United States Court of Appeals
Fifth Circuit
F I L E D
REVISED APRIL 28, 2005
IN THE UNITED STATES COURT OF APPEALS April 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-30269
IN RE: GERALD W. ELWOOD,
Movant.
--------------------
Motion for an order authorizing
the United States District Court for the Eastern
District of Louisiana to consider
a successive 28 U.S.C. § 2255 motion
--------------------
Before JONES, SMITH, and PRADO, Circuit Judges.
PER CURIAM:
Gerald A. Elwood was convicted of conspiracy to possess
cocaine with intent to distribute, murder and assault with a
deadly weapon in aid of a racketeering enterprise, and two counts
of using and carrying a firearm during a drug-trafficking
offense. This court affirmed his convictions. See United States
v. Tolliver, 61 F.3d 1189, 1196 (5th Cir. 1995), vacated and
remanded on other grounds, 516 U.S. 1105 (1996) (remanded in
light of Bailey v. United States, 516 U.S. 137 (1995)).
The district court granted a subsequent 28 U.S.C. § 2255
motion by Elwood in part, vacating the firearm convictions but
denying Elwood’s other claims. In September 2000, and again in
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September 2004, Elwood sought permission from this court to file
successive § 2255 motions on various grounds. This court denied
both motions.
Elwood now returns to this court seeking leave to file
another § 2255 motion. In his latest request, Elwood contends
that the sentence imposed by the district court is
unconstitutional in light of United States v. Booker, 125 S. Ct.
738 (2005).
In Booker, a majority of the Supreme Court extended to the
federal Sentencing Guidelines the rule announced in Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington,
--- U.S. ---, 124 S. Ct. 2531 (2004): pursuant to the Sixth
Amendment, any fact, other than the fact of a prior conviction,
“which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt.” 125 S. Ct. at 756. A different
majority of the Court then excised certain statutory provisions
that made the Guidelines mandatory, thereby rendering the
Guidelines advisory only. Id. at 756-57. Elwood argues that,
pursuant to Booker, the district court’s application of the
Guidelines in determining his sentence violated his Sixth
Amendment rights.
Elwood’s motion is governed by the Antiterrorism and
Effective Death Penalty Act, which provides that a second or
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successive § 2255 motion must be certified as provided in 28
U.S.C. § 2244 by a panel of the court of appeals to contain:
(1) 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 offense; or (2) 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. Under § 2244(b)(3), Elwood must make a prima
facie showing that his motion satisfies this standard. See
Reyes-Requena v. United States, 243 F.3d 893, 897-98 (5th Cir.
2001) (holding that § 2244(b)(3) is incorporated into § 2255).
Under the analysis set forth in Tyler v. Cain, 533 U.S. 656, 663
(2001), Elwood has failed to make the requisite prima facie
showing that his claim relies on a new rule of constitutional law
“made retroactive to cases on collateral review by the Supreme
Court . . . .” 28 U.S.C. § 2255.
In Tyler, the Supreme Court held that, in the context of a
successive habeas petition, 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 Supreme Court
is the only entity that can ‘ma[k]e’ 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.”
Id.
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Under the Tyler analysis, it is clear that Booker has not
been made retroactive to cases on collateral review by the
Supreme Court. The Supreme Court did not so hold in Booker, nor
has the Court done so in any case since Booker. The same is true
with respect to Apprendi and Blakely. In fact, in Booker, the
Court expressly held that both the Sixth Amendment holding and
its remedial interpretation apply “to all cases on direct
review.” 125 S. Ct. at 769 (emphasis added). The Court could
have, but did not, make any reference to cases on collateral
review.
In addition, the Supreme Court has not rendered any decision
or combination of decisions that, while not expressly making the
rule of Apprendi, Blakely and Booker retroactive, “necessarily
dictate[s] retroactivity” of that rule. Tyler, 533 U.S. at 666.
To the contrary, the Supreme Court has strongly suggested that
Apprendi and, by logical extension, Blakely and Booker do not
apply retroactively on collateral review. See Schriro v.
Summerlin, --- U.S. ---, 124 S. Ct. 2519, 2526 (2004)(holding
that Ring v. Arizona, 536 U.S. 584 (2002), which extended
application of Apprendi to facts increasing a defendant’s
sentence from life imprisonment to death, does not apply
retroactively to cases on collateral review).
The standards for a successive § 2254 petition and a
successive § 2255 motion based on a new constitutional rule are
identical: the claims must rely on “a new rule of constitutional
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law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C.
§§ 2244(b)(2)(A), 2255. The Supreme Court has not made Booker
retroactive to any cases on collateral review.1
Therefore, we join our sister circuits and hold that Booker
does not apply retroactively on collateral review for purposes of
a successive § 2255 motion. See In re Olopade, --- F.3d. ---,
2005 WL 820550 at *3 (3d Cir. April 11, 2005); Bey v. United
States, 399 F.3d 1266, 1269 (10th Cir. 2005); In re Anderson, 396
F.3d 1336, 1339 (11th Cir. 2005); McReynolds v. United States,
397 F.3d 479, 481 (7th Cir. 2005); Green v. United States, 397
F.3d 101, 103 (2d Cir. 2005).
Accordingly, IT IS ORDERED that Elwood’s motion for
authorization to file a successive 28 U.S.C. § 2255 motion is
DENIED.
1
There is no reason to apply Tyler differently to
successive § 2254 petitions and successive § 2255 motions. See
United States v. Orozco-Ramirez, 211 F.3d 862, 864 n.4 (5th Cir.
2000) (this court interprets the requirements of § 2254 and
§ 2255 in pari materia when “the context does not indicate that
would be improper,” and we refer to cases interpreting § 2254 “as
relevant to our analysis”); In re Olopade, --- F.3d. ---, 2005 WL
820550 at *3 n.3 (3d Cir. April 11, 2005) (applying Tyler to
successive § 2254 petitions and § 2255 motions).