13-2971
United States v. Redd (Shue)

                   UNITED STATES COURT OF APPEALS

                        FOR THE SECOND CIRCUIT

                                   August Term, 2013

                           (Decided: November 5, 2013)

                                 Docket No. 13-2971

______________________________________________________

United States of America,

                     Appellee,

              v.

Michael Redd, Eric Barbour, AKA “E”,

                     Defendants,

Peter Shue,

                     Defendant-Appellant.

______________________________________________________



Before:       Jacobs and Straub, Circuit Judges, Pauley, District Judge1

      Pro se motion to recall mandates is deemed a successive motion and
denied because Alleyne v. United States, 133 S. Ct. 2151 (2013), does not

      1
       The Honorable William H. Pauley III, of the United States District Court for the
Southern District of New York, sitting by designation.
     announce a new rule of Constitutional law that has been made retroactive by
     the Supreme Court.
1
2
3    For Peter Shue:                        Peter Shue,
4                                           Glenville, WV
5

6    PER CURIAM:

7          Peter Shue, pro se, moves to recall this Court’s mandates related to his

8    conviction, and to reinstate his direct appeal in order to seek relief under the

9    Supreme Court’s recent holding in Alleyne v. United States, 133 S. Ct. 2151

10   (2013). He also seeks appointment of counsel. For the reasons stated below, we

11   construe his motion as one for leave to file a successive 28 U.S.C. § 2255 motion,

12   deny it, and deny his motion for appointment of counsel as moot.

13                                            I

14         Shue was convicted after a jury trial in 1996 of cocaine offenses

15   (conspiracy and attempted distribution) and related gun possession, and

16   sentenced principally to 296 months’ imprisonment. This Court affirmed his

17   conviction, United States v. Redd, 116 F.3d 1472, 1997 WL 346147 (Table) (2d

18   Cir. 1997), and affirmed the denial of his motion for a new trial pursuant to

19   Federal Rule of Criminal Procedure 33, United States v. Shue, 201 F.3d 433,


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1    1999 WL 1069977 (Table) (2d Cir. 1999).

2          Shue’s 2001 motion to vacate his conviction pursuant to § 2255 was

3    denied as time-barred. This Court subsequently denied his two motions for

4    leave to file successive § 2255 motions.

5          Shue’s present motion--to recall our mandates and reinstate his direct

6    appeal--argues that his sentence is unconstitutional in light of the Supreme

7    Court’s holding in Alleyne that “any fact that increases the mandatory

8    minimum [sentence] is an ‘element’ that must be submitted to the jury” and

9    proved beyond a reasonable doubt. 133 S. Ct. at 2155. Shue contends that the

10   district court violated the principle later announced in Alleyne by finding the

11   type and quantity of drugs involved by only a preponderance of the evidence.

12                                              II

13         “Our power to recall a mandate is unquestioned.” Sargent v. Columbia

14   Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). However, this power must be

15   “exercised sparingly,” id., and “only in exceptional circumstances,” Fine v.

16   Bellefonte Underwriters Ins. Co., 758 F.2d 50, 53 (2d Cir. 1985). “‘The sparing

17   use of the power demonstrates it is one of last resort, to be held in reserve

18   against grave, unforeseen contingencies.’” British Int’l Ins. Co. v. Seguros La


                                                3
1    Republica, S.A., 354 F.3d 120, 123 (2d Cir. 2003) (quoting Calderon v.

2    Thompson, 523 U.S. 538, 549-50 (1998)). This restraint is justified by the “need

3    to preserve finality in judicial proceedings.” Sargent, 75 F.3d at 89.

4          “[W]hen a defendant moves to recall the mandate based on intervening

5    precedent that calls into question the merits of the decision affirming his

6    conviction, we construe the motion as one to vacate the defendant’s sentence

7    pursuant to 28 U.S.C. § 2255.” United States v. Fabian, 555 F.3d 66, 68 (2d Cir.

8    2009). See also Bottone v. United States, 350 F.3d 59, 63 (2d Cir. 2003) (stating

9    that a criminal defendant “cannot evade the successive petition restrictions of

10   28 U.S.C. § 2255 . . . by framing his claims as a motion to recall the mandate”).

11   Accordingly, we treat Shue’s motion as one seeking relief under § 2255.

12         Shue already challenged his conviction and sentence in a § 2255 motion.

13   His prior motion raised claims regarding the same criminal judgment, see

14   Johnson v. United States, 623 F.3d 41, 45-46 (2d Cir. 2010), and was decided on

15   the merits when it was dismissed as time-barred, see Quezada v. Smith, 624

16   F.3d 514, 516, 519 (2d Cir. 2010). So, his new motion is a successive § 2255

17   motion.

18         The Anti-Terrorism and Effective Death Penalty Act of 1996 creates “a


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1    gatekeeping mechanism, by which circuit courts were assigned the task of

2    deciding in the first instance whether a successive federal habeas corpus

3    application could proceed.” Haouari v. United States, 510 F.3d 350, 352 (2d Cir.

4    2007). A successive § 2255 motion is authorized only if it is based on “newly

5    discovered evidence,” or on “a new rule of constitutional law, made retroactive

6    to cases on collateral review by the Supreme Court, that was previously

7    unavailable.”2 28 U.S.C. § 2255(h). Shue posits that Alleyne announced a new

8    rule of constitutional law because it overruled Harris v. United States, 536 U.S.

9    545 (2002).3

10         We cannot authorize Shue’s collateral attack. Shue contends that the

11   Supreme Court announced a new rule of law in Alleyne. That may be. See

12   Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (holding that Alleyne

13   announced a new rule of law). But “a new rule is not ‘made retroactive to cases

14   on collateral review’ unless the Supreme Court holds it to be retroactive.”

15   Tyler v. Cain, 533 U.S. 656, 663 (2001). The Supreme Court announced the



           2
               Shue does not argue that his motion is based on newly discovered evidence.
           3
             Alleyne is progeny of Apprendi v. New Jersey, which held that any fact that
     increased a statutory maximum sentence must be submitted to a jury and proved
     beyond a reasonable doubt. 530 U.S. 466 (2000).

                                                5
1    Alleyne rule on a direct appeal without expressly holding it to be retroactive to

2    cases on collateral review. See generally Alleyne, 133 S. Ct. 2151.

3          The Supreme Court has left open the possibility that “with the right

4    combination of holdings,” it could make a new rule retroactive over the course

5    of two or more cases, but “only if the holdings in those cases necessarily dictate

6    retroactivity of the new rule.” Tyler, 533 U.S. at 666. “The clearest instance, of

7    course, in which [the Supreme Court] can be said to have ‘made’ a new rule

8    retroactive is where [it has] expressly held the new rule to be retroactive in a

9    case of collateral review and applied the rule to that case.” Id. at 668

10   (O’Connor, J., concurring). It has not done so here; none of the dozen or so

11   cases that the Supreme Court remanded for further proceedings in light of

12   Alleyne involved collateral attacks on convictions.

13         Alternatively, the Supreme Court could also make a new rule of law

14   retroactive by placing it within a category of cases previously held to be

15   retroactive. See id. at 666; id. at 668-69 (O’Connor, J., concurring). There are

16   two such categories: new substantive rules that place “certain kinds of primary,

17   private individual conduct beyond the power of the criminal law-making

18   authority to proscribe”; and new procedural rules that “are implicit in the


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1    concept of ordered liberty.” Teague v. Lane, 489 U.S. 288, 311 (1989) (citations

2    and quotations omitted); see Chaidez v. United States, 133 S. Ct. 1103, 1107 n.3

3    (2013) (continuing to recognize only the two Teague exceptions). The latter

4    category is reserved for “watershed rules of criminal procedure” which “‘alter

5    our understanding of the bedrock procedural elements’” of the adjudicatory

6    process. Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667,

7    693 (1971) (Harlan, J., concurring)).

8          Alleyne falls within neither category. Our sister Circuits that have

9    decided this issue are in accord. See In re Payne, No. 13-5103, -- F.3d --, 2013

10   WL 5200425 (10th Cir. Sept. 17, 2013); Simpson, 721 F.3d at 876. See also United

11   States v. Stewart, No. 13-6775, -- F. App’x --, 2013 WL 5397401 (4th Cir. Sept. 27,

12   2013). Accordingly, Alleyne did not announce a new rule of law made

13   retroactive on collateral review. As a result, Shue’s motion--construed as a §

14   2255 motion--is denied.

15         We have examined Shue’s remaining contentions and find them to be

16   without merit. Because none of his claims will proceed, we deny his motion for

17   appointment of counsel as moot.

18         For the foregoing reasons, Shue’s motions are denied.


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