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Name: Hughes v. United States
Case #: 13-73278
Court: US Court of Appeals
District 9 Cir
Opinion Date: 10/23/2014

Alleyne v. United States (2013) 133 S.Ct. 2151, which holds that the jury must decide all facts used to increase a sentence beyond the mandatory minimum, is not retroactive to cases on collateral review. A jury convicted Hughes of brandishing a firearm in violation of 18 U.S.C. § 924(c)(1). At sentencing, the judge found, by a preponderance of the evidence, that the firearm Hughes brandished was a semi-automatic assault weapon within the meaning of section 924(c)(1)(B)(i), which increased the mandatory minimum sentence from 7 to 10 years. After Hughes’ first habeas petition was denied, the United States Supreme Court decided Alleyne, which expanded Apprendi v. New Jersey (2000) 530 U.S. 466, by holding that the jury, not the court, must determine all facts that increase the statutory minimum sentence. Hughes then filed an application seeking permission to file a second or successive habeas petition. Held: Application denied. Under AEDPA, a petitioner seeking to file a second or successive habeas petition must first receive permission from a panel of the court of appeal. The court of appeal panel can grant permission if the successive petition is based on “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 Supreme Court did not explicitly or implicitly make Alleyne retroactive and the decision did not announce a “watershed rule of criminal procedure” which should be retroactively applied to cases on collateral review. (See Teague v. Lane (1989) 489 U.S. 288.) It merely extended Apprendi, which itself is not a watershed rule retroactive on collateral review.