United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
RUDY LOZANO, District Judge.
This matter is before the Court on the Motion for Reconsideration filed by Charles Tanner on August 15, 2014. For the reasons set forth below, the motion is DENIED for lack of jurisdiction. Additionally, Tanner's request for a certificate of appealability is DENIED.
On May 27, 2014, Tanner filed a motion pursuant to 28 U.S.C. § 2255(f)(3), citing Alleyne v. United States, 133 S.Ct. 2151 (2013). Tanner asked that he be resentenced pursuant to Alleyne, based only on facts found by the jury. Tanner asked this Court to rule that Alleyne should be made retroactive on collateral review, or in the alternative, that this Court transfer the case to the Seventh Circuit Court of Appeals to decide that issue. On August 6, 2014, this Court issued a very brief order advising Tanner that his submission was a successive motion pursuant to § 2255, that he was obligated to obtain permission from the Seventh Circuit Court of Appeals prior to filing any § 2255 motion in this Court, and in the absence of leave from the Seventh Circuit Court of Appeals, this Court lacked subject matter jurisdiction to entertain his motion. (DE 922).
The instant motion purports to be brought pursuant to Federal Rule of Civil Procedure 59(e). In it, Tanner argues that he is excused from obtaining permission from the Seventh Circuit Court of Appeals to file his subsequent § 2255 because the rule itself allows Tanner's motion. Tanner is referencing 28 U.S.C. § 2255(f)(3), which provides in relevant part that:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review...
Tanner's argument fails for at least two reasons. First, Alleyne has not been made retroactively applicable on collateral review, and this Court cannot rule that Alleyne is retroactive. The Seventh Circuit noted in Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013), a case denying an application for leave to file a successive collateral attack, that the Supreme Court in Alleyne "did not declare that its new rule applies retroactively on collateral attack." Id. Furthermore, with regard to successive motions under § 2255, the only Court that can rule that Alleyne is retroactive is the Supreme Court:
Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Justices have decided that other rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). This implies that the Court will not declare Alleyne to be retroactive. See also Curtis v. United States, 294 F.3d 841 (7th Cir. 2002) ( Apprendi itself is not retroactive). But the decision is the Supreme Court's, not ours, to make. Unless the Justices themselves decide that Alleyne applies retroactively on collateral review, we cannot authorize a successive collateral attack based on § 2255(h)(2) or the equivalent rule for state prisoners, 28 U.S.C. § 2244(b)(2)(A).
Id. Tanner relies on Ashley v. United States, 266 F.3d 671 (7th Cir. 2001), for the proposition that the district court can make an initial determination regarding the retroactivity of a new rule of constitutional law. This reliance is misplaced. The Seventh Circuit in Ashley made a clear distinction between initial petitions and second petitions. Id. at 673. The Court held that a district court could make the determination regarding retroactivity when faced with an initial collateral attack but could not do so with a successive collateral attack. Id.; see also United States v. Levine, 188 F.Supp.2d 1089 (N.D. Ind. 2002)("Defendant's motion to correct his sentence is not an initial collateral attack and determining whether a right is retroactively applicable on a successive collateral attack is still within the province of the Supreme Court.").
Secondly, even if Alleyne were made retroactive, Tanner has already utilized his one opportunity to file a motion pursuant to § 2255 without leave of the Seventh Circuit Court of Appeals. Following a direct appeal, a defendant generally has one opportunity to challenge his conviction and sentence. Suggs v. United States, 705 F.3d 279, 281-82 (7th Cir. 2013); 28 U.S.C. § 2255(a), (h). Should a defendant wish to file a second or successive section 2255 motion challenging that same conviction or sentence, he must first gain authorization to do so from the court of appeals; otherwise, the district court does not have jurisdiction to consider the motion. Suggs, 705 F.3d at 282; 28 U.S.C. §§ 2244(a)-(b), 2255(h). In general, only those successive motions which challenge the underlying conviction and present newly discovered evidence of defendant's innocence or rely on a new retroactive constitutional law will be certified by the court of appeals for district court review. Suggs, 705 F.3d at 282-83; 28 U.S.C. § 2255(h). "No matter how powerful a petitioner's showing, only [the Seventh Circuit Court of Appeals] may authorize the commencement of a second or successive petition." Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). As the Nunez Court explained:
From the district court's perspective, it is an allocation of subject-matter jurisdiction to the court of appeals. A district court must dismiss a second or successive petition, without awaiting any response from the government, unless the court of appeals has given approval for its filing.... A second or successive collateral attack may no more begin in the district court than a criminal prosecution may commence in the court of appeals.
Nunez, 96 F.3d at 991.
Even within one year of a newly recognized right made retroactive by the Supreme Court, Tanner would need leave to file a subsequent § 2255 motion. Nothing in 28 U.S.C. § 2255(f) allows a petitioner to avoid the requirement found in § 2255(h) that second or successive motions must only be brought after obtaining leave from the Seventh Circuit Court of Appeals. Contrary to Tanner's suggestion, the Seventh Circuit Court of Appeals did not hold otherwise in Williams v. United States, No. 13-2530, 2013 WL 8020940 at *2 (7th Cir. Dec. 13, 2013). In Williams, the court determined that a collateral attack that the district court had designated as successive was not actually successive because Williams had been resentenced; therefore, as to the new sentence, his collateral attack was not successive. Id. Tanner has not been resentenced since he filed his prior collateral attack so he cannot take advantage of another opportunity to file a collateral attack without leave of the Seventh Circuit Court of Appeals.
Tanner also cites to Dodd v. United States, 545 U.S. 353 (2005), to support his claim that he need not obtain permission from the Seventh Circuit Court of Appeals prior to filing his motion pursuant to § 2255. However, the Court in Dodd held that the one-year limitations period begins to run from the date the Court "initially recognizes" a right. Id. at 357. In so holding, the Court recognized that its holding would lead to harsh results in some cases where a petitioner was bringing a second or successive § 2255 motion. Id. at 359-60. ("... an applicant who files a second or successive motion seeking to take advantage of a new rule of constitutional law will be time barred except in the rare case in which this Court announces a new rule of constitutional law and ...