In re: Shines
696 F.3d 1330
10th Cir.2012Background
- Shines was convicted by jury on simple possession of crack cocaine and felon in possession of a firearm for conduct in March 2010, and convicted October 26, 2010.
- Sentenced April 22, 2011 to 60 months on each count, concurrent, with concurrent 3-year supervised release.
- Guideline advisory range for both offenses was 37–46 months; the 60-month sentence reflected the pre-FSA five-year minimum under § 844.
- Shines previously filed a § 2255 motion (denied) and voluntarily dismissed an appeal from that denial.
- Shines seeks authorization to file a second or successive § 2255 motion arguing the Fair Sentencing Act (FSA) and Dorsey apply to his post‑Act sentencing.
- The district court cannot authorize a second or successive motion unless a gatekeeping showing is made under 28 U.S.C. § 2255(h).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shines may obtain authorization to file a second § 2255 motion. | Shines relies on Dorsey to show a new rule. | Dorsey is not a new constitutional rule applicable to § 2255(h). | Authorization denied; no new constitutional rule announced. |
Key Cases Cited
- Dorsey v. United States, 132 S. Ct. 2321 (2012) (addresses statutory interpretation, not a new constitutional rule)
- Brace v. United States, 634 F.3d 1167 (10th Cir. 2011) (new statutory interpretations cannot be raised in second or successive § 2255 motions)