Barrow v. United States
990 F. Supp. 2d 76
D.P.R.2013Background
- Tony Barrow was charged in 2003 with importing and possessing with intent to distribute 500+ grams of cocaine; convicted by jury in 2004 and sentenced to concurrent 262-month terms; direct appeal and cert. denied.
- Barrow filed a §2255 motion in 2007 attacking counsel; the district court denied it in 2009; appeals/certificate of appealability were denied.
- In 2013 Barrow filed a filing titled a "supplemental" §2255 motion asserting Alleyne-based error and counsel ineffectiveness tied to sentence enhancements (including a §851 enhancement and career-offender arguments).
- Magistrate Judge Arenas treated the filing as a second or successive §2255 motion because Barrow’s earlier §2255 had been adjudicated and he had not obtained circuit-court authorization to file a successive petition.
- The R&R concluded Alleyne did not create a retroactive rule applicable to collateral review of Barrow’s sentence, that the §851/prior-conviction exception (Almendarez-Torres) controls, and therefore the court lacked jurisdiction to entertain the successive petition; recommend denial as time‑barred and no COA.
- District Judge Besosa adopted the R&R, no objections were filed, and denied the supplemental §2255 motion for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2013 filing is a timely supplemental §2255 or a successive petition | Barrow: Alleyne announced a new right triggering §2255(f)(3) limitations and permitting collateral review | Respondent: Barrow’s prior §2255 was final; this is a second/successive petition requiring circuit authorization and is time‑barred | Held: It is a second/successive §2255; district court lacks jurisdiction; denied as time‑barred |
| Whether Alleyne applies retroactively to collateral review | Barrow: Alleyne created a new rule that should be applied retroactively under §2255(h)(2) | Respondent: Alleyne is an extension of Apprendi and not retroactive; courts have declined retroactivity | Held: Alleyne is not retroactive on collateral review; cannot rescue the petition |
| Whether sentencing enhancements (e.g., §851/prior convictions, career‑offender arguments) required jury findings | Barrow: Court erred by not submitting §851/enhancement facts to jury | Respondent: Almendarez‑Torres permits prior‑conviction enhancements to be found by judge; Alleyne does not disturb that exception | Held: Prior‑conviction enhancement is an exception; Alleyne does not negate Almendarez‑Torres in this context |
| Whether the court should transfer the petition to the circuit for authorization instead of dismissing | Barrow: Implicitly seeks merits review via filing | Respondent: Court may "peek at the merits" but here petition is clearly time‑barred and dismissal (not transfer) is appropriate | Held: Court exercised limited merits review and recommended dismissal rather than transfer to avoid wasting resources |
Key Cases Cited
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior conviction need not be submitted to jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (fact increasing penalty must be proved to jury beyond reasonable doubt)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (mandatory‑minimum increasing facts are elements for jury)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance of counsel test)
- United States v. Barrow, 448 F.3d 37 (1st Cir. 2006) (affirming conviction and sentence)
- In re Payne, 733 F.3d 1027 (10th Cir. 2013) (Alleyne is not retroactive on collateral review)