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                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-13693
                             Non-Argument Calendar
                           ________________________

                   D.C. Docket Nos. 8:13-cv-02012-EAK-MAP,
                          8:05-cr-00355-EAK-MAP-1

LEON KING,

                                                                Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                               Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                  (April 28, 2015)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Leon King, a federal prisoner proceeding with appointed counsel, appeals

the district court’s denial of his 28 U.S.C. § 2255 motion as time-barred. A judge

of this Court granted King a certificate of appealability on the following issue:
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      Whether Mr. King’s 28 U.S.C. § 2255 motion is timely under § 2255(f)(3)
      because Alleyne v. United States, 570 U.S. ___, 

(2013), and
      Descamps v. United States, 570 U.S. ___, 

(2013), are
      retroactively applicable to cases on collateral review.

After careful review, we affirm.

      We review de novo the district court’s determination that a § 2255 motion is

time-barred. Drury v. United States, 

, 1296 (11th Cir. 2007). The

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-

year statute of limitations for filing a § 2255 motion that begins to run from the

latest of, inter alia, “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.” 28 U.S.C. § 2255(f)(1), (3).

Any court may determine that a Supreme Court decision applies retroactively for

purposes of § 2255(f)(3). See Dodd v. United States, 

, 1278 (11th

Cir. 2004), aff’d on other grounds, 

(2005).

      When a Supreme Court decision results in a new constitutional rule, this rule

applies to all criminal cases pending on direct review but applies to convictions

that are already final only in limited circumstances. See Schriro v. Summerlin, 

, 351 (2004). In deciding retroactivity issues under § 2255(f)(3), a court

must first find whether the Supreme Court decision in question announced a “new

rule.” Teague v. Lane, 

, 300-01 (1989); Howard v. United States, 374
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, 1073-74 (11th Cir. 2004). If a court determines that a Supreme Court

decision announces a new constitutional rule, it must then determine whether that

new rule satisfies an exception to the general prohibition against the retroactive

application of new rules to cases on collateral review. See 

–10. New substantive rules generally apply retroactively, while new rules of

criminal procedure generally do not. 

–52.

      A rule is substantive, as opposed to procedural, if it “narrow[s] the scope of

a criminal statute by interpreting its terms” or is a “constitutional determination[]

that place[s] particular conduct or persons covered by the statute beyond the

State’s power to punish.” See 

(explaining that a new rule modifying

the elements of an offense is normally substantive because new elements “alter the

range of conduct the statute punishes, rendering some formerly unlawful conduct

lawful or vice versa”); see also Bryant v. Warden, FCC Coleman-Medium, 

, 1278 (11th Cir. 2013).       New substantive rules apply retroactively

because they “necessarily carry a significant risk that a defendant stands convicted

of an act that the law does not make criminal or faces a punishment that the law

cannot impose upon him.” 

(quotation omitted).

      New rules of criminal procedure, by contrast, are those that “regulate only

the manner of determining the defendant’s culpability,” such as by allocating

decisionmaking authority as to who must find the “essential facts bearing on


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punishment.” 

(emphasis omitted).        New rules of procedure “do not

produce a class of person convicted of conduct the law does not make criminal, but

merely raise the possibility that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.” 

Procedural rules thus

produce a “more speculative connection to innocence” than do substantive rules,

and courts give retroactive effect to “only a small set of watershed rules of criminal

procedure.”   

see 

–12.            The

Supreme Court has explained that in order to qualify as a watershed rule, a

decision must satisfy two requirements. First, it must “alter our understanding of

the bedrock procedural elements essential to the fairness of a proceeding.”

Whorton v. Bockting, 

, 418 (2007) (quotation omitted); see 

. Second, it must announce a rule “without which the likelihood of

an accurate conviction is seriously diminished.”          

(quotation omitted) (emphasis omitted).

      In Alleyne, the Supreme Court revisited two of its prior cases: (1) Apprendi

v. New Jersey, 

(2000), which requires that any fact that increases the

penalty for a crime beyond the prescribed statutory maximum, other than the fact

of a prior conviction, be submitted to a jury and proved beyond a reasonable doubt;

and (2) Harris v. United States, 

(2002), which held that judicial

factfinding that increased the applicable statutory mandatory minimum sentence


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was permissible under the Sixth Amendment. See 

–58.

In Alleyne, the Supreme Court expressly overturned Harris because it was

inconsistent with its decision in Apprendi, and it determined that any facts that, by

law, increase the applicable statutory mandatory minimum sentence for a crime

constitutes an element of the crime that must be submitted to a jury and found

beyond a reasonable doubt. 

2163.

      In Jeanty v. Warden, FCI Miami, we said that “Alleyne does not apply

retroactively on collateral review.”     

, 1285 (11th Cir. 2014)

(reviewing the denial of a 28 U.S.C. § 2241 petition and the application of §

2255(e)’s savings clause). We explained that “neither Alleyne itself nor any later

Supreme Court decision [held] that Alleyne is retroactive,” and that in fact the

Alleyne Court had explained that its holding was an application of the Apprendi

rule. 

noted that we had repeatedly held that the Apprendi rule did not

apply retroactively on collateral review, and, thus, “neither [does] a decision

applying its rule.” 

see, e.g., McCoy v. United States, 

, 1258 (11th Cir. 2001).

      Descamps addressed the process for determining whether a defendant’s prior

conviction qualified as a violent felony for purposes of enhancing his sentence

under the Armed Career Criminal Act (“ACCA”).             See 

–82. The Descamps Court recounted that a court may, in the case of a


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“divisible” statute (that is, one that sets out one or more elements of the offense in

the alternative), apply a “modified categorical approach” to determine which of the

statutory alternatives formed the basis of the defendant’s prior conviction for

purposes of determining whether a prior conviction is a predicate conviction for an

enhanced sentence. See 

held that sentencing courts may

not apply the modified categorical approach to prior convictions under

“indivisible” statutes, meaning statutes that have a “single, indivisible set of

elements.”   

indivisible statutes must be analyzed using the

categorical approach, meaning that courts compare the elements of the statute

forming the basis of the defendant’s prior conviction with the elements of the

generic crime. 

Court discussed Taylor v. United States, 

(1990), which had adopted a “formal categorical approach,” and

explained that Taylor recognized a hypothetical “narrow range of cases” --

involving statutes with alternative elements, or divisible statutes -- in which

sentencing courts would use a modified categorical approach to look beyond the

statutory elements of a conviction. 

–84 (quotation omitted).

The Descamps Court explained that the hypothetical type of cases discussed in

Taylor became real in Shepard v. United States, 

, 16 (2005), which

“authorized sentencing courts to scrutinize a restricted set of materials” to decide

whether a defendant’s prior conviction under a divisible burglary statute qualified


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as an ACCA predicate 

. The Descamps Court

explained that its caselaw involving the categorical approach and modified

categorical approach involving the ACCA “all but resolve[d]” the instant case

because, applying the modified categorical approach in “the only way [it has] ever

allowed . . . merely helps implement the categorical approach when a defendant

was convicted of violating a divisible statute.” 

2287–89.

        In this case, as in Jeanty, Alleyne is not retroactively applicable on collateral

review. See 

–86. Although King argues that Jeanty is

distinguishable because it only addressed the “jury component” of the Alleyne rule

and not the “reasonable doubt component,” this argument is meritless because

Alleyne announced a single holding -- that a fact that increases the statutory

minimum sentence is an element of the crime. See 

,

2163.    Alleyne did not announce separate rules about jury submission or the

standard of proof, as both are merely consequences of the Supreme Court’s holding

that facts are elements of the crime if they increase the statutory minimum

sentence. See 

Further, our opinion in Jeanty did not distinguish

between portions of Alleyne, but rather addressed its retroactivity generally. See

–86. Thus, Alleyne is not retroactively applicable to cases

on collateral review.

        As for Descamps, it is not a new rule. It merely applied prior precedent to


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reaffirm that courts may not use the modified categorical approach to determine

whether convictions under indivisible statutes are predicate ACCA violent

felonies. See 

–85. Descamps is thus unlike other

Supreme Court decisions construing the phrases “violent felony” or “crime of

violence” and limiting the types of convictions that qualify as such, which did

pronounce new substantive rules. See Begay v. United States, 

, 143

(2008) (narrowing one portion of the definition of a crime of violence for purposes

of the career offender guidelines); Chambers v. United States, 

(2009)

(narrowly construing “violent felony” under the ACCA to exclude failure to report

for incarceration as qualifying as an escape from a penal institution); Zack v.

Tucker, 

, 925-26 (11th Cir.) (stating that both Begay and Chambers

apply retroactively on collateral review), cert. denied 

(2013).

      For these reasons, neither Alleyne nor Descamps apply retroactively on

collateral review as required by § 2255(h)(2), and, thus, King’s § 2255 motion was

not timely under § 2255(f)(3).

      AFFIRMED.




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