United States v. Thomas Reyes

755 F.3d 210, 2014 WL 2747216, 2014 U.S. App. LEXIS 11418

• Court: Court of Appeals for the Third Circuit
• Decided: June 18, 2014
• Docket: 13-3537
• Status: Published

Opinion

NYGAARD, Circuit Judge.

The District Court denied Appellant Thomas Reyes’ SHOE petition for a writ of habeas corpus, which he had filed pursuant to 28 U.S.C. § 2255. But, the court granted Reyes a certificate of appealability on the following question: whether the decision of the United States Supreme Court in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) applies retroactively to cases on eol-lateral review? While briefing was pending in this appeal, we issued an opinion and order in United States v. Winkelman, et al., 746 F.3d 134 (3d Cir.2014), which answered that question in the negative. In light of our holding in Winkelman, we will affirm the District Court’s order denying Reyes’ petition for a writ of habeas corpus.

I.

The Gomez Grocery store in Philadelphia, Pennsylvania was robbed and some of its employees assaulted in July of 2006. Appellant Reyes was convicted by a jury of Hobbs Act robbery of that store, a violation of 18 U.S.C. § 1951(a) 1 ; using a firearm in relation to a crime of violence, a violation of 18 U.S.C. § 924(c); and of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Reyes was subsequently sentenced to 180 months’ imprisonment, five years of supervised release, a $1,000 fine, and a special assessment of $300. He appealed, challenging only his conviction for Hobbs Act robbery. We rejected his challenge and affirmed his conviction. See United States v. Reyes, 2010 WL 299222 (3d Cir. Jan. 27, 2010).

After unsuccessfully petitioning the Supreme Court for a Writ of Certiorari, Reyes filed a pro se habeas petition in October of 2011. The District Court appointed counsel for Reyes and conducted a thorough evidentiary hearing. Before the District Court ruled, however, Reyes sought permission to amend his petition, to add claims under the Supreme Court’s Al-leyne decision. The District Court denied Reyes’ petition, and also denied Reyes’ request to amend his petition to include the Alleyne claims. The District Court concluded that Alleyne did not retroactively apply to cases that were on collateral review, but did issue Reyes a certificate of appealability on the question.

II.

Expounding on our decision in Winkelman, we reiterate here that the rule of criminal procedure announced by the Supreme Court in Alleyne does not apply retroactively to cases on collateral review. 2 In Alleyne, the Supreme Court overruled its prior precedent, Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and clarified that, under the Sixth Amendment, “ ‘any facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime” and must be found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

At the outset, we note that we did not make a definitive pronouncement in Wink-elman as to whether Alleyne announced a new rule, so today we clarify that Alleyne did indeed announce a new rule. See also, In re Payne, 733 F.3d 1027, 1029 (10th Cir.2013) (internal quotation marks omitted); Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013). However, while Alleyne set out a new rule of law, it is not retroactively applicable to cases on collateral review, like Reyes’.

When the Supreme Court announces a new rule of law, it generally applies to cases still on direct review. See Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). A new rule will only apply “in limited circumstances” to cases in which the conviction is already finalized, however. Id.; see also Teague v. Lane, 489 U.S. 288, 303-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Those limited circumstances arise with new rules “that place particular conduct or persons covered by the statute beyond the State’s power to punish,” or where the rule announces new “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Schriro at 352, 124 S.Ct. 2519 (citations and internal quotation marks omitted); Teague, 489 U.S. at 307, 109 S.Ct. 1060; United States v. Swinton, 333 F.3d 481, 490 (3d Cir.2003). The new rule announced in Alleyne falls under neither circumstance. First, Alleyne announced a procedural, rather than substantive rule. See Alleyne, 133 S.Ct. at 2164 (Sotomayor, J., concurring) (explaining that in Alleyne “procedural rules are at issue”); id. at 2173 n. * (Alito, J., dissenting) (agreeing that Alleyne involves a procedural rule).

Second, Alleyne announced no “watershed rule” of criminal procedure. The Supreme Court has noted that “[t]his class of rules is extremely narrow, and it is unlikely that any has yet to emerge.” Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (internal quotation marks and alterations omitted). Further, every court to consider the issue has concluded that Alleyne provides only a limited modification to the Sixth Amendment rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See United States v. Redd, 735 F.3d 88, 91-92 (2d Cir.2013); In re Payne, 733 F.3d at 1029-30; In re Kemper, 735 F.3d 211, 212 (5th Cir.2013); Simpson v. United States, 721 F.3d at 876. We agree with the Court of Appeals for the Seventh Circuit, which recently explained that Apprendi itself and the subsequent rulings applying and extending that decision have not been applied retroactively: “Alleyne is an extension of Apprendi. The Justices have decided that other rules based on Apprendi do not apply retroactively on collateral review. This implies that the Court will not declare Alleyne to be retroactive.” Simpson, 721 F.3d at 876 (citations omitted).

And, of course, the decision to make Alleyne retroactive rests exclusively with the Supreme Court, which has not chosen to do so. See Winkelman, 746 F.3d at 136; see also Simpson, 721 F.3d at 876 (“Unless the Justices themselves decide that Al-leyne applies retroactively on collateral review,” lower courts may not do so.); United States v. Redd, 735 F.3d 88, 91 (2d Cir.2013). Therefore, Alleyne does not provide Reyes with any basis for relief because the Supreme Court has not chosen to apply Alleyne’s new rule retroactively to cases on collateral review.

Reyes raises several well-trod and mer-itless arguments in an attempt to persuade us that we should apply Alleyne’s new rule to his habeas case. For example, he argues that Teague does not apply to ha-beas actions in federal criminal cases because concerns of federalism and comity are not implicated. Instead, he posits that the correct test for retroactivity remains the Supreme Court’s decision in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). We disagree. We have long held that Teague applies to petitions filed pursuant to 28 U.S.C. § 2255. See Lloyd v. United States, 407 F.3d 608, 611 (3d Cir.2005); United States v. Jenkins, 333 F.3d 151, 154 (3d Cir.2003). And, the Linkletter decision was itself rejected by the Supreme Court in Teague. See Teague, 489 U.S. at 302-04, 109 S.Ct. 1060; Banks v. Horn, 316 F.3d 228, 248 (3d Cir.2003) (recognizing the “reformulation” of Linkletter).

III.

For the foregoing reasons, we will affirm the District Court decision denying Reyes’ petition for a writ of habeas corpus.

1 . In relevant part, the Hobbs Act criminalizes activity that "obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do...." 18 U.S.C. § 6 & 1951(a).

2 . The District Court had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court's legal conclusions. See Coombs v. Diguglielmo, 616 F.3d 255, 260 (3d Cir.2010).