                                                                             FILED
                                                                 United States Court of Appeals
                                     PUBLISH                             Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   September 17, 2013
                                                                    Elisabeth A. Shumaker
                           FOR THE TENTH CIRCUIT                        Clerk of Court


In re: JAMES EDWARD PAYNE,

             Movant.                                       No. 13-5103
                                             (D.C. Nos. 4:05-CV-00113-HDC-SAJ &
                                                    4:02-CR-00063-CVE-4)
                                                           (N.D. Okla.)


                                      ORDER


Before TYMKOVICH, EBEL, and O’BRIEN, Circuit Judges.


      James Edward Payne moves for authorization to file a second or successive

motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. We deny

authorization.

      In 2003, Mr. Payne pled guilty to conspiracy to manufacture less than fifty

grams of a mixture or substance containing methamphetamine in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 846. He was sentenced to 240 months’ of

imprisonment. Although he did not appeal, he filed, in February 2005, a § 2255

motion asserting that his counsel was ineffective, his change of plea and sentencing

hearing violated Federal Rule of Civil Procedure 11, he never conceded any amount

of methamphetamine beyond the amount set out in the plea agreement, the district

court improperly found certain facts contrary to the plea agreement that increased his
punishment, and he asked trial counsel to file a notice of appeal, but counsel did not

do so. The district court dismissed all claims except the failure-to-file-a-notice-of-

appeal claim as barred by the plea agreement. After holding an evidentiary hearing

on that claim, the district court denied § 2255 relief. We dismissed Mr. Payne’s

appeal for failure to prosecute.

      Mr. Payne now seeks authorization to file a second or successive § 2255

motion to challenge his sentence. He asserts that the district court improperly

imposed a 240-month sentence based on drug quantities not alleged in the

information and his sentence should be corrected to fall within the guidelines range

of fifty-seven to seventy-one months of imprisonment. He contends that the Supreme

Court’s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013), entitles

him to authorization.

       We will grant authorization when a second or successive § 2255 claim is

based on “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). Alleyne, however, does not fully meet these requirements.

      Alleyne overruled prior Supreme Court case law and held that under the Sixth

Amendment:

      Any fact that, by law, increases the penalty for a crime is an “element”
      that must be submitted to the jury and found beyond a reasonable doubt.
      Mandatory minimum sentences increase the penalty for a crime. It
      follows, then, that any fact that increases the mandatory minimum is an
      “element” that must be submitted to the jury.


                                          -2-
133 S. Ct. at 2155 (citation omitted). Although Mr. Payne asserts that Alleyne is not

a new rule of law and instead re-establishes prior Sixth Amendment law, we agree

with the Seventh Circuit that Alleyne actually does set forth “a new rule of

constitutional law,” Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013). But

this new rule of constitutional law has not been “made retroactive to cases on

collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2). The Supreme

Court has concluded that “‘made’ means ‘held’ and thus, the requirement is satisfied

only if th[e] Court has held that the new rule is retroactively applicable to cases on

collateral review.” Tyler v. Cain, 533 U.S. 656, 662 (2001). The Court has not held

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

resolved Alleyne on direct rather than collateral review.” Simpson, 721 F.3d at 876.

We agree with the Seventh Circuit that:

             Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466
      (2000). The Justices have decided that other rules based on Apprendi do
      not apply retroactively on collateral review. See Schriro v. Summerlin,
      542 U.S. 348 (2004). This implies that the Court will not declare
      Alleyne to be retroactive. . . . Unless the Justices themselves decide
      that Alleyne applies retroactively on collateral review, we cannot
      authorize a successive collateral attack based on § 2255(h)(2).

Simpson, 721 F.3d at 876. 1 See generally Browning v. United States, 241 F.3d 1262,

1266 (10th Cir. 2001) (declining to authorize second or successive § 2255 motion

because Supreme Court has not made Apprendi retroactive).


1
       Even if the Supreme Court had decided that Alleyne applied retroactively to
cases on collateral review, we would still deny authorization. “Apprendi concluded
                                                                          (continued)
                                          -3-
      Accordingly, we deny Mr. Payne authorization to file a second or successive

§ 2255 motion. This denial of authorization “shall not be appealable and shall not be

the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C.

§ 2244(b)(3)(E).

                                                Entered for the Court



                                                ELISABETH A. SHUMAKER, Clerk




that any ‘facts that increase the prescribed range of penalties to which a criminal
defendant is exposed’ are elements of the crime.” Alleyne, 133 S. Ct. at 2160
(quoting Apprendi, 530 U.S. at 490). In this case, there were no facts that increased
the range of penalties. The plea agreement in this case indicated that the statutory
maximum penalty was twenty years of imprisonment, see 21 U.S.C. § 841(b)(1)(C);
that Mr. Payne understood the district court could impose the statutory maximum;
and that sentencing was a matter for the court’s discretion. By choosing to exercise
its discretion to impose the statutory maximum, the court did not violate the Sixth
Amendment. See id. at 2163.



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