United States v. Thomas Reyes

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UNITED STATES of America v. Thomas REYES, Appellant.

No. 13-3537.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) May 19, 2014. Filed: June 18, 2014.

sert breach of contract claims against G-I would lead to an impermissible double recovery. The Center‘s recovery for its own claims and claims it brought on behalf of present Members of the Center have no bearing on the Former Members’ claims, particularly when they were explicitly excluded from the Settlement Agreement between the Center and G-I.

IV.

For the foregoing reasons, we vacate the District Court‘s order affirming the Bankruptcy Court‘s grant of summary judgment in G-I‘s favor and remand to the District Court. The District Court should vacate its opinion and remand to the Bankruptcy Court for further proceedings consistent with this opinion. We have determined that the Producer Agreement does not prohibit the Former Members’ breach of contract actions against G-I. The merits of the Former Members’ claims—whether G-I breached the Producer Agreement, whether they can show damages, and whether G-I has any valid defenses—are not before this Court and we make no comment on their likelihood of success. On remand, the Bankruptcy Court may allow discovery and additional summary judgment motions on the merits of these claims or proceed to trial.

lateral review? While briefing was pending in this appeal, we issued an opinion and order in

United States v. Winkelman, et al., 746 F.3d 134 (3d Cir.2014), which answered that question in the negative. In light of our holding in

Winkelman, we will affirm the District Court‘s order denying Reyes’ petition for a writ of habeas corpus.

Keith M. Donoghue, Esq., Sarah S. Gannett, Esq., Federal Community Defender Office, West Philadelphia, PA, for Appellant.

Joseph J. Khan, Esq., Bernadette A. McKeon, Esq., Office of United States Attorney, Philadelphia, PA, for Appellee.

Before: McKEE, Chief Judge, CHAGARES, and NYGAARD, Circuit Judges.

NYGAARD, Circuit Judge.

The District Court denied Appellant Thomas Reyes’ SHOE petition for a writ of habeas corpus, which he had filed pursuant to 28 U.S.C. § 2255. But, the court granted Reyes a certificate of appealability on the following question: whether the decision of the United States Supreme Court in

Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) applies retroactively to cases on col-

I.

The Gomez Grocery store in Philadelphia, Pennsylvania was robbed and some of its employees assaulted in July of 2006. Appellant Reyes was convicted by a jury of Hobbs Act robbery of that store, a violation of 18 U.S.C. § 1951(a)¹; using a firearm in relation to a crime of violence, a violation of 18 U.S.C. § 924(c); and of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). Reyes was subsequently sentenced to 180 months’ imprisonment, five years of supervised release, a $1,000 fine, and a special assessment of $300. He appealed, challenging only his conviction for Hobbs Act robbery. We rejected his challenge and affirmed his conviction. See

United States v. Reyes, 2010 WL 299222 (3d Cir. Jan. 27, 2010).

After unsuccessfully petitioning the Supreme Court for a Writ of Certiorari, Reyes filed a pro se habeas petition in October of 2011. The District Court appointed counsel for Reyes and conducted a thorough evidentiary hearing. Before the District Court ruled, however, Reyes sought permission to amend his petition, to add claims under the Supreme Court‘s

Alleyne decision. The District Court denied Reyes’ petition, and also denied Reyes’ request to amend his petition to include

the

Alleyne claims. The District Court concluded that

Alleyne did not retroactively apply to cases that were on collateral review, but did issue Reyes a certificate of appealability on the question.

II.

Expounding on our decision in

Winkelman, we reiterate here that the rule of criminal procedure announced by the Supreme Court in

Alleyne does not apply retroactively to cases on collateral review.² In

Alleyne, the Supreme Court overruled its prior precedent,

Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and clarified that, under the Sixth Amendment, “‘any facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime” and must be found beyond a reasonable doubt.

Alleyne, 133 S.Ct. at 2160 (quoting

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)).

At the outset, we note that we did not make a definitive pronouncement in

Winkelman as to whether

Alleyne announced a new rule, so today we clarify that

Alleyne did indeed announce a new rule. See also,

In re Payne, 733 F.3d 1027, 1029 (10th Cir.2013) (internal quotation marks omitted);

Simpson v. United States, 721 F.3d 875, 876 (7th Cir.2013). However, while

Alleyne set out a new rule of law, it is not retroactively applicable to cases on collateral review, like Reyes‘.

When the Supreme Court announces a new rule of law, it generally applies to cases still on direct review. See

Schriro v. Summerlin, 542 U.S. 348, 351-52, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). A new rule will only apply “in limited circumstances” to cases in which the conviction is already finalized, however.

Id.; see also

Teague v. Lane, 489 U.S. 288, 303-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Those limited circumstances arise with new rules “that place particular conduct or persons covered by the statute beyond the State‘s power to punish,” or where the rule announces new “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”

Schriro at 352, 124 S.Ct. 2519 (citations and internal quotation marks omitted);

Teague, 489 U.S. at 307;

United States v. Swinton, 333 F.3d 481, 490 (3d Cir.2003). The new rule announced in

Alleyne falls under neither circumstance. First,

Alleyne announced a procedural, rather than substantive rule. See

Alleyne, 133 S.Ct. at 2164 (Sotomayor, J., concurring) (explaining that in

Alleyne “procedural rules are at issue“);

id. at 2173 n. * (Alito, J., dissenting) (agreeing that

Alleyne involves a procedural rule).

Second,

Alleyne announced no “watershed rule” of criminal procedure. The Supreme Court has noted that “[t]his class of rules is extremely narrow, and it is unlikely that any has yet to emerge.”

Schriro, 542 U.S. at 352, 124 S.Ct. 2519 (internal quotation marks and alterations omitted). Further, every court to consider the issue has concluded that

Alleyne provides only a limited modification to the Sixth Amendment rule announced in

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See

United States v. Redd, 735 F.3d 88, 91-92 (2d Cir.2013);

In re Payne, 733 F.3d at 1029-30;

In re Kemper, 735 F.3d 211, 212 (5th Cir.2013);

Simpson v. United States, 721 F.3d at 876. We agree with the Court of Appeals for the Seventh Circuit, which recently explained that

Apprendi itself and the subsequent rulings applying and extending that decision have not been applied retroactively: ”

Alleyne is an extension of

Apprendi. The Justices have decided that other rules based on

Apprendi do not apply retroactively on collateral review. This implies that the Court will not declare

Alleyne to be retroactive.”

Simpson, 721 F.3d at 876 (citations omitted).

And, of course, the decision to make

Alleyne retroactive rests exclusively with the Supreme Court, which has not chosen to do so. See

Winkelman, 746 F.3d at 136; see also

Simpson, 721 F.3d at 876 (“Unless the Justices themselves decide that

Alleyne applies retroactively on collateral review,” lower courts may not do so.);

United States v. Redd, 735 F.3d 88, 91 (2d Cir.2013). Therefore,

Alleyne does not provide Reyes with any basis for relief because the Supreme Court has not chosen to apply

Alleyne‘s new rule retroactively to cases on collateral review.

Reyes raises several well-trod and meritless arguments in an attempt to persuade us that we should apply

Alleyne‘s new rule to his habeas case. For example, he argues that

Teague does not apply to habeas actions in federal criminal cases because concerns of federalism and comity are not implicated. Instead, he posits that the correct test for retroactivity remains the Supreme Court‘s decision in

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). We disagree. We have long held that

Teague applies to petitions filed pursuant to 28 U.S.C. § 2255. See

Lloyd v. United States, 407 F.3d 608, 611 (3d Cir.2005);

United States v. Jenkins, 333 F.3d 151, 154 (3d Cir.2003). And, the

Linkletter decision was itself rejected by the Supreme Court in

Teague. See

Teague, 489 U.S. at 302-04, 109 S.Ct. 1060;

Banks v. Horn, 316 F.3d 228, 248 (3d Cir.2003) (recognizing the “reformulation” of

Linkletter).

III.

For the foregoing reasons, we will affirm the District Court decision denying Reyes’ petition for a writ of habeas corpus.

NYGAARD

CIRCUIT JUDGE

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UNDER SEAL, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 13-4933.

United States Court of Appeals, Fourth Circuit.

Argued May 15, 2014. Decided June 16, 2014.

Notes

1

In relevant part, the Hobbs Act criminalizes activity that “obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do....” 18 U.S.C. § 1951(a).

2

The District Court had jurisdiction under 28 U.S.C. §§ 2241(a) and 2254(a). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We exercise plenary review over the District Court‘s legal conclusions. See

Coombs v. Diguglielmo, 616 F.3d 255, 260 (3d Cir.2010).

Case Details

Case Name: United States v. Thomas Reyes

Court Name: Court of Appeals for the Third Circuit

Date Published: Jun 18, 2014

Citation: 755 F.3d 210

Docket Number: 13-3537

Court Abbreviation: 3rd Cir.