PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

In re: 

RUFUS TAIWAN SHINES, 

 Movant. 

No. 12-6208 

(D.C. Nos. 5:12-CV-00414-R & 

5:10-CR-00272-R-1) 

(W.D. Okla.)

 

ORDER 

 

Before BRISCOE, Chief Judge, EBEL and HOLMES, Circuit Judges. 

PER CURIAM. 

 

 

 Rufus Taiwan Shines, a federal prisoner, moves through counsel for 

authorization to file a second or successive 28 U.S.C. § 2255 motion challenging his 

sentence. We deny authorization. 

Mr. Shines was convicted after a jury trial on one count of simple possession 

of 24.3 grams of a mixture containing cocaine base (i.e., crack cocaine), and one 

count of being a felon in possession of a firearm. His offenses occurred on March 2, 

2010, and his conviction occurred on October 26, 2010. He was sentenced on 

April 22, 2011, to 60 months’ imprisonment on each count, to run concurrently, and 

three years of supervised release on each count, also to run concurrently. According 

to Mr. Shines’s proposed § 2255 motion, his advisory sentencing range under the 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 18, 2012

Elisabeth A. Shumaker 

Clerk of Court
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United States Sentencing Guidelines for both offenses was 37-46 months, but his 

60-month sentence was based on the version of 21 U.S.C. § 844 in effect at the time 

of his offense, which mandated a five-year minimum sentence for a first conviction 

of simple possession of 5 grams or more of crack cocaine. Mr. Shines filed a direct 

appeal but voluntarily dismissed it. He later filed a § 2255 motion, which was 

denied, and he voluntarily dismissed an appeal from that denial. 

In his application for authorization, Mr. Shines relies on the Supreme Court’s 

recent decision in Dorsey v. United States, 132 S. Ct. 2321 (2012). In Dorsey, the 

Court held that “the Fair Sentencing Act’s new, lower mandatory minimums [for 

crack cocaine offenses] apply to the post-Act sentencing of pre-Act offenders.” 

132 S. Ct. at 2335. The Fair Sentencing Act (FSA) of 2010, Pub. L. No. 111-120, 

124 Stat. 2372, took effect August 3, 2010, which was after Mr. Shines’s offense but 

before his sentencing. In relevant part, the FSA eliminated the mandatory minimum 

five-year sentence that was applied to Mr. Shines. See § 3, 124 Stat. at 2372 (striking 

the sentence of § 844 that provided mandatory minimum sentences for simple 

possession of cocaine base); Dorsey, 132 S. Ct. at 2329 (“The Act also eliminated the 

5-year mandatory minimum for simple possession of crack.”). In his proposed 

§ 2255 motion, Mr. Shines states that the FSA reduced the punishment for simple 

possession, as applicable to him, to a mandatory minimum sentence of 15 days’ 

imprisonment and a maximum sentence of two years’ imprisonment. See 21 U.S.C. 

§ 844 (“Any person who violates this subsection may be sentenced to a term of 
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imprisonment of not more than 1 year, and shall be fined a minimum of $1,000, or 

both, except that if he commits such offense after a prior conviction under this 

subchapter or subchapter II of this chapter, or a prior conviction for any drug, 

narcotic, or chemical offense chargeable under the law of any State, has become 

final, he shall be sentenced to a term of imprisonment for not less than 15 days but 

not more than 2 years, and shall be fined a minimum of $2,500 . . . .”). Thus, the 

relief he seeks in his proposed § 2255 motion is for the district court to vacate his 

five-year sentence, resentence him consistent with the advisory range, and reduce his 

term of supervised release to one year in accordance with a revised statutory penalty. 

In order to file a second or successive § 2255 motion in the district court, 

Mr. Shines must first obtain our authorization. See 28 U.S.C. § 2255(h); id.

§ 2244(b)(3). This court may authorize a claim only if Mr. Shines makes a prima 

facie showing that the claim relies on (1) “newly discovered evidence that, if proven 

and viewed in light of the evidence as a whole, would be sufficient to establish by 

clear and convincing evidence that no reasonable factfinder would have found [him] 

guilty of the offense”; or (2) “a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was previously unavailable.” 

Id. § 2255(h); see also id. § 2244(b)(3)(C). 

Mr. Shines relies on § 2255(h)(2), claiming that Dorsey announced a new rule 

of law. However, Dorsey did not announce a new rule of constitutional law, as 

required by § 2255(h)(2). Instead, Dorsey concerned statutory interpretation. The 
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Court characterized the issue before it as follows: “The underlying question before 

us is one of congressional intent as revealed in the Fair Sentencing Act’s language, 

structure, and basic objectives. Did Congress intend the Act’s more lenient penalties 

to apply to pre-Act offenders sentenced after the Act took effect?” Dorsey, 

132 S. Ct. at 2326. And nothing in the Court’s analysis suggests a new rule of 

constitutional law. Because new statutory interpretations cannot be raised in a 

second or successive § 2255 motion, see Brace v. United States, 634 F.3d 1167, 1170 

(10th Cir. 2011), we DENY Mr. Shines’s motion for authorization. This denial of 

authorization “shall not be appealable and shall not be the subject of a petition for 

rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).