IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10708

In re: CURTIS ONEAL RHINE,

Movant

Motion for an order authorizing

the United States District Court for the

Northern District of Texas, Fort Worth to consider

a successive 28 U.S.C. § 2255 motion

Before PRADO, ELROD, and HAYNES, Circuit Judges.

PER CURIAM:*

Curtis Oneal Rhine, federal prisoner # 36888-177, seeks authorization to 

file a successive 28 U.S.C. § 2255 motion to challenge his convictions and 

sentences for possession with intent to distribute cocaine base and possession 

of a firearm by a felon. If granted authorization, Rhine intends to argue that 

he was not convicted of any involvement in a certain drug trafficking ring and 

that the district court nonetheless used this involvement to enhance his 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2015

Lyle W. Cayce

Clerk

 

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No. 14-10708

sentence. Additionally, he seeks to argue that his counsel provided ineffective 

assistance by failing to file a motion to suppress.

This court may authorize the filing of a second or successive § 2255 

motion only if the movant makes a prima facie showing that his claims rely on 

either (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 the movant 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.” 

§ 2255(h); see also 28 U.S.C. § 2244(b)(3)(C). Rhine does not contend that his 

claims rely on newly discovered evidence. Instead, he argues that the Supreme 

Court established new rules of constitutional law in Alleyne v. United States, 

133 S. Ct. 2151 (2013), and in Descamps v. United States, 133 S. Ct. 2276 

(2013). 

In re Jackson makes clear that “[w]hen a movant relies on a new rule of 

constitutional law to make the showing required under § 2255(h)(2), he ‘must 

point to a Supreme Court decision that either expressly declares the collateral 

availability of the rule (such as by holding or stating that the particular rule 

upon which the petitioner seeks to rely is retroactively available on collateral 

review) or applies the rule in a collateral proceeding.’” No. 14-30805, ___ F.3d 

___, 2015 WL 127370, at *1 (5th Cir. Jan. 8, 2015) (per curiam) (quoting In re 

Smith, 142 F.3d 832, 835 (5th Cir. 1998), and citing In re Tatum, 233 F.3d 857, 

859 (5th Cir. 2000) (per curiam)). The Supreme Court has not made Alleyne

retroactively applicable to cases on collateral review. In re Kemper, 735 F.3d 

211, 212 (5th Cir. 2013) (per curiam). Likewise, Descamps has not been made 

retroactively applicable to cases on collateral review and “does not provide a 

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basis for [Rhine’s] successive § 2255 motion.” In re Jackson, 2015 WL 127370, 

at *3.

Accordingly, IT IS ORDERED that Rhine’s motion for authorization to 

file a successive § 2255 motion is DENIED.

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