                                                                             FILED
                                                                 United States Court of Appeals
                                        PUBLISH                          Tenth Circuit

                     UNITED STATES COURT OF APPEALS                    August 12, 2014

                                                                    Elisabeth A. Shumaker
                                      TENTH CIRCUIT                     Clerk of Court


 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                       No. 14-8027
                                              (D.C. Nos. 1:14-CV-00023-NDF and
                                                    2:05-CR-00270-WFD-2)
 KENNETH HOON,                                             (D. Wyo.)

              Defendant - Appellant.


                                         ORDER



Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.


      Mr. Kenneth Hoon was convicted in federal court on drug charges and

sentenced to 151 months’ imprisonment. After unsuccessfully appealing, Mr.

Hoon filed a motion to vacate the sentence under 28 U.S.C. § 2255, and the

district court denied his motion as untimely. Mr. Hoon seeks a certificate of

appealability to appeal the district court’s order, alleging reliance on Alleyne v.

United States, __ U.S. __, 133 S. Ct. 2151 (2013). According to Mr. Hoon,

Alleyne involved a new rule of constitutional law, creating an exception to the

limitations period. Mr. Hoon’s argument would be rejected by any reasonable
jurist because it is grounded on a misconception of § 2255. Thus, we decline to

issue a certificate of appealability and dismiss the appeal.

                   Standard for a Certificate of Appealability

      To appeal, Mr. Hoon needs a certificate of appealability. 28 U.S.C.

§ 2253(c)(1)(B) (2012). To obtain the certificate, Mr. Hoon must show that

reasonable jurists could find the district court’s decision on timeliness debatable

or wrong. See Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007).

                      Timeliness and 28 U.S.C. § 2255(f)(3)

      A one-year period of limitations exists. 28 U.S.C. § 2255(f) (2012). This

period ordinarily starts when the conviction became final. Id. § 2255(f)(1). Mr.

Hoon’s conviction became final 90 days after the termination of his appeal. See

United States v. Burch, 202 F.3d 1274, 1279 (10th Cir. 2000). Therefore, the

limitations period would ordinarily have started in March 2008 and ended in

March 2009. But the § 2255 motion was not filed until 2014.

      Mr. Hoon seeks to avoid the limitations bar by invoking 28 U.S.C.

§ 2255(f)(3) (2012). This provision applies when the movant relies on a

constitutional rule newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review. 28 U.S.C. § 2255(f)(3)

(2012).




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                                The Alleyne Decision

      In Alleyne v. United States, the Supreme Court held that any fact that

increases a mandatory minimum is an element that must be decided by the jury.

Alleyne v. United States, __ U.S. __, 133 S. Ct. 2151, 2155, 2163-64 (2013). By

newly recognizing this constitutional right, the Supreme Court’s decision satisfies

part of § 2255(f)(3). See In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013). 1

But Mr. Hoon must also satisfy the remaining requirement in § 2255(f)(3): the

existence of a past holding that the newly recognized constitutional right is

retroactively applicable to cases on collateral review.

      No court has treated Alleyne as retroactive to cases on collateral review.

See United States v. Reyes, __ F.3d __, 2014 WL 2747216 (3d Cir. June 18, 2014)

(to be published) (holding that Alleyne does not apply to cases on collateral

review); In re Mazzio, __ F.3d __, 2014 WL 2853722, at *2-3 (6th Cir. June 24,

2014) (to be published) (same holding); Susinka v. United States, __ F. Supp. 2d

__, 2014 WL 1998242, at *8 (N.D. Ill. May 14, 2014) (to be published) (same

holding); Barrow v. United States, __ F. Supp. 2d __, 2013 WL 6869654, at *1, 5
1
        In Payne, we addressed a statutory restriction on second or successive motions
under § 2255. In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013). This restriction also
involves reliance on a new constitutional rule made retroactive to cases on collateral
review. 28 U.S.C. § 2255(h)(2) (2012). But the statutory restriction in Payne requires
acknowledgment of retroactivity in a Supreme Court decision. Id. Unlike that
restriction, § 2255(f)(3) does not expressly require a Supreme Court holding on
retroactivity. See United States v. Sanders, 247 F.3d 139, 146 n.4 (4th Cir. 2001). We
need not decide whether § 2255(f)(3) requires a Supreme Court determination on
retroactivity.
                                              3
(D. P.R. Nov. 21, 2013) (to be published) (same holding). As a result, the district

court held that § 2255(f)(3) does not apply.

      This holding could not be questioned by any reasonable jurist. Section

2255(f)(3) applies only if a new constitutional rule has been held applicable to

cases on collateral review, and no court has treated Alleyne as retroactively

applicable on collateral review. Thus, § 2255(f)(3) does not apply and all

reasonable jurists would conclude that the § 2255 motion was untimely. In these

circumstances, we decline to issue a certificate of appealability and dismiss the

appeal.

                                               Entered for the Court


                                               Robert E. Bacharach
                                               Circuit Judge




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