PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.
KENNETH HOON, No. 14-8027 (D.C. Nos. 1:14-C V-00023-NDF and 2:05-CR-00270-WFD-2) (D. Wyo.) Defendant - Appellant.

ORDER

Before KELLY , ANDERSON , and BACHARACH , Circuit Judges.

Mr. Kenneth Hoon was convicted in federal court on drug charges and sentenced to 151 months’ imprisonment. After unsuccessfully appealing, Mr. Hoon filed a motion to vaca te the sentence under 28 U.S.C. § 2255, and the district court denied his motion as untimely. Mr. H oon seeks a certificate of appealability to appeal the district court’s or der, alleging reliance on Alleyne v. United States , __ U.S. __, 133 S. Ct. 2151 (2013 ). According to Mr. Hoon, Alleyne involved a new rule of constitutional law, crea ting an exception to the limitations period. Mr. Hoon’s argument would be rejected by any reasonable FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 jurist because it is grounde d on a misconception of § 2255. Thus, we decline to issue a certificate of appealab ility and dismiss the appeal. Standard for a Certificate of Appealability To appeal, Mr. Hoon needs a certif icate of appealab ility. 28 U.S.C. § 2253(c)(1)(B) (2012). To obtain the cert ificate, Mr. Hoon must show that reasonable jurists c ould find the district court’s decision on timeliness debatable
or wrong. See Laurson v. Leyba , 507 F.3d 1230, 1232 (10th Cir. 2007). Timeliness and 28 U.S.C. § 2255(f)(3) A one-year period of limita tions exists. 28 U.S. C. § 2255(f) (2012). This period ordinarily star ts when the convicti on became final. Id. § 2255(f)(1). Mr. Hoon’s conviction became fi nal 90 days after the term ination of his appeal. See United States v. Burch , 202 F.3d 1274, 1279 (10th Cir. 2000). Therefore, the limitations period would ordinarily ha ve started in Marc h 2008 and ended in March 2009. But the § 2255 moti on was not filed until 2014. Mr. Hoon seeks to avoid the limi tations bar by invoking 28 U.S.C. § 2255(f)(3) (2012). This provision appl ies when the mova nt relies on a constitutional rule newly recognized by the Supreme Court and made retroactively applicable to cases on collateral revi ew. 28 U.S.C. § 2255(f)(3) (2012).3 The Alleyne Decision
In Alleyne v. United States , the Supreme Court held that any fact that increases a mandatory minimum is an elemen t that must be decided by the jury. Alleyne v. United States , __ U.S. __, 133 S. Ct. 2151, 2155, 2163-64 (2013). By newly recognizing this constitutional right , the Supreme Court’ s decision satisfies part of § 2255(f)(3). See In re Payne , 733 F.3d 1027, 1029 ( 10th Cir. 2013). 1
But Mr. Hoon must also sati sfy the remaining requireme nt in § 2255(f)(3): the existence of a past holdi ng that the newly recognize d constitutional right is retroactively applicable to cases on collateral review. No court has treated Alleyne as retroactive to case s on collateral review. See United States v. Reyes , __ F.3d __, 2014 WL 2747216 (3d Cir. June 18, 2014) (to be published) (holding that Alleyne does not apply to cases on collateral review); In re Mazzio , __ F.3d __, 2014 WL 2853722, at *2-3 (6th Cir. June 24, 2014) (to be publishe d) (same holding); Susinka v. United States , __ F. Supp. 2d __, 2014 WL 1998242, at *8 (N.D. Ill. Ma y 14, 2014) (to be published) (same holding); Barrow v. United States , __ F. Supp. 2d __, 2013 WL 6869654, at *1, 5

1 In Payne , we addressed a statutory restrictio n on second or successive motions under § 2255. In re Payne , 733 F.3d 1027, 1029 (10th Cir. 2013). This restriction also involves reliance on a new constitutional rule made retroactive to cases on collateral review. 28 U.S.C. § 2255( h)(2) (2012). But the statutory restriction in Payne requires acknowledgment of retroactivity in a Supreme Court decision. Id. Unlike that restriction, § 2255(f)(3) does not expre ssly require a Supreme Court holding on retroactivity. See United States v. Sanders , 247 F.3d 139, 146 n.4 (4th Cir. 2001). We need not decide whether § 2255(f)(3) requires a Suprem e Court determination on retroactivity.4 (D. P.R. Nov. 21, 2013) (to be published) (same holding). As a result, the district court held that § 2255(f) (3) does not apply. This holding could not be questioned by any reason able jurist. Section 2255(f)(3) applies only if a new constitutiona l rule has been held applicable to cases on collateral review, and no court has treated Alleyne as retroactively applicable on collateral review. Thus, § 2255(f)(3) does not apply and all reasonable jurists would conc lude that the § 2255 motion was untimely. In these circumstances, we decline to issue a cert ificate of appealabil ity and dismiss the appeal. Entered for the Court

Robert E. Bacharach Circuit Judge