January 7, 2015
UNITED STATES OF AMERICA, Plaintiff--Appellee,
IGNACIO OLVERA, Defendant--Appellant
Appeal from the United States District Court for the Western District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.
IGNACIO OLVERA, Defendant - Appellant, Pro se, Anthony, TX.
Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit
Ignacio Olvera appeals, pro se and in forma pauperis, the dismissal of his 28 U.S.C. § 2255 motion as time-barred. He claims that an amended judgment, entered after his sentence was modified pursuant to Federal Rule of Criminal Procedure 35(b), recommences the one-year limitations period under § 2255(f)(1). In addition, he maintains that the motion was timely because Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), applies retroactively to cases on collateral review. The district court rejected those arguments and issued a certificate of appealability on both issues. We affirm.
In October 2010, Olvera was sentenced to 168 months' imprisonment after pleading guilty of conspiracy to possess five kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C. § § 841(a) and 846. This court affirmed in August 2011, and Olvera did not petition for a writ of certiorari. In accordance with the government's motion to reduce the sentence under Rule 35(b), the district court entered an amended judgment with a 120-month sentence in December 2012. Olvera filed the § 2255 motion in January 2013.
The district court dismissed the motion as time-barred after finding that (1) it was filed more than one year after he had failed to petition for certiorari in his initial case; (2) the government had not prevented him from timely filing the motion; (3) Alleyne is not retroactively applicable to cases on collateral review and therefore does not alter the limitations period; and (4) Olvera was not entitled to equitable tolling. On appeal Olvera maintains that the court erred by not calculating the limitations period from the time of the amended judgment and that Alleyne is retroactive.
" We review the district court's factual findings relating to a § 2255 motion
for clear error and its conclusions of law de novo." United States v. Redd, 562 F.3d 309, 311 (5th Cir. 2009). Section 2255(f) provides a one-year period in which to file a § 2255(a) motion, running from the later of " the date on which the judgment of conviction becomes final"  or " 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 . . . ." 
A " judgment of conviction becomes final" under § 2255(f)(1) when the Supreme Court " affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires."  Olvera's time to file a certiorari petition expired in November 2011, and his § 2255 motion was filed more than a year later. But he avers that the amended judgment, entered after a sentence modification pursuant to Rule 35(b), re-starts the one-year period.
Although we have not addressed that issue, every circuit to examine it has decided that the limitations period does not renew. We agree: " The plain language of 18 U.S.C. § 3582(b) establishes that a modification of a sentence does not affect the finality of a criminal judgment."  " Notwithstanding the fact that a sentence . . . can subsequently be [modified under Rule 35(b),] . . . a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." 18 U.S.C. § 3582(b)-(c). The one-year period from " the date on which the judgment of conviction becomes final" is one such " other purpose." Because the sentence reduction has no impact on the finality of Olvera's conviction, his motion was untimely under § 2255(f)(1).
Olvera urges that his motion was timely under § 2255(f)(3) because it was filed within one year from the date on which the Supreme Court, in Alleyne, initially recognized the new rule of constitutional law that he contends is retroactively applicable to cases on collateral review. At the time of Olvera's sentencing, either the judge or the jury could decide whether a defendant's
conduct met the requirements for a mandatory-minimum sentence. See Harris v. United States, 536 U.S. 545, 568-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Harris was overruled by Alleyne, which held that, unless waived, " any fact that increases a defendant's mandatory minimum sentence must be submitted to a jury to be proved beyond a reasonable doubt." 
In Kemper this court recognized that the Supreme Court had not made Alleyne retroactively applicable to cases on collateral review, as required to file a successive § 2255 motion under § 2255(h)(2). We reiterate that Alleyne does not apply retroactively. This decision accords with that of every circuit to have examined the issue, none of which has decided that Alleyne is retroactive.
" Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Such rules are " retroactive only if the rule . . . is a 'watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.'"  " The Supreme Court has instructed that a new rule qualifies for 'watershed' status only if it (i) '[is] necessary to prevent an impermissibly large risk of an inaccurate conviction' and (ii) 'alter[s] our understanding of the bedrock procedural elements essential to the fairness of a proceeding.'"  " This class of rules is extremely narrow, and 'it is unlikely
that any . . . ha[s] yet to emerge.'" 
Alleyne extended Apprendi, and " [e]very circuit court to address whether Apprendi applies retroactively . . . has held that it does not."  In United States v. Brown, 305 F.3d 304, 309 (5th Cir. 2002) (per curiam), this court held that Apprendi did not meet the " watershed" exception because " the accuracy improved by Apprendi is in the imposition of a proper sentence rather than the determination of guilt or innocence and that Apprendi did not alter our understanding of bedrock elements essential to a fundamentally fair proceeding." Given that Alleyne is an extension of Apprendi, Brown is equally applicable here. We agree with all of our sister circuits that Alleyne is not within the " watershed" exception.
The dismissal of the § 2255 motion, as time-barred, is AFFIRMED.