- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Habeas Corpus
- Date Filed: 10-23-2014
- Case #: 13-73278
- Judge(s)/Court Below: Circuit Judge Christen for the Court; Circuit Judge R. Smith, Senior District Judge Piersol
- Full Text Opinion
Marcelone Hughes applied for an order allowing him a second, successive habeas corpus action. Hughes argues that the Supreme Court holding in Alleyne should apply retroactively to his case. The Court in Alleyne held, “any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.” However, the Supreme Court never discussed that the holding in that case should be applied retroactively on collateral attack. Hughes indicated in his application that his case should be reviewed under Alleyne for his crime of brandishing a weapon. The panel notes the general rule is that “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” The panel further indicates that a rule can only be made retroactive if it falls within one of the two narrow exceptions. Those exceptions are: (1) [if] the rule is substantive or (2) [if] the rule is a watershed rul[e] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” The panel holds that Hughes argument fails as he has not reached the high bar to establish that the Supreme Court precedent dictates retroactive application of Alleyne. Additionally, it does not fall within the watershed exception. Application DENIED.