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In re Kemper

United States Court of Appeals, Fifth Circuit.
Sep 6, 2013
735 F.3d 211 (5th Cir. 2013)

Summary

holding that Alleyne does not apply retroactively to challenges to sentences on collateral review

Summary of this case from Penson v. United States

Opinion

No. 13–50695.

2013-09-6

In re: Alta Lee KEMPER, Movant.

Alta Lee Kemper, Beaumont, TX, pro se. Motion for an order authorizing the United States District Court for the Western District of Texas to consider a successive 28 U.S.C., § 2255 motion.



Alta Lee Kemper, Beaumont, TX, pro se. Motion for an order authorizing the United States District Court for the Western District of Texas to consider a successive 28 U.S.C., § 2255 motion. Before KING, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:

Alta Lee Kemper, federal prisoner # 59786–080, moves for authorization to file a successive 28 U.S.C. § 2255 motion challenging his jury conviction for possession with intent to distribute cocaine base and his life sentence. He seeks to raise a claim that the district court violated his Sixth Amendment rights when it enhanced his sentence under U.S.S.G. § 4B1.1.

To obtain authorization, Kemper must make a prima facie showing that his proposed § 2255 motion relies upon either “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense,” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” § 2255(h); 28 U.S.C. § 2244(b)(3)(C).

According to Kemper, his claim relies on a new rule of law set forth in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that he contends is retroactively applicable to cases on collateral review. Kemper cites United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and argues that this combination of decisions demonstrates that the Supreme Court has made Alleyne retroactively applicable to cases on collateral review.

In Alleyne, the Supreme Court held that any fact that increases a defendant's mandatory minimum sentence must be submitted to a jury to be proved beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Only the Supreme Court can render a new rule retroactively applicable to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 662–63, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). Alleyne is a direct criminal appeal, see Alleyne, 133 S.Ct. at 2155–56, and therefore did not involve a retroactive application of a rule on collateral review. Moreover, the Supreme Court did not declare that Alleyne applies retroactively on collateral review. Kemper has also failed to show that the Supreme Court has made Booker,Blakely,Ring, and Apprendi retroactively applicable to cases on collateral review. See Foster v. Quarterman, 466 F.3d 359, 369–70 (5th Cir.2006) (stating that Blakely,Ring, and Apprendi are not retroactively applicable to cases on collateral review); In re Elwood, 408 F.3d 211, 213 (5th Cir.2005) (stating that Booker is not retroactively applicable to cases on collateral review). Kemper thus has not met the standard to obtain authorization to file a successive § 2255 motion. See § 2255(h).

IT IS ORDERED that Kemper's motion for authorization to file a successive § 2255 motion is DENIED.


Summaries of

In re Kemper

United States Court of Appeals, Fifth Circuit.
Sep 6, 2013
735 F.3d 211 (5th Cir. 2013)

holding that Alleyne does not apply retroactively to challenges to sentences on collateral review

Summary of this case from Penson v. United States

holding the Supreme Court's decision in Alleyne did not retroactively apply to defendant's challenge to sentence on collateral review, where Alleyne was a direct criminal appeal that did not involve retroactive application, and the Supreme Court did not declare Alleyne applied retroactively on collateral review

Summary of this case from Perkins v. United States

holding that Alleyne does not apply retroactively on collateral review

Summary of this case from Puzey v. United States

finding Alleyne was a direct criminal appeal that did not involve retroactive application and the Supreme Court did not declare Alleyne applied retroactively on collateral review

Summary of this case from Pugh v. Low

denying motion to file a second or successive § 2255 motion

Summary of this case from Martinez v. United States

denying successive § 2255 motion attempting to invoke Alleyne retroactively

Summary of this case from Reza v. United States

explaining "[o]nly the Supreme Court can render a new rule retroactively applicable to cases on collateral review" and noting the Court did not do so in Alleyne

Summary of this case from Thompson v. United States
Case details for

In re Kemper

Case Details

Full title:In re: Alta Lee KEMPER, Movant.

Court:United States Court of Appeals, Fifth Circuit.

Date published: Sep 6, 2013

Citations

735 F.3d 211 (5th Cir. 2013)

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