In Re: Curtis Rhine ( 2015 )

Case: 14-10708 Document: 00512902418 Page: 1 Date Filed: 01/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10708
United States Court of Appeals
Fifth Circuit
FILED
January 14, 2015
Lyle W. Cayce
In re: CURTIS ONEAL RHINE, Clerk
Movant
Motion for an order authorizing
the United States District Court for the
Northern District of Texas, Fort Worth to consider
a successive 28 U.S.C. § 2255 motion
Before PRADO, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Curtis Oneal Rhine, federal prisoner # 36888-177, seeks authorization to
file a successive 28 U.S.C. § 2255 motion to challenge his convictions and
sentences for possession with intent to distribute cocaine base and possession
of a firearm by a felon. If granted authorization, Rhine intends to argue that
he was not convicted of any involvement in a certain drug trafficking ring and
that the district court nonetheless used this involvement to enhance his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-10708
sentence. Additionally, he seeks to argue that his counsel provided ineffective
assistance by failing to file a motion to suppress.
This court may authorize the filing of a second or successive § 2255
motion only if the movant makes a prima facie showing that his claims rely on
either (1) “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 (2) “a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h); see also 28 U.S.C. § 2244(b)(3)(C). Rhine does not contend that his
claims rely on newly discovered evidence. Instead, he argues that the Supreme
Court established new rules of constitutional law in Alleyne v. United States,
133 S. Ct. 2151 (2013), and in Descamps v. United States, 133 S. Ct. 2276
(2013).
In re Jackson makes clear that “[w]hen a movant relies on a new rule of
constitutional law to make the showing required under § 2255(h)(2), he ‘must
point to a Supreme Court decision that either expressly declares the collateral
availability of the rule (such as by holding or stating that the particular rule
upon which the petitioner seeks to rely is retroactively available on collateral
review) or applies the rule in a collateral proceeding.’” No. 14-30805, ___ F.3d
___, 2015 WL 127370, at *1 (5th Cir. Jan. 8, 2015) (per curiam) (quoting In re
Smith, 142 F.3d 832, 835 (5th Cir. 1998), and citing In re Tatum, 233 F.3d 857,
859 (5th Cir. 2000) (per curiam)). The Supreme Court has not made Alleyne
retroactively applicable to cases on collateral review. In re Kemper, 735 F.3d
211, 212 (5th Cir. 2013) (per curiam). Likewise, Descamps has not been made
retroactively applicable to cases on collateral review and “does not provide a
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No. 14-10708
basis for [Rhine’s] successive § 2255 motion.” In re Jackson, 2015 WL 127370,
at *3.
Accordingly, IT IS ORDERED that Rhine’s motion for authorization to
file a successive § 2255 motion is DENIED.
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