UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-31162 

 

IN RE: BILLY RAY TATUM,

Movant.

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Motion for an order authorizing

the United States District Court for the Western

District of Louisiana to consider

a successive 28 U.S.C. § 2255 motion

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November 15, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. 

BY THE COURT:

Billy Ray Tatum has filed a motion with us, seeking

authorization to file a successive 28 U.S.C. § 2255 motion in

district court to vacate, set aside, or correct his sentence.

Tatum proposes to argue in district court that his conviction and

sentence under 21 U.S.C. § 841 are unconstitutional because the

type and quantity of drugs he possessed are elements of the offense

and therefore should have been alleged in the indictment, presented

to a jury, and proved beyond a reasonable doubt. Tatum grounds his

assertions in the Supreme Court’s recent decision in Apprendi v.

New Jersey, 120 S. Ct. 2348, 2362-63 (2000). Tatum also cites

Castillo v. United States, 120 S. Ct. 2090 (2000), and Jones v.

United States, 526 U.S. 227 (1999), in support of his argument. We

deny his motion. 
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I

FACTS AND PROCEEDINGS

In 1992, Tatum was convicted pursuant to a guilty plea of (1)

possessing with the intent to distribute cocaine and cocaine base

in violation of 21 U.S.C. § 841(a)(1) and (2) of using and carrying

a firearm during a drug-trafficking offense in violation of 18

U.S.C. § 924(c). He was sentenced to 193 months’ and 22 days’

imprisonment for the possession offense and 60 months’ imprisonment

for the weapons offense, to run consecutively. Tatum did not file

a direct appeal.

Tatum filed his first motion for § 2255 relief on January 7,

1993. The district court denied Tatum’s motion and we affirmed

that denial. Tatum subsequently filed a number of § 2255 motions,

all of which were denied.

II

ANALYSIS

Before a successive 28 U.S.C. § 2255 motion may be filed in

district court, the movant must obtain authorization from this

court for the district court to consider the movant’s successive §

2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255. We may authorize

the filing of a successive § 2255 motion in the district court only

if the movant makes a prima facie showing to us that his claim

relies 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 him guilty of the underlying offense;
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or (2) a new rule of constitutional law that was previously

unavailable has been made retroactive by the Supreme Court to cases

on collateral review. 28 U.S.C. §§ 2244(b)(3)(C) and 2255; see

United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998). 

Tatum does not argue that any of his proposed claims are based

on newly discovered evidence. Rather, he contends that he is

entitled to file a successive § 2255 motion because his claims are

based on a new rule of constitutional law that the Supreme Court

has made retroactive to cases on collateral review.

The cases on which Tatum relies do not, however, set forth new

rules of constitutional law that the Supreme Court made retroactive

to cases on collateral review. In Jones, the Supreme Court

reviewed a federal car-jacking statute which provided increased

penalties if the car-jacking offense involved serious bodily injury

or death. The Court held that the statutory facts of serious

bodily injury or death are elements of the offense, not mere

sentencing factors. Jones, 526 U.S. at 229-30, 251-52. Jones was

decided largely on statutory construction grounds, and the Court

expressly stated that it was not announcing a rule of

constitutional law but was “merely interpret[ing] a particular

federal statute . . . .” Id. at 252 n.11. 

In Castillo, the Supreme Court interpreted 18 U.S.C.

§ 924(c)(1). The Court held that, by its references to particular

types of firearms, Congress intended to define a separate,

aggravated crime not simply to authorize an enhanced penalty.

Castillo, 120 S. Ct. at 2096. 
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In Apprendi, the Court confirmed its earlier holding in Jones

and held that “[o]ther than the fact of a prior conviction, any

fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi, 120 S. Ct. at 2362-63. 

Tatum cannot show that the holdings in any of the cases on

which he relies were made to apply retroactively on collateral

review by the Supreme Court. When seeking leave to file a

successive § 2255 motion on the basis of a new rule of

constitutional law, a movant “must point to a Supreme Court

decision that either expressly declares the collateral availability

of the rule . . . or applies the rule in a collateral proceeding.”

In re Smith, 142 F.3d 832, 835 (5th Cir. 1998)(internal quotation

marks and citation omitted). Apprendi, Castillo, and Jones did not

involve collateral proceedings. See Apprendi, 120 S. Ct. at

2352-54 (detailing procedural history); Castillo, 120 S. Ct. at

2091-92 (same); Jones, 526 U.S. at 229-32 (same). Neither has the

Court expressly stated that the holdings in any of those cases are

to be applied retroactively to cases on collateral review. Tatum

has not identified any Supreme Court opinion that makes those cases

apply retroactively on collateral review and we have failed to find

any on our own. 

Tatum has not met the statutory requirements for filing a

successive 28 U.S.C. § 2255 motion. His motion for authorization

to file a successive 28 U.S.C. § 2255 motion is therefore DENIED.