In Re: Elwood

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.

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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

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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).