                                      PRECEDENTIAL


   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT

                  __________

                  No. 13-3537
                  __________

       UNITED STATES OF AMERICA

                       v.

              THOMAS REYES,
                    Appellant
                __________

 On Appeal from the United States District Court
    for the Eastern District of Pennsylvania

         (D.C. No. 2-06-cr-00654-001)
   District Judge: Honorable John R. Padova

   Submitted Under Third Circuit LAR 34.1(a)
                May 19, 2014

BEFORE: McKEE, Chief Judge, CHAGARES, and
        NYGAARD, Circuit Judges


             (Filed: June 18, 2014)
Keith M. Donoghue, Esq.
Sarah S. Gannett, Esq.
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, The Curtis Center, Suite 540 West
Philadelphia, PA 19106
        Counsel for Appellant

Joseph J. Khan, Esq.
Bernadette A. McKeon, Esq.
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

                         __________

                OPINION OF THE COURT
                      __________

NYGAARD, J.

        The District Court denied Appellant Thomas Reyes’
petition for a writ of habeas corpus, which he had filed
pursuant to 28 U.S.C. § 2255. But, the court granted Reyes a
certificate of appealability on the following question: whether
the decision of the United States Supreme Court in Alleyne v.
United States, 133 S.Ct. 2151 (2013) applies retroactively to
cases on collateral review? While briefing was pending in
this appeal, we issued an opinion and order in United States v.
Winkelman, et al., 746 F.3d 134 (3d Cir. 2014), which




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answered that question in the negative. In light of our
holding in Winkelman, we will affirm the District Court’s
order denying Reyes’ petition for a writ of habeas corpus.

                              I.

       The Gomez Grocery store in Philadelphia,
Pennsylvania was robbed and some of its employees
assaulted in July of 2006. Appellant Reyes was convicted by
a jury of Hobbs Act robbery of that store, a violation of 18
U.S.C. § 1951(a)1; using a firearm in relation to a crime of
violence, a violation of 18 U.S.C. § 924(c); and of being a
felon in possession of a firearm, a violation of 18 U.S.C. §
922(g)(1). Reyes was subsequently sentenced to 180 months’
imprisonment, five years of supervised release, a $1,000 fine,
and a special assessment of $300. He appealed, challenging
only his conviction for Hobbs Act robbery. We rejected his
challenge and affirmed his conviction. See United States v.
Reyes, 2010 WL 299222 (3d Cir. Jan. 27, 2010).

       After unsuccessfully petitioning the Supreme Court for
a Writ of Certiorari, Reyes filed a pro se habeas petition in
October of 2011. The District Court appointed counsel for
Reyes and conducted a thorough evidentiary hearing. Before
the District Court ruled, however, Reyes sought permission to
amend his petition, to add claims under the Supreme Court’s
Alleyne decision. The District Court denied Reyes’ petition,

1
 In relevant part, the Hobbs Act criminalizes activity that
“obstructs, delays, or affects commerce or the movement of
any article or commodity in commerce, by robbery or
extortion or attempts or conspires so to do. . . .” 18 U.S.C. §
1951(a).




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and also denied Reyes’ request to amend his petition to
include the Alleyne claims. The District Court concluded that
Alleyne did not retroactively apply to cases that were on
collateral review, but did issue Reyes a certificate of
appealability on the question.

                             II.

        Expounding on our decision in Winkelman, we
reiterate here that the rule of criminal procedure announced
by the Supreme Court in Alleyne does not apply retroactively
to cases on collateral review.2 In Alleyne, the Supreme Court
overruled its prior precedent, Harris v. United States, 536
U.S. 545 (2002), and clarified that, under the Sixth
Amendment, “‘any facts that increase the prescribed range of
penalties to which a criminal defendant is exposed’ are
elements of the crime” and must be found beyond a
reasonable doubt. Alleyne, 133 S.Ct. at 2160 (quoting
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

        At the outset, we note that we did not make a
definitive pronouncement in Winkelman as to whether Alleyne
announced a new rule, so today we clarify that Alleyne did
indeed announce a new rule. See also, In re Payne, 733 F.3d
1027, 1029 (10th Cir. 2013) (internal quotation marks
omitted); Simpson v. United States, 721 F.3d 875, 876 (7th

2
  The District Court had jurisdiction under 28 U.S.C. §§
2241(a) and 2254(a). We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253(a). We exercise plenary review over the
District Court’s legal conclusions.       See Coombs v.
Diguglielmo, 616 F.3d 255, 260 (3d Cir. 2010).




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Cir. 2013). However, while Alleyne set out a new rule of law,
it is not retroactively applicable to cases on collateral review,
like Reyes’.

       When the Supreme Court announces a new rule of law,
it generally applies to cases still on direct review. See Schriro
v. Summerlin, 542 U.S. 348, 351-52 (2004). A new rule will
only apply “in limited circumstances” to cases in which the
conviction is already finalized, however. Id.; see also Teague
v. Lane, 489 U.S. 288, 303–11 (1989). Those limited
circumstances arise with new rules “that place particular
conduct or persons covered by the statute beyond the State’s
power to punish,” or where the rule announces new
“watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal
proceeding.” Schriro at 352 (citations and internal quotation
marks omitted); Teague, 489 U.S. at 307; United States v.
Swinton, 333 F.3d 481, 490 (3d Cir. 2003). The new rule
announced in Alleyne falls under neither circumstance. First,
Alleyne announced a procedural, rather than substantive rule.
See Alleyne, 133 S.Ct. at 2164 (Sotomayor, J., concurring)
(explaining that in Alleyne “procedural rules are at issue”); id.
at 2173 n. * (Alito, J., dissenting) (agreeing that Alleyne
involves a procedural rule).

       Second, Alleyne announced no “watershed rule” of
criminal procedure. The Supreme Court has noted that “[t]his
class of rules is extremely narrow, and it is unlikely that any
has yet to emerge.” Schriro, 542 U.S. at 352 (internal
quotation marks and alterations omitted). Further, every
court to consider the issue has concluded that Alleyne
provides only a limited modification to the Sixth Amendment
rule announced in Apprendi v. New Jersey, 530 U.S. 466




                               5
(2000). See United States v. Redd, 735 F.3d 88, 91–92 (2d
Cir. 2013); In re Payne, 733 F.3d at 1029–30; In re Kemper,
735 F.3d 211, 212 (5th Cir. 2013); Simpson v. United States,
721 F.3d at 876. We agree with the Court of Appeals for the
Seventh Circuit, which recently explained that Apprendi itself
and the subsequent rulings applying and extending that
decision have not been applied retroactively: “Alleyne is an
extension of Apprendi. The Justices have decided that other
rules based on Apprendi do not apply retroactively on
collateral review. This implies that the Court will not declare
Alleyne to be retroactive.” Simpson, 721 F.3d at 876
(citations omitted).

       And, of course, the decision to make Alleyne
retroactive rests exclusively with the Supreme Court, which
has not chosen to do so. See Winkelman, 746 F.3d at 136; see
also Simpson, 721 F.3d at 876 (“Unless the Justices
themselves decide that Alleyne applies retroactively on
collateral review,” lower courts may not do so.); United
States v. Redd, 735 F.3d 88, 91 (2d Cir. 2013). Therefore,
Alleyne does not provide Reyes with any basis for relief
because the Supreme Court has not chosen to apply Alleyne’s
new rule retroactively to cases on collateral review.

       Reyes raises several well-trod and meritless arguments
in an attempt to persuade us that we should apply Alleyne’s
new rule to his habeas case. For example, he argues that
Teague does not apply to habeas actions in federal criminal
cases because concerns of federalism and comity are not
implicated. Instead, he posits that the correct test for
retroactivity remains the Supreme Court’s decision in
Linkletter v. Walker, 381 U.S. 618 (1965). We disagree. We
have long held that Teague applies to petitions filed pursuant




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to 28 U.S.C. § 2255. See United States v. Lloyd, 407 F.3d
608, 611 (3d Cir. 2005); United States v. Jenkins, 333 F.3d
151, 154 (3d Cir. 2003). And, the Linkletter decision was
itself rejected by the Supreme Court in Teague. See Teague,
489 U.S. at 302-04; Banks v. Horn, 316 F.3d 228, 248 (3d
Cir. 2003) (recognizing the “reformulation” of Linkletter).

                            III.

      For the foregoing reasons, we will affirm the District
Court decision denying Reyes’ petition for a writ of habeas
corpus.




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