In United States v. Redd (Shue), No. 13-2971 (2d Cir. Nov. 5, 2013) (Jacobs, Straub, and Pauley) (per curiam), available here, the Circuit held that Alleyne v. United States, 113 S. Ct. 2151 (2013), does not apply retroactively to cases on collateral review.
Alleyne held that “any fact that increases the mandatory minimum [sentence] is an ‘element’ that must be submitted to the jury” and proved beyond a reasonable doubt. 133 S. Ct. at 2155.
Shue, whose 1996 convictions and 292-month prison sentence had been affirmed on direct appeal, and whose 2255 motion had been denied as time-barred, sought to take advantage of the new rule announced in Alleyne. Specifically, he asked the Circuit to reinstate his direct appeal so he could obtain relief under Alleyne.
The Circuit first construed the request as motion for leave to file a successive 2255 motion. The Circuit then held that leave could be granted only if Alleyne announced “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).
The Circuit, joining the other courts of appeals that have addressed the issue, held that the Supreme Court has not made Alleyne retroactive to cases on collateral review. Thus, Shue was not entitled to file a successive 2255 motion.