UPDATED

First, my original post:

Last year, Alleyne v. United States expanded the rule of Apprendi to hold that facts that increase the prescribed range of punishment must be found by jury beyond a reasonable doubt. Earlier this year, CA3 held in US v. Winkelman that Alleyne does not apply to defendants whose convictions already are final. Today, the court reiterated that Alleyne is not retroactive, and clarified that Alleyne is a new rule.

The case is US v. Reyes. Opinion by Nygaard, joined by McKee and Chagares. It was decided on the briefs.

Ho hum. But, now, what I missed:

Reyes said it was only reiterating Winkelman, and Winkelman said it held that Alleyne does not apply on collateral review, but actually Winkelman was only a successor case, by both its facts and reasoning. (Not a habeas nerd? Collateral means all habeas corpus petitions, successor means only that subset of habeas petitions filed by people who’ve already lost a habeas in the same case; so a ruling that applies only to successors is narrow, one that applies to all collaterals is broad.) So Winkelman’s outcome, denying the successor, may have been defensible, but its stated holding was not.

But here’s the startling part: Reyes actually doubles down on its Winkelman error.  Reyes says:

[O]f course, the decision  to make Alleyne
retroactive rests exclusively with the Supreme Court, which
has not chosen to do so.  See Winkelman, 746 F.3d at 136; see
also Simpson, 721 F.3d at 876 (“Unless the Justices
themselves decide that  Alleyne  applies retroactively on
collateral review,” lower courts may not do so.);  United
States v. Redd,  735 F.3d 88, 91 (2d Cir. 2013).  Therefore,
Alleyne  does not provide Reyes  with any basis for relief
because the Supreme Court has not chosen to apply  Alleyne’s
new rule retroactively to cases on collateral review.

Slip op. at 6. This is buck-naked wrong. The decision to make Alleyne retroactive rests exclusively with the Supreme Court only as to successors, per 28 USC 2244(b)(2)(A), a provision that does not apply to non-successor collateral cases like Reyes. Simpson and Redd, like Winkelman, are successor cases, not collateral cases. The court will have to grant rehearing in this case to correct this error.

My sincere thanks to Peter Goldberger (who has forgotten more case law than I’ll ever know) for pointing out what I’d missed.