Dwight Daryl Owens v. United States , 598 F. App'x 736 ( 2015 )

Case: 14-10221 Date Filed: 03/06/2015 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10221
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:13-cv-01780-RWS; 1:09-cr-00286-RWS-JFD-1
DWIGHT DARYL OWENS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 6, 2015)
Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.
PER CURIAM:
Case: 14-10221 Date Filed: 03/06/2015 Page: 2 of 3
A jury convicted Dwight Daryl Owens of two crimes: (1) robbery in
violation of 18 U.S.C. § 1951 (count 1), and (2) using a firearm during and in
relation to that robbery, in violation of 18 U.S.C. § 924(c) (count 2). The district
court sentenced Owens to consecutive terms of imprisonment of 180 months on
count 1 and 120 months on count 2, for a total term of 300 months. Owens
appealed his convictions, and we affirmed them.
Owens then filed a timely motion to vacate his sentence under 28 U.S.C.
§ 2255. Among other things, Owens contended that his 120-month sentence on
count 2 was unconstitutional in light of the Supreme Court’s decision in Alleyne v.
United States, 570 U.S. ___, 133 S. Ct. 2151 (2013). The district court determined
that Alleyne did not apply retroactively on collateral review, denied Owens’
motion, and declined to issue a certificate of appealability (COA). We issued a
COA on two issues: (1) whether Alleyne applies retroactively, and (2) if so,
whether Owens’ sentence is unconstitutional.
We review de novo whether a case applies retroactively on collateral review.
See United States v. Swindall, 107 F.3d 831, 833 (11th Cir. 1997). See generally
Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). But if we have already
decided that a case does not apply retroactively on collateral review, we are bound
by that decision unless the Supreme Court or this Court sitting en banc overrules it.
See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir. 1998).
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Case: 14-10221 Date Filed: 03/06/2015 Page: 3 of 3
In Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir. 2014), we
decided that Alleyne does not apply retroactively on collateral review and affirmed
a district court’s denial of a prisoner’s petition under 28 U.S.C. § 2241 on that
basis. 1 Our decision in Jeanty controls this case. 2
AFFIRMED. 3
1
Notably, every circuit to have considered the issue has said that Alleyne does not apply
retroactively on collateral review. See Hughes v. United States, 770 F.3d 814, 818–19 (9th Cir.
2014); In re Mazzio, 756 F.3d 487, 489–91 (6th Cir. 2014); United States v. Winkelman, 746
F.3d 134, 136 (3d Cir. 2014); In re Kemper, 735 F.3d 211, 212 (5th Cir. 2013); United States v.
Redd, 735 F.3d 88, 91–92 (2d Cir. 2013); In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013);
Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013).
2
Because we conclude that Alleyne does not apply retroactively on collateral review, we
do not consider what the result in Owens’ case would be if it did.
3
Owens’ motion for leave to file a reply brief out of time is GRANTED.
3