    Case: 13-51161    Document: 00512892335     Page: 1   Date Filed: 01/07/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                 No. 13-51161
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                                                  January 7, 2015
UNITED STATES OF AMERICA,
                                                                   Lyle W. Cayce
                                                                        Clerk
                                           Plaintiff–Appellee,

versus

IGNACIO OLVERA,

                                           Defendant–Appellant.



                Appeal from the United States District Court
                     for the Western District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
      Ignacio Olvera appeals, pro se and in forma pauperis, the dismissal of
his 28 U.S.C. § 2255 motion as time-barred. He claims that an amended judg-
ment, entered after his sentence was modified pursuant to Federal Rule of
Criminal Procedure 35(b), recommences the one-year limitations period under
§ 2255(f)(1). In addition, he maintains that the motion was timely because
Alleyne v. United States, 133 S. Ct. 2151 (2013), applies retroactively to cases
on collateral review. The district court rejected those arguments and issued a
certificate of appealability on both issues. We affirm.
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                                       No. 13-51161
                                              I.
       In October 2010, Olvera was sentenced to 168 months’ imprisonment
after pleading guilty of conspiracy to possess five kilograms or more of cocaine
with intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. This court
affirmed in August 2011, 1 and Olvera did not petition for a writ of certiorari. 2
In accordance with the government’s motion to reduce the sentence under
Rule 35(b), the district court entered an amended judgment with a 120-month
sentence in December 2012. Olvera filed the § 2255 motion in January 2013.
       The district court dismissed the motion as time-barred after finding that
(1) it was filed more than one year after he had failed to petition for certiorari
in his initial case; (2) the government had not prevented him from timely filing
the motion; (3) Alleyne is not retroactively applicable to cases on collateral
review and therefore does not alter the limitations period; and (4) Olvera was
not entitled to equitable tolling. On appeal Olvera maintains that the court
erred by not calculating the limitations period from the time of the amended
judgment and that Alleyne is retroactive.


                                             II.
       “We review the district court’s factual findings relating to a § 2255
motion for clear error and its conclusions of law de novo.” United States v.




       1  See United States v. Olvera, 439 F. App’x 302 (5th Cir. 2011) (per curiam). We
“decline[d] to reach Olvera’s [ineffective assistance of counsel] claims, without prejudice to
Olvera’s ability to bring them in a motion pursuant to 28 U.S.C. § 2255.” Id. at 303. Contrary
to Olvera’s assertion now, nothing in our opinion granted him leave to file a § 2255 motion
out of time.
       2 Although represented by counsel, Olvera filed a pro se petition for rehearing in Sep-
tember 2011. The clerk informed him that no action would be taken on the petition because
it was not filed by his lawyer. In October, Olvera moved to dismiss counsel but was told that
this court would take no action because the mandate had issued in September and the case
was closed.
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Redd, 562 F.3d 309, 311 (5th Cir. 2009). Section 2255(f) provides a one-year
period in which to file a § 2255(a) motion, running from the later of “the date
on which the judgment of conviction becomes final” 3 or “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made retroactively applica-
ble to cases on collateral review . . . .” 4


                                               A.
       A “judgment of conviction becomes final” under § 2255(f)(1) when the
Supreme Court “affirms a conviction on the merits on direct review or denies
a petition for a writ of certiorari, or when the time for filing a certiorari petition
expires.” 5 Olvera’s time to file a certiorari petition expired in November 2011,
and his § 2255 motion was filed more than a year later. 6 But he avers that the
amended judgment, entered after a sentence modification pursuant to
Rule 35(b), re-starts the one-year period.
       Although we have not addressed that issue, every circuit to examine it
has decided that the limitations period does not renew. 7 We agree: “The plain
language of 18 U.S.C. § 3582(b) establishes that a modification of a sentence




       3   28 U.S.C. § 2255(f)(1).
       4 28 U.S.C. § 2255(f)(3). There are two other grounds that can trigger the limitations
period, but neither applies to this appeal. See § 2255(f)(2), (4).
       5 Redd, 562 F.3d at 311 (quoting Clay v. United States, 537 U.S. 522, 527 (2003))
(internal quotation marks omitted).
       6  See SUP. CT. R. 13(1) (“[A] petition for a writ of certiorari . . . is timely when it is
filed with the Clerk of this Court within 90 days after entry of the judgment.”).
       7 See Murphy v. United States, 634 F.3d 1303, 1306–09 (11th Cir. 2011); Byers v.
United States, 561 F.3d 832, 835 (8th Cir. 2009); United States v. Chapman, 220 F. App’x
827, 830 (10th Cir. 2007); Reichert v. United States, 101 F. App’x 13, 14 (6th Cir. 2004); United
States v. Schwartz, 274 F.3d 1220, 1223–26 (9th Cir. 2001); United States v. Sanders, 247
F.3d 139, 142–44 & n.2 (4th Cir. 2001).
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                                       No. 13-51161
does not affect the finality of a criminal judgment.” 8 “Notwithstanding the fact
that a sentence . . . can subsequently be [modified under Rule 35(b),] . . . a
judgment of conviction that includes such a sentence constitutes a final judg-
ment for all other purposes.” 18 U.S.C. § 3582(b)–(c). The one-year period from
“the date on which the judgment of conviction becomes final” is one such “other
purpose.” Because the sentence reduction has no impact on the finality of
Olvera’s conviction, his motion was untimely under § 2255(f)(1). 9


                                             B.
       Olvera urges that his motion was timely under § 2255(f)(3) because it
was filed within one year from the date on which the Supreme Court, in
Alleyne, initially recognized the new rule of constitutional law that he contends
is retroactively applicable to cases on collateral review. At the time of Olvera’s
sentencing, either the judge or the jury could decide whether a defendant’s
conduct met the requirements for a mandatory-minimum sentence. See Harris
v. United States, 536 U.S. 545, 568–69 (2002). Harris was overruled by Alleyne,
which held that, unless waived, “any fact that increases a defendant’s
mandatory minimum sentence must be submitted to a jury to be proved beyond
a reasonable doubt.” 10
       In Kemper this court recognized that the Supreme Court had not made


       8   Sanders, 247 F.3d at 143.
       9 The cases cited by Olvera are not to the contrary. The petitioner in Torres v. United
States, No. 5:10-CV-17, 2011 WL 1298457 (S.D. Tex. Apr. 4, 2011), was given an opportunity
to file an out-of-time appeal because his counsel had not followed his instruction to file a
notice of appeal. The movant’s § 2255 motion in Fuller v. United States, No. 1:06-CR-0137-
06-RWS, 2013 WL 450859 (N.D. Ga. Feb. 5, 2013) was denied, in part, because it was filed
outside of the one-year limitations period in § 2255(f).
       10  In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013) (per curiam) (citing Alleyne, 133
S. Ct. at 2163). Alleyne extended Apprendi v. New Jersey, 530 U.S. 466 (2000), which required
any fact, other than a prior conviction, that increases the penalty beyond the prescribed
statutory maximum to be submitted to a jury and proved beyond a reasonable doubt.
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                                       No. 13-51161
Alleyne retroactively applicable to cases on collateral review, as required to file
a successive § 2255 motion under § 2255(h)(2). 11 We reiterate that Alleyne does
not apply retroactively. This decision accords with that of every circuit to have
examined the issue, none of which has decided that Alleyne is retroactive. 12
       “Unless they fall within an exception to the general rule, new constitu-
tional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.” Teague v. Lane, 489
U.S. 288, 310 (1989). Such rules are “retroactive[] only if the rule . . . is a
‘watershed rule[ ] of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.’” 13                “The Supreme Court has
instructed that a new rule qualifies for ‘watershed’ status only if it (i) ‘[is] nec-
cessary to prevent an impermissibly large risk of an inaccurate conviction’ and
(ii) ‘alter[s] our understanding of the bedrock procedural elements essential to
the fairness of a proceeding.’” 14 “This class of rules is extremely narrow, and


       11Section 2255(h)(2) is inapplicable because Olvera has not filed a second or successive
§ 2255 motion; the timeliness of his initial motion is reviewed under § 2255(f)(3). Although
§ 2255(h)(2) specifies that the new rule of constitutional law must be “made retroactive to
cases on collateral review by the Supreme Court” (emphasis added), there is no such require-
ment in § 2255(f)(3). The government’s cursory citations to Dodd v. United States, 545 U.S.
353 (2005), and Tyler v. Cain, 656, 662–63 (2001), notwithstanding, “§ 2255(f)(3) does not
require that the retroactivity determination must be made by the Supreme Court itself.”
United States v. Lopez, 248 F.3d 427, 432 (5th Cir. 2001).
       12 See Hughes v. United States, 770 F.3d 814, 817–19 (9th Cir. 2014); In re Mazzio, 756
F.3d 487, 489–91 (6th Cir. 2014); United States v. Reyes, 755 F.3d 210, 212–13 (3d Cir. 2014),
cert. denied, No. 14-6816, 2014 WL 5364572 (U.S. Nov. 17, 2014); United States v. Redd, 735
F.3d 88, 91–92 (2d Cir. 2013) (per curiam); In re Moss, No. 13-14570-D, 2013 LEXIS 26125,
at *1–4 (11th Cir. Oct. 23, 2013) (per curiam); United States v. Stewart, 540 F. App’x 171, 172
n.1 (4th Cir. 2013) (per curiam); In re Payne, 733 F.3d 1027, 1029–30 (10th Cir. 2013); Simp-
son v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
       13 Panetti v. Stephens, 727 F.3d 398, 413 (5th Cir. 2013), cert. denied, 135 S. Ct. 47
(2014) (alteration in original) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).
       14 Id. (alterations in original) (quoting Whorton v. Bockting, 549 U.S. 406, 418 (2007)
(citations omitted) (internal quotation marks omitted)). The Supreme Court may also make
a new rule retroactive over the course of multiple decisions. See Tyler v. Cain, 533 U.S. 656,
666 (2001). That argument, however, was addressed in Kemper, in which we held that the
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                                        No. 13-51161
‘it is unlikely that any . . . ha[s] yet to emerge.’” 15
       Alleyne extended Apprendi, and “[e]very circuit court to address whether
Apprendi applies retroactively . . . has held that it does not.” 16 In United States
v. Brown, 305 F.3d 304, 309 (5th Cir. 2002) (per curiam), this court held that
Apprendi did not meet the “watershed” exception because “the accuracy
improved by Apprendi is in the imposition of a proper sentence rather than the
determination of guilt or innocence and that Apprendi did not alter our under-
standing of bedrock elements essential to a fundamentally fair proceeding.”
Given that Alleyne is an extension of Apprendi, Brown is equally applicable
here. We agree with all of our sister circuits that Alleyne is not within the
“watershed” exception. 17
       The dismissal of the § 2255 motion, as time-barred, is AFFIRMED. 18




Court did not make Alleyne retroactive through a combination of decisions or otherwise.
       15Schriro v. Summerlin, 542 U.S. 348, 352 (alteration in original) (internal quotation
marks omitted) (quoting Tyler v. Cain, 533 U.S. 656, 667, n.7 (2001) (quoting Sawyer v.
Smith, 497 U.S. 227, 243 (1990)).
       16 Hughes, 770 F.3d at 818 (citing United States v. Swinton, 333 F.3d 481 (3d Cir.
2003). See Sepulveda v. United States, 330 F.3d 55 (1st Cir. 2003); Coleman v. United States,
329 F.3d 77 (2d Cir. 2003); United States v. Brown, 305 F.3d 304 (5th Cir. 2002) (per curiam);
Curtis v. United States, 294 F.3d 841 (7th Cir. 2002); United States v. Mora, 293 F.3d 1213
(10th Cir. 2002); Goode v. United States, 305 F.3d 378 (6th Cir. 2002); McCoy v. United States,
266 F.3d 1245 (11th Cir. 2001); United States v. Moss, 252 F.3d 993 (8th Cir. 2001); United
States v. Sanders, 247 F.3d 139 (4th Cir. 2001)).
       17  See Hughes, 770 F.3d at 818–19 (“[W]e conclude that Alleyne, like Apprendi, does
not fall within the procedural ‘watershed’ exception.”) (citing In re Mazzio, 756 F.3d at 490–
91 (“Alleyne . . . does not meet the high standard for new rules of criminal procedure.”); Reyes,
755 F.3d at 212 (“Alleyne announced no ‘watershed rule’ of criminal procedure. . . . [E]very
court to consider the issue has concluded that Alleyne provides only a limited modification to
the Sixth Amendment rule announced in Apprendi.” (citations omitted)); Redd, 735 F.3d at 91
(“Alleyne [does not] fall[ ] within” the watershed exception.)).
       18 Because the § 2255 motion is untimely, Olvera’s request for a certificate of appeala-
bility on the issue of ineffective assistance of counsel is DENIED.
                                               6
