F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M A R C E L O N E H U G H E S , P etitioner
,

v

.

U N I T E D S T A T E S O F A M E R I C A , Respondent

. N o. 13-73278

OPI NI ON

Application to F ile Second or Successive Petition Under 28 U.S.C. § 2255

Arg ued and Submitted J uly 9, 2014—San F rancisco, California

F iled October 23, 2014

B e fore: N. Randy Smith and Morg an Christen, Circuit J udg es, and L awrence L

. Piersol, Senior District J udg e. *

Opinion by J udg e Christen

* T h e Ho n o rab le L aw

ren ce L

. Pierso l, Sen i o r District J u d g e f o r th e U .S. District Co u

rt f o r th e District o f

So u th Dak o ta, sittin g b y

d esig n atio n

.H U G H E S V

. U N I T E D S T A T E S 2

SUMMARY * *

Habeas Corpus

The pan e l d e nied a federal offender’s application for an order authoriz ing h im to f i l e a second or successive motion under 28 U.S.C. § 2255 to vacate his sentence.

The panel held that the S u p r e me Court has not made Alleyne v. United States
, 133 S. Ct. 2151 (2013) (holding that
any fact that increases the mandatory minimum is an element that must be submitted t o t h e jury ), retroactive to cases on collateral review.

COUNSEL

Quin Anthony Den v i r ( arg u ed), Attorney at L aw, Davis, California, for Petitioner.

Dawrence Way

ne Ri c e , J r

. (arg

ued), O ffice of the United States Attorney , F r esno, California, for Respondent.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.H U G H E S V

. U N I T E D S T A T E S 3

OP INION

CHRI STEN, Circuit J udg e:

Marcelone Hug hes applies fo r an order g ranting him authoriz ation to file a second or successive habeas c o r pus motion to vacate his sentence. Hug hes arg ues that Alleyne v

. United States
, 133 S. Ct. 2151 (2013), created “a n ew rule o f constitutiona l l a w, made retroactive to cases on collateral review by the Supreme Court, that was previo u s l y unavail a b l e. ” 28 U.S.C. § 2255(h)(2). This is an issue o f first impression in th e N i n t h Circuit. W e have jurisdiction under 2 8 U.S.C. §§ 2244(b) & 2255(h). W e join our sister circuits in concluding that the Supreme Cour t has not made Alleyne retroactive to cases on collateral review, and we deny the application.

BACK G ROUND

Hug hes was i n d i c ted in October 2 002 for brandishing a firearm during a crime of violence, in violation of 18 U .S.C. § 9 24(c)(1). I n J uly 2003, a jury c onvicted him o f that offense. The statutory penalty for brandi s h i n g a firearm during a crime of violence i s a t erm of imprisonment of not less than seven y ears. Id. § 924(c)(1)(A)(ii). The mandatory minimum sentence increases to ten y ears if a semi-automatic assault weapon is used. Id. § 924(c)(1)(B )(i).

At Hug hes’s March 2 004 sentencing hearing

, the district court, over an o b

j e c t i o n from Hug hes’s counsel, made a finding that Hug hes brandished a semi-automatic assault
weapon. The court imposed the ten-y ear mandatory minimum sentence. I n doing so, the d i s t r i c t court relied on Harris v. United States
, 536 U.S. 5 45 (2002), which allowedH U G H E S V

. U N I T E D S T A T E S 4

judg es to make factu a l f i n ding s at the time of sentencing based on a preponderance of the evidence.

Hug hes a ppealed the d istrict court’s finding and sentence, but our c ourt affirmed the d istrict court’s ruling

, citing Harris

. U

n i t ed States v. Hughes

, 1 78 F ed. App’x

. 703, 705–06 (9th Cir. 2006). Hu gh e s then f iled a motion under 28 U.S.C. § 2255 seeking to collaterally attack the judg ment. He a rg ued that the nature of t h e firearm had been neither found by the jury nor established bey ond a reasonable doubt. Ag ain r ely ing on Harris
, the district court denied the motion. Hughes v. United S t a t e s , 2 008 U.S. Dist. L EXI S 118361 at *13–18 (E.D. Cal. Aug . 7, 2008).

I n 2013, the Supreme Court o verruled Harris in Alleyne. Alleyne , 133 S. Ct. at 2155. The Court held:

Any f act that, by law, increases the penalty for

a crime is an “ element” that must be submitted to the jury a n d f ound b e y ond a reasonable doubt. Mandatory minimum
sentences increase the p enalty for a crime. I t follo w s , then, that any fact that increases the mandatory minimum is an “el ement” that must be submitted to the jury

.

Id. Alleyne relie d o n Apprendi v. New Jersey
, 530 U.S. 466 (2000), which established that “[ o ] ther than the fact o f a prior conviction, a n y f

act that increases the penalty for a crime bey ond the prescribed statutory max imum must b e submitted
to a jury

, and proved bey ond a reasonable doubt.” Id. a t 490; Alleyne

, 133 S. Ct. at 2168. Alleyne r easoned that “there is no basis in principle or log ic to disting uish facts that raise the

max imum from those that increase the minimum.” 1 33 S. Ct.H U G H E S V

. U N I T E D S T A T E S 5

at 2163. The Court resolved Alleyne on direct review and did
not declare that its holding should be applied retroactively on collateral attack. See id

. at 2155 (describing procedu ra l history ).

Soon after Alleyne was decided, Hug hes file d a pro se application in this court for permission to fil e a s e c ond o r successive § 2255 motion. Our court appointed cou n sel for Hug hes a

nd ordered that counsel f ile a supplemental application for authoriz ation to f i le a second or successive § 2255 motion. Th e supplemental application arg ues that Hug hes’s “F ifth an d S ix th Amendment rig hts were v iolated when the finding as to the nature of the firearm was made b y

a preponderance of the evidence, not bey ond a reasonable doubt.”

D ISCUSSION

The An titerrorism and Effective Death Penalty A ct limited the a

bility of federal c ourts to g rant relief to prisoners who file second or successive h abeas cor p u s a pplications. See Tyler v. Cain
, 533 U.S. 656, 661 (2001). B efore a second

or successive application may be filed in the district court, it “must be certified as p r o v i d e d in section 2244 by a panel o f the appr o p r iate court of appeals to contain

. . . a new rule o f constitutional law, m a d e retroactive to cases on collateral review by the Supreme Court, th a t was previously unavailable.” 28 U.S.C. § 2 25 5 ( h ). “The court of appeals
may authoriz e the filing of a second or successive a pplication only if it determines that the application makes a prima facie showing that the application satisfies the requirements o f this subsection.” Id. § 2244(b)(3)(C).H U G H E S V

. U N I T E D S T A T E S 6

The Suprem e Court has not m ade Alleyne retroactive to cases on collateral review

.

After Alleyne

, the district court could not have i m p osed three additional y ears of jail time on a d efendant’s sentence based o n its own finding that a p reponderance o f the evidence showed the defendant brandished a sem i

- a utomatic weapon during the commission of a crime of violence. The question here is whether Hug hes can obtain relief by apply ing the rule from Alleyne retroactively

.

The g eneral rule is that “new constitutional r u l e s o f criminal procedure wi l l n o t be applicable to those cases which have become final b efore the new rules a re announced.” Teague v

. L a ne , 489 U.S. 288, 310 (1989). “[ A] new rule i s n o t ‘made retroactive to cases on collateral review’ u nless the Supreme Court holds it to be retroactive.” Tyler

, 533 U.S. at 663. The Court can establish that a holding

a pplies r etroactively either ex pressly or throug h the combination o f the h olding s from multiple c a ses. Id. at 663–68. T he Supreme Court did not ex p ressly make the rule in Alleyne retroactive, but Hug h e s arg ues that the rule was made retroactive throug

h multiple holding s.

The Court has set a hig h bar f o r a p ply ing rules retroactively throug h multiple holding s. “Multiple c ases can render a new rule r e t roactive only if the holding s in those

cases necessarily dictate retroactivity of the new rule.” Id. at 666 (emphasis added). The Court “can b e said to have ‘made’ a r

ule retroactive within the mea n i ng o f § 2244(b)(2)(A) only where the Court’s holding s lo gi c ally permit n o o t h er conclusion than that the rule is retroactive.” Id. at 669 (O’Connor, J ., concurring ).H U G H E S V

. U N I T E D S T A T E S 7

A rule can be made retroactive throug h multiple cases if it falls within one of two narrow e x c e p t ions to the g eneral rule of nonretroactivity set out in Teague

. Tyler

, 533 U.S. at 6 6 5 (citing Teague
, 489 U.S. at 311–13). Those ex cept i o n s

are: “(1) [ if

] t h e r u l e is substantive or (2) [ if] the rule is a watershed r u l [ e] of c riminal procedure implicating the fundamental fairness and accuracy of the crim inal proceeding

. ” W

horton v. Bockting

, 549 U.S. 406, 416 (2007) (third alteration in orig inal) (inter n a l quotation marks a nd citations omitted). Only the second, procedural, ex ception is
at issue here because Alleyne announced a proce d u r a l rule. See A l l e y ne , 133 S. Ct. a t 2 164 (Sotomay or, J
., concurring ) (ex plaining that in Alleyne “ proced u r a l rules [ were] at issue that do not g overn prima r y conduct”). This is important because:

N ew rules of procedure

. . . g enerally do n o t apply retroactively

. They do no t produce a class of persons convicted of conduct the law does not make criminal [i.e., the first Teague

ex c eption]

, but merely raise the possibility that someone convi cted with use of the invalidated pr o cedure mig ht have been acquitted otherwise.

Schriro v. Summerlin

, 542 U.S. 348, 352 (2004). Moreover, the Sup reme Court has said “the rule must be one without which the likel i h o o d o f an accurate c onviction is seriously diminished. This c lass of rules is ex tremely narrow, and it is

un l i kely that any

. . . ha[ s] y et to emerg e .” Id. (alteration in orig inal) (internal quotation marks and citations omitted). I n

o t her words, the Court has raised the bar even hig h er f o r watershed procedural rules.H U G H E S V

. U N I T E D S T A T E S 8

Despite the Supreme Court’s direction tha t this class o f rules will be ex tremely limited, Hug hes arg ues the “Court has made all new reasonable-doubt rules completely retroactive, [ and] Alleyne is a n ew reasonable-doubt rule.” He cites the Court’s holding s in Ivan V. v. City of New Y ork

, 407 U.S. 203 (1972), and H

ankerson v. North Carolina

, 43 2 U

. S

. 233 (1977), which, he arg ues, “necessarily dictate[ ]” that the rule announced in

Alleyne is retroactive. Ivan V. a nd Hankerson held, respect i vely

, that the Court’s decisions in two other
cases, I n re W inship

, 397 U.S. 358 ( 1970), and M u l l a n e y v

. W ilbur

, 421 U.S. 684 (1975), applied retroactively

. I van V

. , 407 U.S. a t 204–05; Hankerson

, 432 U.S. at 242–44. This is important, according to Hug h es, because in Apprendi v. New Jersey the Court ex plicitly relied on the rationale in W inship and Mullaney “in holding that any f a ct that increased the penalty bey ond the statutor y m a x imum had to be proved bey ond a reasonable doubt.”

Hug hes’s arg ument fails because he has not clea r e d t h e hi gh b ar to establish that Supreme Court p recedent “necessarily dictate[ s] ” the r etroactivity of Al leyne

. Tyler

, 533 U.S. at 66 6

. W e reach this conclusion for several

reasons. F irst, the Supreme Court indicat ed that Alleyne simply ex tended Apprendi ’s reasoning

, noting that “the principle a

pplied in Apprendi applies with equal force to facts increasing the mandatory minimum

. ” Alleyne

, 133 S. Ct. at 2160. I f A

pprendi

, which relied on W inship an d Mullaney

, does not apply retroactively

, then a case ex tending Apprendi should not apply r etroactively based on those sa m e cases. Every circuit court to address whether A p p r endi applies retroactively

, including this court in United States v

. Sanchez-H U G H E S V

. U N I T E D S T A T E S 9

Cervantes
, 282 F .3d 6 64 (9th Cir. 2002), has held that it does
not. 1

Second, we conclude that Alleyne

, like Apprendi

, does not fall within the procedur a l “watershed” ex ception. As the S u preme Court noted, “[ t] his c lass of rules is ex tremely
narrow, and it is u n l i k e l y t hat any

. . . h a[ s] y et to emerg e.” Summerlin

, 542 U.S. at 352 (second alteration in o r i g inal) (internal quotation marks and c itations o mitted). Consistent with the reasoning i n S

u mm e rlin

, all of our sister circuits to have c onsidered whether Alleyne falls w ithin th e watershed

ex c e ption h ave held that it does not. See In re Mazzio
, 2014 U.S. App. L EXI S 11839
, at *9–10 ( 6th Cir. J une 2 4, 2 014) (“ Alleyne

. . . does not mee t t h e hig h standard for n ew rules of criminal p rocedure.”); United States v. Reyes
, 755 F .3d 210, 212 (3d Cir. 2 0 14) (“ A lleyne a n n ounced no ‘watershed rule’ of criminal procedure.

. . . [ E] very court to consider the issue h as concluded that Alleyne pro vides only a limited

m o dification to the Six th Amendment rule announced in Apprendi

. ”) (citations omitted); United States v

. R edd

, 735 F .3d 88, 91 (2d Cir. 2013) (“ Alleyne [ does not] fall[ ] within” the w atershed ex c eption). 2 This is unsurprising g iven

1 See Un i ted Sta tes v. S

win to n , 3 33 F.3 d 4 8 1 (3 d Cir. 2 0 0 3 ); S ep ulved a v. Un ited S ta tes , 3 3 0 F.3 d 5 5 (1 st Cir. 2 0 0 3); Co lema n v. Un ited S ta tes , 3 2 9 F.3 d 7 7 (2 d C ir. 2 0 03 ); U n ited S ta tes v. Bro wn , 3 0 5 F.3 d 3 04 (5 th Cir. 2 0 0 2 ); Cu rtis v. Un ited S ta tes , 2 9 4 F.3 d 8 4 1 (7 th Cir. 2 0 0 2 ); Un ited S ta tes

v. M o ra , 2 9 3 F.3 d 1 2 1 3 (1 0 th Cir. 2 00 2 ); Go o d e v. Un ited S ta tes , 3 0 5 F.3 d 3 78 (6 t h Cir. 20 0 2 ); McCo y v. Un ited S ta tes , 2 66 F .3 d 1 2 4 5 (1 1 th Cir. 2 0 0 1 ); Un ited S ta tes v. Mo ss , 2 52 F.3 d 9 9 3 (8 th Cir. 20 0 1 ); Un ited S ta tes v. S

a n d ers , 2 4 7 F.3 d 1 3 9 (4 th

Cir. 2 0 0 1 ).

2 A dd i t i o n ally

, sev eral o t h er circu it co u rts h av e ru led —w ith o u t sp ecif ically d iscu s s i n g th e w atersh ed ex cep tio n —th at Alleyn e d o es n o t ap p ly retro activ ely o n co llateral rev iew

. S ee In re Mo ss , 2 0 13 U.S. A p p

.H U G H E S V

. U N I T E D S T A T E S 10

that every circuit court to have considered whether Apprendi falls within t h e w atershed ex ception, including our c ourt in United S t a t es v. Sanchez-Cervantes

, has held it does not. 3 Sanchez-Cervantes rejecte d arg uments similar to those Hugh es m a kes here, n oting that “ not every ex tension o f W inship is necessarily a watershed rule of criminal procedure. The rules announced in W inship and Mullaney were g iven retroactive e ffect because they were to ‘overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions a bout the accuracy o f
g uilty v erd i ct s[ .] ’” 2 82 F .3d a t 671 ( alteration in orig inal) (quoting Hankerson

, 432 U.S at 243). Here, a jury convicted Hug hes of brandishing a g un during a crime of violence. The
accuracy o f t he g uilty verdict was not substantially undermined b y the court’s fi n ding concerning the ty pe o f weapon used.

Hug hes has not established that Ivan V. and Ha n k e r son “necessarily dictate” that Alleyne applies retroactively

. Tyler

, 533 U.S. at 666. T he Supreme Court did n o t m a k e Alleyne

ex p ressly retroactive, and H ug hes has not shown that it was made retroactive by multiple Supreme Court holding s. A s such, we need not consider whether Alleyne announced a new rule of law that was previously unavailable.

L EXIS 2 61 2 5 , * 3 (1 1 th

Cir. Oct. 2 3
, 2 0 13 ); In re Pa yn e , 7 33 F.3 d 1 0 2 7 (1 0 th Cir. 2 0 1 3 ); In re Kemp er , 7 3 5 F.3 d 2 1 1 (5 th Cir. 2 0 1 3).

3 S ee S w in to n , 3 3 3 F.3 d at 4 9 0 ; S e p u l v e da

, 3 3 0 F.3 d at 6 1 ; C o lema n , 3 2 9 F.3 d at 8 9 ; Bro wn , 3 0 5 F.3 d at 3 0 7– 10 ; Cu rtis
, 2 9 4 F.3 d at 8 43

– 44 ; Mo ra , 2 9 3 F.3 d at 1 2 1 8

– 1 9 ; Go o de

, 3 0 5 F.3 d at 3 8 2

– 8 5 ; McCo y , 2 66 F.3 d at 1 2 5 7

– 58 ; Mo ss , 2 5 2 F.3 d at 9 9 7 ; S a nd ers , 2 47 F.3 d at 1 5 1

.H U G H E S V

. U N I T E D S T A T E S 11

CONCLUSION

W e D ENY Hug hes’s application to file a second o r successive § 2255 motion collaterally a ttacking the judg ment entered in his case.