In the

United States Court of Appeals
              For the Seventh Circuit

No. 13-2373

L EVENCE S IMPSON,
                                                            Applicant,
                                 v.

U NITED S TATES OF A MERICA,
                                                          Respondent.


       Application for an Order Authorizing a District Court
       to Entertain a Successive Petition for Collateral Relief



      S UBMITTED JUNE 27, 2013—D ECIDED JULY 10, 2013




   Before E ASTERBROOK, Chief Judge, and F LAUM and
R IPPLE, Circuit Judges.
  E ASTERBROOK, Chief Judge. Levence Simpson was con-
victed of drug offenses and sentenced to 240 months’
imprisonment, which the district court found to be the
statutory minimum. See 21 U.S.C. §841(b)(1)(A). We
affirmed. 

(7th Cir. 2003). Simpson filed and
lost a collateral attack under 28 U.S.C. §2255, in which
he contended that his lawyer had furnished ineffective
assistance. 2006 U.S. Dist. L EXIS 27409 (C.D. Ill. May 9,
2                                                 No. 13-2373

2006), application for certificate of appealability denied,
2006 U.S. Dist. L EXIS 59450 (C.D. Ill. Aug. 22, 2006). Three.
years later he filed a second collateral attack, which the
district court dismissed as lacking the required appellate
authorization. 2009 U.S. Dist. L EXIS 113836 (C.D. Ill. Dec. 7,
2009).
  At the time of Simpson’s sentencing, either the judge
or the jury could decide whether a defendant’s conduct
met the requirements for a mandatory minimum sen-
tence. Harris v. United States, 

(2002). But
Alleyne v. United States, No. 11-9335 (U.S. June 17, 2013),
overrules Harris and holds that a judge cannot make
this decision unless the defendant waives his entitle-
ment to a jury. (A jury also is unnecessary if the
defendant admits facts that require a minimum sentence,
but Simpson did not do that.) Simpson contends that
Alleyne entitles him to pursue a second collateral attack
because it establishes a new constitutional rule. 28 U.S.C.
§2255(h)(2).
  Simpson proposes another attack on the quality of his
legal assistance, which is barred by 28 U.S.C. §2244(b)(1).
See Bennett v. United States, 

(7th Cir. 1997).
But he also seeks permission to make a claim resting
directly on the jury clause of the sixth amendment, the
basis of Alleyne. That theory is unaffected by §2244(b)(1).
  Alleyne establishes a new rule of constitutional law. But
we deny Simpson’s application nonetheless, for two
reasons.
  First, §2255(h)(2) applies only when the new rule has
been “made retroactive to cases on collateral review by
No. 13-2373                                               3

the Supreme Court”. The declaration of retroactivity
must come from the Justices. See Dodd v. United States,

(2005); Tyler v. Cain, 

(2001). The
Court resolved Alleyne on direct rather than collateral
review. It did not declare that its new rule applies retro-
actively on collateral attack.
  Alleyne is an extension of Apprendi v. New Jersey, 

(2000). The Justices have decided that other
rules based on Apprendi do not apply retroactively on
collateral review. See Schriro v. Summerlin, 

(2004). This implies that the Court will not declare
Alleyne to be retroactive. See also Curtis v. United States,

(7th Cir. 2002) (Apprendi itself is not retro-
active). But the decision is the Supreme Court’s, not
ours, to make. Unless the Justices themselves decide
that Alleyne applies retroactively on collateral review, we
cannot authorize a successive collateral attack based on
§2255(h)(2) or the equivalent rule for state prisoners,
28 U.S.C. §2244(b)(2)(A).
   Second, Simpson could not benefit even if Alleyne
already had been declared retroactive, because the jury
in his case returned a special verdict finding that he
conspired to distribute more than one kilogram of
heroin and more than 50 grams of crack. The judge later
estimated his relevant conduct at 3.4 kilograms of
heroin and 300 grams of crack, but the jury’s verdict by
itself requires a 240-month minimum sentence under
§841(b)(1)(A) as it stood when Simpson committed
his crimes.
  The application therefore must be denied. Simpson
has asked us to give him 30 days to file a supplemental
4                                               No. 13-2373

memorandum supporting his application, but delay
would be both pointless (the two reasons we have
given are independently fatal to his application) and
unlawful: Congress requires courts to act within 30 days
on requests to file additional collateral attacks. 28 U.S.C.
§2244(b)(2)(D). We are not authorized to extend such
deadlines. See, e.g., Miller v. French, 

(2000).
  The motion for additional time to file a memorandum
is denied. The application for leave to file another col-
lateral attack is dismissed.




                           7-10-13