Felix v. USA

Filing 4

ORDER by Judge Ronald M Whyte denying 1 Motion to Vacate (rmwlc2, COURT STAFF) (Filed on 6/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

SAN JOSE DIVISION
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UNITED STATES OF AMERICA,
Plaintiff,

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Case No. 8-04607-RMW
Related to CR-00-20217-RMW

v.
ORDER RE: “MOTION REQUESTING
PRESERVATION OF ALLEYNE
CLAIMS”

EARL A. JOSEPH,
Defendant.

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Defendant Earl A. Joseph filed a “Motion Requesting Preservation of Alleyne Claims” while

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his prior 18 U.S.C. § 2255 Motion appeal is pending. See Dkt. No. 18 (Notice of Appeal); Dkt. No.

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25 (Motion). The current motion appears to be a “second or successive” § 2255 petition, which must

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be certified by a panel of the appropriate court of appeals to contain “(1) newly discovered evidence

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that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by

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clear and convincing evidence that no reasonable factfinder would have found the movant guilty of

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the offense;” or “(2) a new rule of constitutional law, made retroactive to cases on collateral review

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by the Supreme Court, that was previously unavailable.” See 28 U.S.C. § 2255.

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Regardless of whether this motion is characterized as a second § 2255 petition, Joseph’s
motion is filed well beyond the one year statute of limitation in § 2255, and is not based on a “a new
ORDER
Case No. 14-CV-00408-RMW
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rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that

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was previously unavailable.” Id.

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Joseph bases his petition on United States v. Alleyne, 133 S.Ct. 2151 (2013). Numerous
courts have found that Alleyne does not apply retroactively to cases on collateral review. See, e.g.,

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In re Payne, 2013 WL 5200425, * 1–2 (10th Cir. Sept.17, 2013) (“The Court has not held that

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Alleyne applies retroactively to cases on collateral review. Further, ‘[t]he Court resolved Alleyne on

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direct rather than collateral review ... Alleyne is an extension of Apprendi v. New Jersey, 530 U.S.

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466 (2000). The Justices have decided that other rules based on Apprendi do not apply retroactively

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on collateral review.”); United States v. Denton, 2013 WL 5423599, *1 (W.D. Wis. Sept.26, 2013)

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United States District Court
For the Northern District of California

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(Alleyne does not apply retroactively to cases closed before Alleyne was decided); Bennett v. United

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States, 2013 WL 5406653, *1 (S.D. Sept. 25, 2013) (“[T]he Supreme Court did not declare that the

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new rule in Alleyne is retroactive on collateral review, nor is it likely to do so.”); United States v.

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Crayton, 2013 WL 4350643, * 1 (W.D. Wis. Sept. 23, 2013) (“As a general rule, rules of procedure,

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such as the ones announced in Apprendi and Alleyne do not apply retroactively to cases that became

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final before the new rule was announced.”); Munguia v. United States, 2013 WL 5306192, *17

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(E.D. Tenn. Sept.20, 2013) (“[T]he new rule announced in Allyene is not retroactive and cannot be

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applied retroactively to cases on collateral review under § 2255”); Clinton v. Young, 2013 WL

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5233712, *1 (W.D.La. Sept.16, 2013) (While the Fifth Circuit has not ruled on this issue, “the

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courts that have addressed it have all held that Alleyne is not retroactive.”) citing Mingo v. United

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States, 2013 WL 449929, *2 (W.D. Mich. Aug. 19, 2013) (“The holding in Alleyne does not qualify

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as a new ‘watershed rule’ ”). Accordingly, the court DENIES the “Motion Requesting Preservation

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of Alleyne Claims.”

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Dated: June 19, 2014

_________________________________
Ronald M. Whyte
United States District Judge

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ORDER
Case No. 14-CV-00408-RMW
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