In re: Payne, 733 F.3d 1027

In 2003 Payne pled guilty to conspiracy to manufacture <50 grams methamphetamine and was sentenced to 240 months imprisonment (statutory maximum 20 years).
He did not appeal; in 2005 he filed a § 2255 motion raising ineffective assistance, Rule 11 defects, factual findings increasing punishment, and counsel’s failure to file an appeal. The district court dismissed all but the failure-to-appeal claim and denied relief after an evidentiary hearing. Payne’s appeal was dismissed for failure to prosecute.
Payne seeks authorization to file a second or successive § 2255 to challenge his 240-month sentence as based on drug quantities not alleged in the information, arguing his true guideline range was 57–71 months.
Payne relies on Alleyne v. United States, arguing Alleyne’s rule (that facts increasing mandatory minimums are elements requiring jury finding) entitles him to relief.
The court must decide whether Alleyne announces a new rule of constitutional law made retroactive on collateral review by the Supreme Court, which would satisfy 28 U.S.C. § 2255(h)(2) and permit authorization.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Alleyne announced a new rule of constitutional law permitting a successive § 2255	Payne: Alleyne establishes that facts increasing mandatory minima are elements, so his sentence based on uncharged facts violates the Sixth Amendment	Government: Even if Alleyne announces a rule, the Supreme Court has not made it retroactive on collateral review; hence § 2255(h)(2) is not satisfied	Denied — Alleyne is a new rule but has not been held by the Supreme Court to be retroactive on collateral review, so authorization denied
Whether the district court’s imposition of the statutory maximum violated Alleyne	Payne: Sentence exceeded guideline range based on unproven facts	Government: Plea agreement acknowledged statutory maximum; court’s exercise of discretion to impose maximum did not implicate Alleyne	Denied — exercise of statutory maximum consistent with plea; no Sixth Amendment violation under Alleyne in this context

Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty must be treated as elements)
Schriro v. Summerlin, 542 U.S. 348 (2004) (Apprendi-based rules need not be retroactive on collateral review)
Alleyne v. United States, 570 U.S. 99 (2013) (mandatory minimum–increasing facts are elements subject to jury proof beyond a reasonable doubt)
Simpson v. United States, 721 F.3d 875 (7th Cir. 2013) (Alleyne is a new rule and not held retroactive on collateral review)
Browning v. United States, 241 F.3d 1262 (10th Cir. 2001) (declining to authorize successive § 2255 where Supreme Court had not made Apprendi retroactive)
Tyler v. Cain, 533 U.S. 656 (2001) (statutory requirement that Supreme Court must have held a rule retroactive to satisfy § 2255(h)(2))