United States v. Redd (Shue), 2013 U.S. App. LEXIS 22423

Peter Shue was convicted in 1996 of cocaine conspiracy/attempted distribution and related firearm possession and was sentenced to 296 months; his convictions and a Rule 33 denial were affirmed on direct appeal.
Shue filed a § 2255 motion in 2001 that was dismissed as time-barred; subsequent requests for leave to file successive § 2255 motions were denied by this Court.
In 2013 Shue, pro se, moved to recall this Court’s mandates and reinstate his direct appeal to seek relief under Alleyne v. United States, arguing the district court found drug type/quantity by a preponderance of the evidence rather than to a jury beyond a reasonable doubt.
The Court construed the motion as one for leave to file a successive § 2255 motion under AEDPA gatekeeping rules and evaluated whether Alleyne announced a new, retroactive rule of constitutional law.
The Court denied authorization to file a successive § 2255 because Alleyne, while potentially a new rule, was not held by the Supreme Court to be retroactive on collateral review and does not fall within Teague’s retroactivity exceptions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court should recall its mandate to permit a new challenge under Alleyne	Shue: Alleyne requires jury findings on facts that increase mandatory minimums; his sentence depended on judge-found drug quantity/type	Government: Motion is effectively a successive § 2255 and Alleyne is not retroactive on collateral review	Motion construed as successive § 2255 and denied because Alleyne was not made retroactive by the Supreme Court
Whether Alleyne announced a new rule of constitutional law	Shue: Alleyne overruled Harris and announced a new rule applying Apprendi principles to mandatory minimums	Government: Even if new, the rule must be held retroactive by the Supreme Court to permit collateral relief	Court: May be a new rule but not held retroactive by the Supreme Court; cannot be the basis for successive § 2255 relief
Whether Alleyne fits a Teague retroactivity exception	Shue: Implied that Alleyne is substantive or a watershed procedural rule	Government: Alleyne is neither a substantive rule placing conduct beyond criminal law nor a Teague watershed procedural rule	Court: Alleyne fits neither Teague exception; not retroactive on collateral review
Appointment of counsel for Shue’s motion	Shue requested counsel to pursue Alleyne claim	Govt opposed on procedural grounds	Court denied appointment of counsel as moot because underlying motion was denied

Alleyne v. United States, 133 S. Ct. 2151 (2013) (held facts increasing mandatory minimums are elements that must be submitted to a jury)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing statutory maximum must be submitted to a jury)
Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new rules on collateral review)
Tyler v. Cain, 533 U.S. 656 (2001) (Supreme Court must make a new rule retroactive for collateral relief to apply)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Teague exceptions remain limited to substantive and watershed rules)
Fabian v. United States, 555 F.3d 66 (2d Cir. 2009) (motions to recall mandate based on intervening precedent are treated as § 2255 motions)
Bottone v. United States, 350 F.3d 59 (2d Cir. 2003) (defendants cannot evade successive § 2255 restrictions by labeling motions to recall mandate)
Haouari v. United States, 510 F.3d 350 (2d Cir. 2007) (AEDPA gatekeeping role of circuit courts over successive habeas applications)
Quezada v. Smith, 624 F.3d 514 (2d Cir. 2010) (§ 2255 dismissal on the merits when petition dismissed as time-barred)
Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86 (2d Cir. 1996) (mandate recall power exists but should be exercised sparingly)
Calderon v. Thompson, 523 U.S. 538 (1998) (recognizing narrow use of mandate-recall authority)