786 F.3d 1089
8th Cir.2015Background
- Rey was convicted in 2007 after a jury found him guilty of a cocaine-base conspiracy (5–50 grams found by jury); district court at sentencing found 50–150 grams and imposed 240 months. Appellate court affirmed.
- In August 2009 Rey filed a completed preprinted § 2255 form asserting unfair trial, ineffective assistance of counsel, and that the district court used a greater drug weight than the jury found; he requested assistance of counsel.
- The district court denied that § 2255 motion on the merits and rejected the drug-weight claim as previously litigated on direct appeal. Rey later sought counsel to file a new § 2255 motion.
- In March 2014, with counsel, Rey filed a § 2255 motion invoking Alleyne v. United States; the district court dismissed it as an uncertified second or successive petition and as untimely because Alleyne was not held retroactive.
- The district court declined to certify the petition under § 2255(h); the court of appeals granted a certificate of appealability on whether Alleyne is retroactive and expanded COA to include whether Rey’s filing was successive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly treated Rey’s 2009 filing as a § 2255 motion | Rey contended the 2009 filing sought only counsel to help prepare a § 2255 and was not a § 2255 motion in substance | The government/district court argued the 2009 filing, by form and substance, was a § 2255 motion and therefore subject to § 2255 restrictions | Court held the 2009 filing was a § 2255 motion in name and substance; characterization was proper |
| Whether the 2014 Alleyne-based filing was a second or successive § 2255 petition | Rey argued Alleyne created a new constitutional rule that should permit relief | The government argued Rey’s 2014 filing was a second or successive petition and Rey had not obtained appellate certification under § 2255(h) | Court held the 2014 filing was a second or successive § 2255 petition and dismissal was proper |
| Whether Alleyne is retroactively applicable on collateral review | Rey argued Alleyne should apply retroactively to his case to invalidate the sentencing drug-quantity finding | Government/district court argued Alleyne had not been declared retroactive by the Supreme Court and thus cannot be used in an uncertified successive petition | Court did not reach the merits of Alleyne’s retroactivity because petition was second/successive; dismissal affirmed |
| Whether the district court was required to warn/convert the filing or give opportunity to withdraw | Rey implied he intended only to seek counsel, not file § 2255 relief requiring warning | Government/district court relied on the fact the filing explicitly was a § 2255 motion, so the Morales warning/conversion procedure was unnecessary | Court held Morales conversion/warning was not required because the filing was unambiguously a § 2255 motion |
Key Cases Cited
- United States v. Webb, 545 F.3d 673 (8th Cir. 2008) (affirming Rey’s conviction and sentence)
- Thomas v. United States, 737 F.3d 1202 (8th Cir. 2013) (de novo review standard for § 2255 procedural issues)
- Williams v. Norris, 461 F.3d 999 (8th Cir. 2006) (de novo review citation)
- Godoski v. United States, 304 F.3d 761 (7th Cir. 2002) (post-conviction filing that fits § 2255 is a § 2255 motion regardless of label)
- Stone v. Harry, 364 F.3d 912 (8th Cir. 2004) (liberal construction of pro se pleadings principle)
- Morales v. United States, 304 F.3d 764 (8th Cir. 2002) (requirement to warn and allow withdrawal when recharacterizing a non-§ 2255 filing as § 2255)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (established that facts increasing mandatory minimum are elements that must be submitted to jury)