FILED

United States Court of Appeals

Tenth Circuit

April 23, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

JIMMY EUGENE RHODES,

Movant.

No. 10-6087

ORDER

Before KELLY, HARTZ, and GORSUCH, Circuit Judges.

A jury convicted Jimmy Eugene Rhodes of drug and firearms offenses, and

the district court sentenced him to 260 months’ imprisonment, apparently

pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e). Having

unsuccessfully sought relief from his convictions on direct appeal, see United

States v. Rhodes, 62 F. App’x 869 (10th Cir. 2003), and under 28 U.S.C. § 2255,

see United States v. Rhodes, 157 F. App’x 84 (10th Cir. 2005), Mr. Rhodes now

seeks authorization to file a second or successive § 2255 motion that would

challenge his classification as an armed career criminal. 

To proceed with a second or successive § 2255 motion, Mr. Rhodes must

show either “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

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offense,” 28 U.S.C. § 2255(h)(1), or “a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable,” id. § 2255(h)(2). Mr. Rhodes proceeds under the “new

law” prong, arguing that he does not qualify as an armed career criminal under

the principles of Johnson v. United States, 130 S. Ct. 1265 (2010), and Begay v.

United States, 553 U.S. 137 (2008). He concedes that the Supreme Court has not

held either Johnson or Begay to be applicable to cases on collateral review, but

argues that this court should be guided by the principles of Teague v. Lane,

489 U.S. 288 (1989), and declare them retroactively applicable.

The problem for Mr. Rhodes is that § 2255(h)(2) specifically requires that

the new rule be of “constitutional law” and that it be “made retroactive to cases

on collateral review by the Supreme Court” (emphasis added). Neither Johnson

nor Begay announces a rule of constitutional law; rather, both concern issues of

statutory interpretation. Moreover, the Supreme Court has not made either

decision retroactively applicable to cases on collateral review. Under

§ 2255(h)(2), “the Supreme Court is the only entity that can make a new rule

retroactive. The new rule becomes retroactive, not by the decisions of the lower

court or by the combined action of the Supreme Court and the lower courts, but

simply by the action of the Supreme Court.” Tyler v. Cain, 533 U.S. 656, 663

(2001) (quotation omitted). Silence is insufficient; “a new rule is not ‘made

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retroactive to cases on collateral review’ unless the Supreme Court holds it to be

retroactive.” Id. (quoting 28 U.S.C. § 2241(b)(2)(A)).

The motion for authorization is DENIED. This denial of authorization is

not 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).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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