Argued and Submitted July 9, 2014, San Francisco, California
Application to File Second or Successive Petition Under 28 U.S.C. § 2255.
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, 186 L.Ed.2d 314 (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.
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.
Before: N. Randy Smith and Morgan Christen, Circuit Judges, and Lawrence L. Piersol, Senior District Judge[*].
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, 186 L.Ed.2d 314 (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.
Hughes was indicted in October 2002 for brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § ...