FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCELONE HUGHES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

No. 13-73278

OPINION

Application to File Second or Successive

Petition Under 28 U.S.C. § 2255

Argued and Submitted

July 9, 2014—San Francisco, California

Filed October 23, 2014

Before: N. Randy Smith and Morgan Christen, Circuit

Judges, and Lawrence L. Piersol, Senior District Judge.*

Opinion by Judge Christen

* The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.

District Court for the District of South Dakota, sitting by designation.
2 HUGHES V. UNITED STATES

SUMMARY**

Habeas Corpus

The panel denied a federal offender’s application for an

order authorizing him to file a second or successive motion

under 28 U.S.C. § 2255 to vacate his sentence.

The panel held that the Supreme 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 to the jury), retroactive to cases on

collateral review.

COUNSEL

Quin Anthony Denvir (argued), Attorney at Law, Davis,

California, for Petitioner.

Dawrence Wayne Rice, Jr. (argued), Office of the United

States Attorney, Fresno, California, for Respondent.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
HUGHES V. UNITED STATES 3

OPINION

CHRISTEN, Circuit Judge:

Marcelone Hughes applies for an order granting him

authorization to file a second or successive habeas corpus

motion to vacate his sentence. Hughes argues that Alleyne v.

United States, 133 S. Ct. 2151 (2013), created “a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h)(2). This is an issue of

first impression in the Ninth Circuit. We have jurisdiction

under 28 U.S.C. §§ 2244(b) & 2255(h). We join our sister

circuits in concluding that the Supreme Court has not made

Alleyne retroactive to cases on collateral review, and we deny

the application.

BACKGROUND

Hughes was indicted in October 2002 for brandishing a

firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1). In July 2003, a jury convicted him of that

offense. The statutory penalty for brandishing a firearm

during a crime of violence is a term of imprisonment of not

less than seven years. Id. § 924(c)(1)(A)(ii). The mandatory

minimum sentence increases to ten years if a semi-automatic

assault weapon is used. Id. § 924(c)(1)(B)(i).

At Hughes’s March 2004 sentencing hearing, the district

court, over an objection from Hughes’s counsel, made a

finding that Hughes brandished a semi-automatic assault

weapon. The court imposed the ten-year mandatory

minimum sentence. In doing so, the district court relied on

Harris v. United States, 536 U.S. 545 (2002), which allowed
4 HUGHES V. UNITED STATES

judges to make factual findings at the time of sentencing

based on a preponderance of the evidence.

Hughes appealed the district court’s finding and sentence,

but our court affirmed the district court’s ruling, citing

Harris. United States v. Hughes, 178 Fed. App’x. 703,

705–06 (9th Cir. 2006). Hughes then filed a motion under

28 U.S.C. § 2255 seeking to collaterally attack the judgment. 

He argued that the nature of the firearm had been neither

found by the jury nor established beyond a reasonable doubt. 

Again relying on Harris, the district court denied the motion. 

Hughes v. United States, 2008 U.S. Dist. LEXIS 118361 at

*13–18 (E.D. Cal. Aug. 7, 2008).

In 2013, the Supreme Court overruled Harris in Alleyne.

Alleyne, 133 S. Ct. at 2155. The Court held:

Any fact that, by law, increases the penalty for

a crime is an “element” that must be

submitted to the jury and found beyond a

reasonable doubt. Mandatory minimum

sentences increase the penalty for a crime. It

follows, then, that any fact that increases the

mandatory minimum is an “element” that

must be submitted to the jury.

Id. Alleyne relied on Apprendi v. New Jersey, 530 U.S. 466

(2000), which established 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.” Id. at 490;

Alleyne, 133 S. Ct. at 2168. Alleyne reasoned that “there is no

basis in principle or logic to distinguish facts that raise the

maximum from those that increase the minimum.” 133 S. Ct.
HUGHES V. UNITED STATES 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 procedural

history).

Soon after Alleyne was decided, Hughes filed a pro se

application in this court for permission to file a second or

successive § 2255 motion. Our court appointed counsel for

Hughes and ordered that counsel file a supplemental

application for authorization to file a second or successive

§ 2255 motion. The supplemental application argues that

Hughes’s “Fifth and Sixth Amendment rights were violated

when the finding as to the nature of the firearm was made by

a preponderance of the evidence, not beyond a reasonable

doubt.”

DISCUSSION

The Antiterrorism and Effective Death Penalty Act

limited the ability of federal courts to grant relief to prisoners

who file second or successive habeas corpus applications. 

See Tyler v. Cain, 533 U.S. 656, 661 (2001). Before a second

or successive application may be filed in the district court, it

“must be certified as provided in section 2244 by a panel of

the appropriate court of appeals to contain . . . a new rule of

constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously

unavailable.” 28 U.S.C. § 2255(h). “The court of appeals

may authorize the filing of a second or successive application

only if it determines that the application makes a prima facie

showing that the application satisfies the requirements of this

subsection.” Id. § 2244(b)(3)(C).
6 HUGHES V. UNITED STATES

The Supreme Court has not made Alleyne

retroactive to cases on collateral review.

After Alleyne, the district court could not have imposed

three additional years of jail time on a defendant’s sentence

based on its own finding that a preponderance of the evidence

showed the defendant brandished a semi-automatic weapon

during the commission of a crime of violence. The question

here is whether Hughes can obtain relief by applying the rule

from Alleyne retroactively.

The general rule is that “new constitutional rules of

criminal procedure will not be applicable to those cases

which have become final before the new rules are

announced.” Teague v. Lane, 489 U.S. 288, 310 (1989). 

“[A] new rule is not ‘made retroactive to cases on collateral

review’ unless the Supreme Court holds it to be retroactive.” 

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

applies retroactively either expressly or through the

combination of the holdings from multiple cases. Id. at

663–68. The Supreme Court did not expressly make the rule

in Alleyne retroactive, but Hughes argues that the rule was

made retroactive through multiple holdings.

The Court has set a high bar for applying rules

retroactively through multiple holdings. “Multiple cases can

render a new rule retroactive only if the holdings in those

cases necessarily dictate retroactivity of the new rule.” Id. at

666 (emphasis added). The Court “can be said to have

‘made’ a rule retroactive within the meaning of

§ 2244(b)(2)(A) only where the Court’s holdings logically

permit no other conclusion than that the rule is retroactive.” 

Id. at 669 (O’Connor, J., concurring).
HUGHES V. UNITED STATES 7

A rule can be made retroactive through multiple cases if

it falls within one of two narrow exceptions to the general

rule of nonretroactivity set out in Teague. Tyler, 533 U.S. at

665 (citing Teague, 489 U.S. at 311–13). Those exceptions

are: “(1) [if] the rule is substantive or (2) [if] the rule is a

watershed rul[e] of criminal procedure implicating the

fundamental fairness and accuracy of the criminal

proceeding.” Whorton v. Bockting, 549 U.S. 406, 416 (2007)

(third alteration in original) (internal quotation marks and

citations omitted). Only the second, procedural, exception is

at issue here because Alleyne announced a procedural rule. 

See Alleyne, 133 S. Ct. at 2164 (Sotomayor, J., concurring)

(explaining that in Alleyne “procedural rules [were] at issue

that do not govern primary conduct”). This is important

because:

New rules of procedure . . . generally do not

apply retroactively. They do not produce a

class of persons convicted of conduct the law

does not make criminal [i.e., the first Teague

exception], but merely raise the possibility

that someone convicted with use of the

invalidated procedure might have been

acquitted otherwise.

Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Moreover,

the Supreme Court has said “the rule must be one without

which the likelihood of an accurate conviction is seriously

diminished. This class of rules is extremely narrow, and it is

unlikely that any . . . ha[s] yet to emerge.” Id. (alteration in

original) (internal quotation marks and citations omitted). In

other words, the Court has raised the bar even higher for

watershed procedural rules.
8 HUGHES V. UNITED STATES

Despite the Supreme Court’s direction that this class of

rules will be extremely limited, Hughes argues the “Court has

made all new reasonable-doubt rules completely retroactive,

[and] Alleyne is a new reasonable-doubt rule.” He cites the

Court’s holdings in Ivan V. v. City of New York, 407 U.S. 203

(1972), and Hankerson v. North Carolina, 432 U.S. 233

(1977), which, he argues, “necessarily dictate[]” that the rule

announced in Alleyne is retroactive. Ivan V. and Hankerson

held, respectively, that the Court’s decisions in two other

cases, In re Winship, 397 U.S. 358 (1970), and Mullaney v.

Wilbur, 421 U.S. 684 (1975), applied retroactively. Ivan V.,

407 U.S. at 204–05; Hankerson, 432 U.S. at 242–44. This is

important, according to Hughes, because in Apprendi v. New

Jersey the Court explicitly relied on the rationale in Winship

and Mullaney “in holding that any fact that increased the

penalty beyond the statutory maximum had to be proved

beyond a reasonable doubt.”

Hughes’s argument fails because he has not cleared the

high bar to establish that Supreme Court precedent

“necessarily dictate[s]” the retroactivity of Alleyne. Tyler,

533 U.S. at 666. We reach this conclusion for several

reasons. First, the Supreme Court indicated that Alleyne

simply extended Apprendi’s reasoning, noting that “the

principle applied in Apprendi applies with equal force to facts

increasing the mandatory minimum.” Alleyne, 133 S. Ct. at

2160. If Apprendi, which relied on Winship and Mullaney,

does not apply retroactively, then a case extending Apprendi

should not apply retroactively based on those same cases. 

Every circuit court to address whether Apprendi applies

retroactively, including this court in United States v. Sanchez-
HUGHES V. UNITED STATES 9

Cervantes, 282 F.3d 664 (9th Cir. 2002), has held that it does

not.1

Second, we conclude that Alleyne, like Apprendi, does not

fall within the procedural “watershed” exception. As the

Supreme Court noted, “[t]his class of rules is extremely

narrow, and it is unlikely that any . . . ha[s] yet to emerge.” 

Summerlin, 542 U.S. at 352 (second alteration in original)

(internal quotation marks and citations omitted). Consistent

with the reasoning in Summerlin, all of our sister circuits to

have considered whether Alleyne falls within the watershed

exception have held that it does not. See In re Mazzio, 2014

U.S. App. LEXIS 11839, at *9–10 (6th Cir. June 24, 2014)

(“Alleyne . . . does not meet the high standard for new rules

of criminal procedure.”); United States v. Reyes, 755 F.3d

210, 212 (3d Cir. 2014) (“Alleyne announced no ‘watershed

rule’ of criminal procedure. . . . [E]very court to consider the

issue has concluded that Alleyne provides only a limited

modification to the Sixth Amendment rule announced in

Apprendi.”) (citations omitted); United States v. Redd,

735 F.3d 88, 91 (2d Cir. 2013) (“Alleyne [does not] fall[]

within” the watershed exception).2 This is unsurprising given

1

See United States v. Swinton, 333 F.3d 481 (3d Cir. 2003); Sepulveda

v. United States, 330 F.3d 55 (1st Cir. 2003); Coleman v. United States,

329 F.3d 77 (2d Cir. 2003); United States v. Brown, 305 F.3d 304 (5thCir.

2002);Curtis v. United States, 294 F.3d 841 (7thCir. 2002); United States

v. Mora, 293 F.3d 1213 (10th Cir. 2002); Goode v. United States,

305 F.3d 378 (6th Cir. 2002); McCoy v. United States, 266 F.3d 1245

(11th Cir. 2001); United States v. Moss, 252 F.3d 993 (8th Cir. 2001);

United States v. Sanders, 247 F.3d 139 (4th Cir. 2001).

2 Additionally, several other circuit courts have ruled—without

specifically discussing the watershed exception—that Alleyne does not

apply retroactively on collateral review. See In re Moss, 2013 U.S. App.
10 HUGHES V. UNITED STATES

that every circuit court to have considered whether Apprendi

falls within the watershed exception, including our court in

United States v. Sanchez-Cervantes, has held it does not.3

Sanchez-Cervantes rejected arguments similar to those

Hughes makes here, noting that “not every extension of

Winship is necessarilya watershed rule of criminal procedure. 

The rules announced in Winship and Mullaney were given

retroactive effect because they were to ‘overcome an aspect

of the criminal trial that substantially impairs its truth-finding

function and so raises serious questions about the accuracy of

guilty verdicts[.]’” 282 F.3d at 671 (alteration in original)

(quoting Hankerson, 432 U.S at 243). Here, a jury convicted

Hughes of brandishing a gun during a crime of violence. The

accuracy of the guilty verdict was not substantially

undermined by the court’s finding concerning the type of

weapon used.

Hughes has not established that Ivan V. and Hankerson

“necessarilydictate” that Alleyne applies retroactively. Tyler,

533 U.S. at 666. The Supreme Court did not make Alleyne

expressly retroactive, and Hughes has not shown that it was

made retroactive by multiple Supreme Court holdings. As

such, we need not consider whether Alleyne announced a new

rule of law that was previously unavailable.

LEXIS 26125, *3 (11th Cir. Oct. 23, 2013); In re Payne, 733 F.3d 1027

(10th Cir. 2013); In re Kemper, 735 F.3d 211 (5th Cir. 2013).

3

See Swinton, 333 F.3d at 490; Sepulveda, 330 F.3d at 61; Coleman,

329 F.3d at 89; Brown, 305 F.3d at 307–10; Curtis, 294 F.3d at 843–44;

Mora, 293 F.3d at 1218–19; Goode, 305 F.3d at 382–85; McCoy, 266 F.3d

at 1257–58; Moss, 252 F.3d at 997; Sanders, 247 F.3d at 151.
HUGHES V. UNITED STATES 11

CONCLUSION

We DENY Hughes’s application to file a second or

successive § 2255 motion collaterally attacking the judgment

entered in his case.