FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 17, 2013
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
In re: JAMES EDWARD PAYNE,
Movant. No. 13-5103
(D.C. Nos. 4:05-CV-00113-HDC-SAJ &
4:02-CR-00063-CVE-4)
(N.D. Okla.)
ORDER
Before TYMKOVICH, EBEL, and O’BRIEN, Circuit Judges.
James Edward Payne moves for authorization to file a second or successive
motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We deny
authorization.
In 2003, Mr. Payne pled guilty to conspiracy to manufacture less than fifty
grams of a mixture or substance containing methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He was sentenced to 240 months’ of
imprisonment. Although he did not appeal, he filed, in February 2005, a § 2255
motion asserting that his counsel was ineffective, his change of plea and sentencing
hearing violated Federal Rule of Civil Procedure 11, he never conceded any amount
of methamphetamine beyond the amount set out in the plea agreement, the district
court improperly found certain facts contrary to the plea agreement that increased his
punishment, and he asked trial counsel to file a notice of appeal, but counsel did not
do so. The district court dismissed all claims except the failure-to-file-a-notice-of-
appeal claim as barred by the plea agreement. After holding an evidentiary hearing
on that claim, the district court denied § 2255 relief. We dismissed Mr. Payne’s
appeal for failure to prosecute.
Mr. Payne now seeks authorization to file a second or successive § 2255
motion to challenge his sentence. He asserts that the district court improperly
imposed a 240-month sentence based on drug quantities not alleged in the
information and his sentence should be corrected to fall within the guidelines range
of fifty-seven to seventy-one months of imprisonment. He contends that the Supreme
Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), entitles
him to authorization.
We will grant authorization when a second or successive § 2255 claim is
based on “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). Alleyne, however, does not fully meet these requirements.
Alleyne overruled prior Supreme Court case law and held that under the Sixth
Amendment:
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.
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133 S. Ct. at 2155 (citation omitted). Although Mr. Payne asserts that Alleyne is not
a new rule of law and instead re-establishes prior Sixth Amendment law, we agree
with the Seventh Circuit that Alleyne actually does set forth “a new rule of
constitutional law,” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). But
this new rule of constitutional law has not been “made retroactive to cases on
collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). The Supreme
Court has concluded that “‘made’ means ‘held’ and thus, the requirement is satisfied
only if th[e] Court has held that the new rule is retroactively applicable to cases on
collateral review.” Tyler v. Cain, 533 U.S. 656, 662 (2001). The Court has not held
that Alleyne applies retroactively to cases on collateral review. Further, “[t]he Court
resolved Alleyne on direct rather than collateral review.” Simpson, 721 F.3d at 876.
We agree with the Seventh Circuit that:
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466
(2000). The Justices have decided that other rules based on Apprendi do
not apply retroactively on collateral review. See Schriro v. Summerlin,
542 U.S. 348 (2004). This implies that the Court will not declare
Alleyne to be retroactive. . . . Unless the Justices themselves decide
that Alleyne applies retroactively on collateral review, we cannot
authorize a successive collateral attack based on § 2255(h)(2).
Simpson, 721 F.3d at 876. 1 See generally Browning v. United States, 241 F.3d 1262,
1266 (10th Cir. 2001) (declining to authorize second or successive § 2255 motion
because Supreme Court has not made Apprendi retroactive).
1
Even if the Supreme Court had decided that Alleyne applied retroactively to
cases on collateral review, we would still deny authorization. “Apprendi concluded
(continued)
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Accordingly, we deny Mr. Payne authorization to file a second or successive
§ 2255 motion. This denial of authorization “shall not be 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
that any ‘facts that increase the prescribed range of penalties to which a criminal
defendant is exposed’ are elements of the crime.” Alleyne, 133 S. Ct. at 2160
(quoting Apprendi, 530 U.S. at 490). In this case, there were no facts that increased
the range of penalties. The plea agreement in this case indicated that the statutory
maximum penalty was twenty years of imprisonment, see 21 U.S.C. § 841(b)(1)(C);
that Mr. Payne understood the district court could impose the statutory maximum;
and that sentencing was a matter for the court’s discretion. By choosing to exercise
its discretion to impose the statutory maximum, the court did not violate the Sixth
Amendment. See id. at 2163.
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