United States v. Smith, 2:04-cr-00096

Smith was convicted in 2005 of being a felon in possession of a firearm and sentenced as an Armed Career Criminal to 262 months; direct appeal affirmed.
Smith previously filed and lost a § 2255 motion and other post-conviction challenges; prior appeals were unsuccessful.
In February 2014 Smith filed a new § 2255 motion relying on Alleyne v. United States, arguing judicial factfinding increased his mandatory minimum and should have been submitted to a jury.
Smith did not obtain authorization from the Ninth Circuit to file a successive § 2255 motion under 28 U.S.C. § 2244(b)(3).
The district court concluded it lacked jurisdiction to address the merits of a second or successive § 2255 motion without Ninth Circuit authorization.
In the interest of justice, instead of dismissing, the court ordered the motion transferred to the Ninth Circuit for authorization consideration under 28 U.S.C. § 1631.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court may consider a second or successive § 2255 motion absent Ninth Circuit authorization	Smith contends the motion raises a new Alleyne-based claim that invalidates judicial factfinding used to enhance his sentence	Government (and statutory scheme) asserts Smith must obtain circuit authorization first; without it the district court lacks jurisdiction	Court held it lacked jurisdiction to reach the merits and transferred the motion to the Ninth Circuit for authorization
Whether Alleyne announces a new rule retroactive on collateral review such that Smith’s claim qualifies under § 2255(h)	Smith argues Alleyne renders his judicial factfinding unconstitutional and therefore his motion qualifies as a successive collateral attack	Government disputes retroactivity or notes retroactivity is a question for the circuit; prior precedent indicates uncertainty	Court did not decide retroactivity; noted other circuits found Alleyne to be a new rule but not made retroactive by the Supreme Court, and left determination to the Ninth Circuit

Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimums are elements that must be found by a jury)
Harris v. United States, 536 U.S. 545 (2002) (prior rule relieved jury of finding certain facts increasing sentencing ranges)
Burton v. Stewart, 549 U.S. 147 (2007) (district court lacks jurisdiction to entertain a second or successive petition without circuit authorization)
Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (district court lacks jurisdiction over second or successive habeas petitions absent appellate authorization)
Miller v. Hambrick, 905 F.2d 259 (9th Cir. 1990) (transfer to appropriate court is generally preferable to dismissal under § 1631)
Simpson v. United States, 721 F.3d 875 (7th Cir. 2013) (Alleyne is a new rule but not retroactive on collateral review)