                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MARCELONE HUGHES,                                  No. 13-73278
                                 Petitioner,

                      v.
                                                      OPINION
 UNITED STATES OF AMERICA,
                      Respondent.


           Application to File Second or Successive
              Petition Under 28 U.S.C. § 2255

                    Argued and Submitted
           July 9, 2014—San Francisco, California

                      Filed October 23, 2014

   Before: N. Randy Smith and Morgan Christen, Circuit
  Judges, and Lawrence L. Piersol, Senior District Judge.*

                   Opinion by Judge Christen




 *
   The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for the District of South Dakota, sitting by designation.
2                  HUGHES V. UNITED STATES

                           SUMMARY**


                          Habeas Corpus

   The panel denied a federal offender’s application for an
order authorizing him to file a second or successive motion
under 28 U.S.C. § 2255 to vacate his sentence.

    The panel held that the Supreme Court has not made
Alleyne v. United States, 133 S. Ct. 2151 (2013) (holding that
any fact that increases the mandatory minimum is an element
that must be submitted to the jury), retroactive to cases on
collateral review.


                             COUNSEL

Quin Anthony Denvir (argued), Attorney at Law, Davis,
California, for Petitioner.

Dawrence Wayne Rice, Jr. (argued), Office of the United
States Attorney, Fresno, California, for Respondent.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                HUGHES V. UNITED STATES                     3

                         OPINION

CHRISTEN, Circuit Judge:

     Marcelone Hughes applies for an order granting him
authorization to file a second or successive habeas corpus
motion to vacate his sentence. Hughes argues that Alleyne v.
United States, 133 S. Ct. 2151 (2013), created “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(h)(2). This is an issue of
first impression in the Ninth Circuit. We have jurisdiction
under 28 U.S.C. §§ 2244(b) & 2255(h). We join our sister
circuits in concluding that the Supreme Court has not made
Alleyne retroactive to cases on collateral review, and we deny
the application.

                     BACKGROUND

    Hughes was indicted in October 2002 for brandishing a
firearm during a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1). In July 2003, a jury convicted him of that
offense. The statutory penalty for brandishing a firearm
during a crime of violence is a term of imprisonment of not
less than seven years. Id. § 924(c)(1)(A)(ii). The mandatory
minimum sentence increases to ten years if a semi-automatic
assault weapon is used. Id. § 924(c)(1)(B)(i).

    At Hughes’s March 2004 sentencing hearing, the district
court, over an objection from Hughes’s counsel, made a
finding that Hughes brandished a semi-automatic assault
weapon. The court imposed the ten-year mandatory
minimum sentence. In doing so, the district court relied on
Harris v. United States, 536 U.S. 545 (2002), which allowed
4                HUGHES V. UNITED STATES

judges to make factual findings at the time of sentencing
based on a preponderance of the evidence.

   Hughes appealed the district court’s finding and sentence,
but our court affirmed the district court’s ruling, citing
Harris. United States v. Hughes, 178 Fed. App’x. 703,
705–06 (9th Cir. 2006). Hughes then filed a motion under
28 U.S.C. § 2255 seeking to collaterally attack the judgment.
He argued that the nature of the firearm had been neither
found by the jury nor established beyond a reasonable doubt.
Again relying on Harris, the district court denied the motion.
Hughes v. United States, 2008 U.S. Dist. LEXIS 118361 at
*13–18 (E.D. Cal. Aug. 7, 2008).

    In 2013, the Supreme Court overruled Harris in Alleyne.
Alleyne, 133 S. Ct. at 2155. The Court held:

       Any fact that, by law, increases the penalty for
       a crime is an “element” that must be
       submitted to the jury and found beyond a
       reasonable doubt. Mandatory minimum
       sentences increase the penalty for a crime. It
       follows, then, that any fact that increases the
       mandatory minimum is an “element” that
       must be submitted to the jury.

Id. Alleyne relied on Apprendi v. New Jersey, 530 U.S. 466
(2000), which established that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Id. at 490;
Alleyne, 133 S. Ct. at 2168. Alleyne reasoned that “there is no
basis in principle or logic to distinguish facts that raise the
maximum from those that increase the minimum.” 133 S. Ct.
                 HUGHES V. UNITED STATES                        5

at 2163. The Court resolved Alleyne on direct review and did
not declare that its holding should be applied retroactively on
collateral attack. See id. at 2155 (describing procedural
history).

    Soon after Alleyne was decided, Hughes filed a pro se
application in this court for permission to file a second or
successive § 2255 motion. Our court appointed counsel for
Hughes and ordered that counsel file a supplemental
application for authorization to file a second or successive
§ 2255 motion. The supplemental application argues that
Hughes’s “Fifth and Sixth Amendment rights were violated
when the finding as to the nature of the firearm was made by
a preponderance of the evidence, not beyond a reasonable
doubt.”

                        DISCUSSION

    The Antiterrorism and Effective Death Penalty Act
limited the ability of federal courts to grant relief to prisoners
who file second or successive habeas corpus applications.
See Tyler v. Cain, 533 U.S. 656, 661 (2001). Before a second
or successive application may be filed in the district court, it
“must be certified as provided in section 2244 by a panel of
the appropriate court of appeals to contain . . . 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(h). “The court of appeals
may authorize the filing of a second or successive application
only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this
subsection.” Id. § 2244(b)(3)(C).
6                HUGHES V. UNITED STATES

        The Supreme Court has not made Alleyne
         retroactive to cases on collateral review.

    After Alleyne, the district court could not have imposed
three additional years of jail time on a defendant’s sentence
based on its own finding that a preponderance of the evidence
showed the defendant brandished a semi-automatic weapon
during the commission of a crime of violence. The question
here is whether Hughes can obtain relief by applying the rule
from Alleyne retroactively.

    The general rule is that “new constitutional 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).
“[A] new rule is not ‘made retroactive to cases on collateral
review’ unless the Supreme Court holds it to be retroactive.”
Tyler, 533 U.S. at 663. The Court can establish that a holding
applies retroactively either expressly or through the
combination of the holdings from multiple cases. Id. at
663–68. The Supreme Court did not expressly make the rule
in Alleyne retroactive, but Hughes argues that the rule was
made retroactive through multiple holdings.

    The Court has set a high bar for applying rules
retroactively through multiple holdings. “Multiple cases can
render a new rule retroactive only if the holdings in those
cases necessarily dictate retroactivity of the new rule.” Id. at
666 (emphasis added). The Court “can be said to have
‘made’ a rule retroactive within the meaning of
§ 2244(b)(2)(A) only where the Court’s holdings logically
permit no other conclusion than that the rule is retroactive.”
Id. at 669 (O’Connor, J., concurring).
                 HUGHES V. UNITED STATES                      7

     A rule can be made retroactive through multiple cases if
it falls within one of two narrow exceptions to the general
rule of nonretroactivity set out in Teague. Tyler, 533 U.S. at
665 (citing Teague, 489 U.S. at 311–13). Those exceptions
are: “(1) [if] the rule is substantive or (2) [if] the rule is a
watershed rul[e] of criminal procedure implicating the
fundamental fairness and accuracy of the criminal
proceeding.” Whorton v. Bockting, 549 U.S. 406, 416 (2007)
(third alteration in original) (internal quotation marks and
citations omitted). Only the second, procedural, exception is
at issue here because Alleyne announced a procedural rule.
See Alleyne, 133 S. Ct. at 2164 (Sotomayor, J., concurring)
(explaining that in Alleyne “procedural rules [were] at issue
that do not govern primary conduct”). This is important
because:

       New rules of procedure . . . generally do not
       apply retroactively. They do not produce a
       class of persons convicted of conduct the law
       does not make criminal [i.e., the first Teague
       exception], but merely raise the possibility
       that someone convicted with use of the
       invalidated procedure might have been
       acquitted otherwise.

Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Moreover,
the Supreme Court has said “the rule must be one without
which the likelihood of an accurate conviction is seriously
diminished. This class of rules is extremely narrow, and it is
unlikely that any . . . ha[s] yet to emerge.” Id. (alteration in
original) (internal quotation marks and citations omitted). In
other words, the Court has raised the bar even higher for
watershed procedural rules.
8                HUGHES V. UNITED STATES

    Despite the Supreme Court’s direction that this class of
rules will be extremely limited, Hughes argues the “Court has
made all new reasonable-doubt rules completely retroactive,
[and] Alleyne is a new reasonable-doubt rule.” He cites the
Court’s holdings in Ivan V. v. City of New York, 407 U.S. 203
(1972), and Hankerson v. North Carolina, 432 U.S. 233
(1977), which, he argues, “necessarily dictate[]” that the rule
announced in Alleyne is retroactive. Ivan V. and Hankerson
held, respectively, that the Court’s decisions in two other
cases, In re Winship, 397 U.S. 358 (1970), and Mullaney v.
Wilbur, 421 U.S. 684 (1975), applied retroactively. Ivan V.,
407 U.S. at 204–05; Hankerson, 432 U.S. at 242–44. This is
important, according to Hughes, because in Apprendi v. New
Jersey the Court explicitly relied on the rationale in Winship
and Mullaney “in holding that any fact that increased the
penalty beyond the statutory maximum had to be proved
beyond a reasonable doubt.”

    Hughes’s argument fails because he has not cleared the
high bar to establish that Supreme Court precedent
“necessarily dictate[s]” the retroactivity of Alleyne. Tyler,
533 U.S. at 666. We reach this conclusion for several
reasons. First, the Supreme Court indicated that Alleyne
simply extended Apprendi’s reasoning, noting that “the
principle applied in Apprendi applies with equal force to facts
increasing the mandatory minimum.” Alleyne, 133 S. Ct. at
2160. If Apprendi, which relied on Winship and Mullaney,
does not apply retroactively, then a case extending Apprendi
should not apply retroactively based on those same cases.
Every circuit court to address whether Apprendi applies
retroactively, including this court in United States v. Sanchez-
                    HUGHES V. UNITED STATES                              9

Cervantes, 282 F.3d 664 (9th Cir. 2002), has held that it does
not.1

    Second, we conclude that Alleyne, like Apprendi, does not
fall within the procedural “watershed” exception. As the
Supreme Court noted, “[t]his class of rules is extremely
narrow, and it is unlikely that any . . . ha[s] yet to emerge.”
Summerlin, 542 U.S. at 352 (second alteration in original)
(internal quotation marks and citations omitted). Consistent
with the reasoning in Summerlin, all of our sister circuits to
have considered whether Alleyne falls within the watershed
exception have held that it does not. See In re Mazzio, 2014
U.S. App. LEXIS 11839, at *9–10 (6th Cir. June 24, 2014)
(“Alleyne . . . does not meet the high standard for new rules
of criminal procedure.”); United States v. Reyes, 755 F.3d
210, 212 (3d Cir. 2014) (“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); United States v. Redd,
735 F.3d 88, 91 (2d Cir. 2013) (“Alleyne [does not] fall[]
within” the watershed exception).2 This is unsurprising given


 1
   See United States v. Swinton, 333 F.3d 481 (3d Cir. 2003); 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); 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).
     2
      Additionally, several other circuit courts have ruled—without
specifically discussing the watershed exception—that Alleyne does not
apply retroactively on collateral review. See In re Moss, 2013 U.S. App.
10                HUGHES V. UNITED STATES

that every circuit court to have considered whether Apprendi
falls within the watershed exception, including our court in
United States v. Sanchez-Cervantes, has held it does not.3
Sanchez-Cervantes rejected arguments similar to those
Hughes makes here, noting that “not every extension of
Winship is necessarily a watershed rule of criminal procedure.
The rules announced in Winship and Mullaney were given
retroactive effect because they were to ‘overcome an aspect
of the criminal trial that substantially impairs its truth-finding
function and so raises serious questions about the accuracy of
guilty verdicts[.]’” 282 F.3d at 671 (alteration in original)
(quoting Hankerson, 432 U.S at 243). Here, a jury convicted
Hughes of brandishing a gun during a crime of violence. The
accuracy of the guilty verdict was not substantially
undermined by the court’s finding concerning the type of
weapon used.

    Hughes has not established that Ivan V. and Hankerson
“necessarily dictate” that Alleyne applies retroactively. Tyler,
533 U.S. at 666. The Supreme Court did not make Alleyne
expressly retroactive, and Hughes has not shown that it was
made retroactive by multiple Supreme Court holdings. As
such, we need not consider whether Alleyne announced a new
rule of law that was previously unavailable.




LEXIS 26125, *3 (11th Cir. Oct. 23, 2013); In re Payne, 733 F.3d 1027
(10th Cir. 2013); In re Kemper, 735 F.3d 211 (5th Cir. 2013).
  3
    See Swinton, 333 F.3d at 490; Sepulveda, 330 F.3d at 61; Coleman,
329 F.3d at 89; Brown, 305 F.3d at 307–10; Curtis, 294 F.3d at 843–44;
Mora, 293 F.3d at 1218–19; Goode, 305 F.3d at 382–85; McCoy, 266 F.3d
at 1257–58; Moss, 252 F.3d at 997; Sanders, 247 F.3d at 151.
                HUGHES V. UNITED STATES                  11

                     CONCLUSION

    We DENY Hughes’s application to file a second or
successive § 2255 motion collaterally attacking the judgment
entered in his case.
