established federal law when it decided that Melton’s prior conviction as a juvenile could be used as an aggravating factor in his capital trial; and (2) whether the Supreme Court of Florida unreasonably applied clearly established federal law when it denied Melton relief without considering his “mental and emotional age.” Because neither issue is debatable, we deny Melton’s motion.

I. BACKGROUND A Florida jury convicted Melton of armed robbery and first-degree felony murder for shooting George Carter during a robbery of Carter’s pawn shop. Melton v. State, 949 So.2d 994, 1000 (Fla.2006). The jury recommended a sentence of death, and the trial judge imposed that sentence. Id. Melton was 18 years, 25 days old when he committed the crime. The trial judge found as an aggravating factor that Melton was previously convicted of first-degree felony murder. Id. Melton committed that murder when he was 17 years old.

Melton sought postconviction relief from the Supreme Court of Florida, which denied Melton relief. Id. at 1015-16, 1021. Melton then filed a federal petition for a writ of habeas corpus, 28 U.S.C. § 2254. He argued that, under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), the state courts violated his rights under the Eighth Amendment when they relied on a juvenile conviction as an aggravating factor in a capital case and when they failed to consider his “mental and emotional age.” The district court denied the petition and refused to grant a certifícate of appealability.

Melton moved our Court to grant him a certificate of appealability, and we denied his motion. Melton moved that we reconsider his request for a certificate of appealability to include as new issues his arguments based on Roper. II. STANDARD OF REVIEW A petitioner seeking a certificate of appealability must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). A petitioner seeking a certificate “must prove something more than the absence of frivolity or the existence of mere good faith on his ... part.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 1040, 154 L.Ed.2d 931 (2003) (internal quotation marks and citation omitted). “We look to the District Court’s application of [the Antiterrorism and Effective Death Penalty Act] to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason.” Id. at 336, 123 S.Ct. at 1039. III.

DISCUSSION In his motion to amend, Melton asks us to grant a certificate of appealability on two new issues, each based on Roper v. Simmons, where the Supreme Court of the United States held that a state cannot execute a convict who committed his capital crime before he turned 18 years of age. 543 U.S. at 578, 125 S.Ct. at 1200. First, Melton argues that the Supreme Court of Florida erred because it refused to grant him a new trial even though the trial court found an aggravating factor that was based on a conviction for murder that Melton committed when he was 17 years old.

Second, Melton argues that, although he was 18 years old when he committed the capital offense, his “mental and emotional age” was younger, and he should not be subject to the death penalty for committing a crime with a “mental and emotional age” below 18 years old. Melton fails to satisfy the requirements for a certificate of appealability.

When we review a request for a certificate of appealability, we ask whether, in the light of the deference granted to state courts by the Antiterrorism and Effective Death Penalty Act, “ ‘reasonable jurists would find the district court’s assessment of the constitutional claims debatable.’ ” Cockrell, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604).

Because Melton argues that the Supreme Court of Florida failed to apply Roper, he must establish that it is debatable whether the Supreme Court of Florida unreasonably applied clearly established federal law, 28 U.S.C. § 2254(d)(1). And the Supreme Court of Florida unreasonably applied clearly established federal law only if there “is no possibility fairminded jurists could disagree that the state court’s decision conflicts with” precedents of the Supreme Court of the United States. Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011).

Melton must establish that reasonable jurists could debate whether no fairminded jurist could come to the conclusions of the Supreme Court of Florida. Melton cannot satisfy that burden under either of his legal theories. We discuss each in turn.

First, Melton fails to establish that there is a debatable question about whether the Supreme Court of Florida unreasonably applied clearly established federal law when it decided that “nowhere did the Supreme Court [of the United States] extend [Roper] to prohibit the use of prior felonies committed [as a minor] ... as an aggravating circumstance during the penalty phase.” Melton, 949 So.2d at 1020. Roper prohibits only the imposition of the death penalty on a defendant who committed the capital crime' when he was younger than 18 years old. 543 U.S. at 578, 125 S.Ct. at 1200.

The Court in Roper did not consider the use of prior convictions as aggravating factors. Nor has Melton pointed to any other Supreme Court precedent that even suggests that a prior conviction from youth may not form the basis for an aggravating factor in a capital case. Because “clearly established Federal law” consists of only Supreme Court precedent, 28 U.S.C. § 2254(d)(1), it is not debatable whether the Supreme Court of Florida violated any such law.

Second, Melton fails to establish a debatable question about whether the Supreme Court of Florida violated clearly established federal law when it did not consider Melton’s “mental and emotional age” in the light of Roper. Melton argues that several of the factors considered relevant in Roper — for instance, a lack of maturity and susceptibility to peer pressure — • were present here. Even though Melton was over the age of 18 at the time he committed his capital offense, he argues that his sentence was invalid because some of the factors of youth were still present when he committed the crime.

But the Supreme Court of the United States recognized that “[d]rawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules,” as the “qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” and nevertheless held that “a line must be drawn.” Roper, 543 U.S. at 574, 125 S.Ct. at 1197-98. Whatever one thinks of the abstract legal question about “mental and emotional age,” we cannot say that it is debatable whether the Supreme Court of Florida unreasonably applied clearly established federal law.

The Supreme Court of the United States has not decided the issue, and dicta from the most relevant decision suggest that the Supreme Court of Florida was correct in its resolution of the issue. It is not “debatable amongst jurists of reason,” Cockrell, 537 U.S. at 336, 123 S.Ct. at 1039, whether the Supreme Court of Florida “unreasonably] applied] ... clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d). IV. CONCLUSION Melton’s motion for reconsideration is DENIED.