                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-2916
                                   ___________

Alfred Leotis Rodgers,                  *
                                        *
             Petitioner,                * Appeal from the United States
                                        * District Court for the
      v.                                * Eastern District of Arkansas
                                        *
United States of America,               *
                                        *
             Respondent.                * [Published]
                                        *
                                   ___________

                             Submitted: October 6, 2000
                                 Filed:    October 13, 2000
                                  ___________

Before BOWMAN, BEAM, and BYE, Circuit Judges.
                          ___________

PER CURIAM.

      Alfred Leotis Rodgers has filed an application for leave to file a second motion
to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. We deny
his application.

                                 BACKGROUND

      The full story of Rodgers' indictments and eventual conviction is set out in our
opinion affirming his conviction. See United States v. Rodgers, 18 F.3d 1425, 1427-28
(8th Cir. 1994). For our purposes, it is sufficient to note that he was convicted of
conspiracy to distribute over five kilograms of cocaine and cocaine base, and of
multiple counts of distribution of cocaine base. See 21 U.S.C. §§ 841, 846. He was
sentenced to life imprisonment on the conspiracy charge, and to 20 years' imprisonment
on each of the distribution counts to run concurrently with the life sentence. Rodgers
appealed his conviction, and we affirmed. See Rodgers, 18 F.3d at 1432.

       Thereafter, Rodgers filed his first motion to vacate his sentence pursuant to §
2255. The district court denied this motion on October 30, 1997. We declined to grant
his request for a certificate of appealability on February 19, 1998. Rodgers now seeks
leave to file a second motion pursuant to § 2255.

                                   DISCUSSION

      Section 2255 provides, in pertinent part, that

      A second or successive motion must be certified as provided in section 2244 by
      a panel of the appropriate court of appeals to contain –

      (1)    newly discovered evidence that, if proven and viewed in light of the
             evidence as a whole, would be sufficient to establish by clear and
             convincing evidence that no reasonable factfinder would have found the
             movant guilty of the offense; or

      (2)    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.

       Rodgers asserts that his second motion properly falls under the second category.
He argues that the Supreme Court, in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000),
stated a new rule of constitutional law which should be found to apply retroactively to

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his case.1

      We must deny Rodgers' motion. A second or successive petitioner under § 2255
may only claim the benefit of a new constitutional rule if the Supreme Court itself
makes that rule apply retroactively. We simply lack the power, under § 2255, to
adjudge the retroactivity of new rules of constitutional law for second and successive
motions without Supreme Court guidance.

        We have previously accepted review of Apprendi claims raised in initial § 2255
mottions. However, this case presents a different question. In this case, we are solely
concerned with the language of § 2255 governing our ability to grant leave to file
second or successive motions, which is limited by the plain language of the statute: "A
second or successive motion must be certified as provided in section § 2244 by a panel
of the appropriate court of appeals to contain -- (2) a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable." This language specifically precludes us from retroactively
applying a new rule of constitutional law to second or successive motions without the
authority of the Supreme Court. Our review of initial § 2255 petitions is not so limited;
a certificate of appealability pursuant to 28 U.S.C. § 2253 may be issued by this court
or the district court "if the applicant has made a substantial showing of the denial of a
constitutional right." This language imposes no conditions on our review. We may
determine if a new rule of law as determined by the Supreme Court creates a
"constitutional right," and if so, whether such rule retroactively applies to a case on
initial collateral review. Again, the plain language of the statutes governs our authority.



      1
       In Apprendi, the Supreme Court held that any fact which increases a
sentence beyond the statutory maximum, other than the fact of a prior conviction,
must be pled and proven before a jury beyond a reasonable doubt. See Apprendi,
120 S. Ct. at 2355-56. We have no occasion to address the question of whether
Apprendi states a new rule of constitutional law.
                                            -3-
       We therefore deny Rodgers' petition because the Supreme Court has not made
Apprendi retroactive to cases on collateral review, as required by the plain language
of § 2255. As the Fourth Circuit has noted, "a new rule of constitutional law has been
'made retroactive to cases on collateral review by the Supreme Court' within the
meaning of § 2255 only when the Supreme Court declares the collateral availability of
the rule in question, either by explicitly so stating or by applying the rule in a collateral
proceeding." In re Vial, 115 F.3d 1192, 1197 (4th Cir. 1997) (quoting § 2255).
Nowhere in the Apprendi decision itself, or in any subsequent decision, does the
Supreme Court discuss Apprendi's retroactivity. Therefore, Apprendi is not available
to a prisoner filing a second or successive petition under § 2255.2

       Our holding is consistent with those of several other circuits. See Talbot v. State
of Indiana, No. 00-3080, 2000 WL 1268166, at *1 (7th Cir. Sept. 7, 2000) ("If the
Supreme Court ultimately declares that Apprendi applies retroactively on collateral
attack, we will authorize successive collateral review of cases to which Apprendi
applies. Until then prisoners should hold their horses and stop wasting everyone's time
with futile applications."); In re Joshua, No. 00-14328, 2000 WL 1227966, at *2 (11th
Cir. Aug. 30, 2000) ("For a new rule to be retroactive, the Supreme Court must make
it retroactive to cases on collateral review. . . . To date, the Supreme Court has not
declared that Apprendi be applied retroactively to cases on collateral review.") (internal
citations omitted); Sustache-Rivera v. United States, 221 F.3d 8, 15 (1st Cir. 2000)
("[I]t is clear that the Supreme Court has not made the rule [in Apprendi] retroactive
to cases on collateral review. . . . And so, Sustache's claim does not meet the
requirements for a second or successive petition.") (internal citations omitted).

       Because the Supreme Court has not made Apprendi retroactively applicable to


       2
        The same would also hold true for a second or successive habeas petition
filed pursuant to 28 U.S.C. §2244(b)(2)(A). Section 2244 employs the same key
language, "made retroactive to cases on collateral review by the Supreme Court."
                                             -4-
cases on collateral review, Rodgers' application for leave to file a second § 2255
motion based on Apprendi is denied.

      A true copy.



            Attest:



               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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