Herrera-Gomez v. United States, No. 14-1166 (2d Cir. June 17, 2014) (Winter, Walker, and Cabranes) (per curiam), available here
Petitioner, a federal prisoner convicted of conspiracy to distribute heroin, moved in the Circuit for leave to file a successive 28 U.S.C. § 2255 motion in the district court based on the Supreme Court’s decision in Peugh v. United States, 133 S. Ct. 2072 (2013). The Circuit, however, denied leave, holding that the rule announced in Peugh was not “a new rule of constitutional law . . . made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2).
Peugh held that a “retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.” 133 S. Ct. at 2804. In seeking leave to file a successive § 2255 motion based on Peugh, petitioner contended that the case 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)(2).
The Circuit rejected petitioner’s argument. Though Peugh arguably announced a new rule of constitutional law, the Circuit held, the Supreme Court has not yet made the Peugh rule retroactive to cases on collateral review. Peugh did not establish a “watershed rule of criminal procedure” that “alter[s] our understanding of the bedrock procedural elements” of the adjudicatory process. Nor did Peugh place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Teague v. Lane, 489 U.S. 288, 311 (1989). Instead, Peugh “simply changed the discretion afforded to judges in determining which Guidelines to apply at sentencing.” Accordingly, the Circuit held, it could not authorize the filing of petitioner’s successive § 2255 motion under Peugh.