For Peter Shue: Peter Shue, Glenville, WV.
Before: JACOBS and STRAUB, Circuit Judges, PAULEY, District Judge .
Pro se motion to recall mandates is deemed a successive motion and denied because Alleyne v. United States,
__ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), does not announce a new rule of Constitutional law that has been made retroactive by the Supreme Court.
Peter Shue, pro se, moves to recall this Court's mandates related to his conviction, and to reinstate his direct appeal in order
to seek relief under the Supreme Court's recent holding in Alleyne v. United States,
__ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). He also seeks appointment of counsel. For the reasons stated below, we construe his motion as one for leave to file a successive 28 U.S.C. § 2255 motion, deny it, and deny his motion for appointment of counsel as moot.
Shue was convicted after a jury trial in 1996 of cocaine offenses (conspiracy and attempted distribution) and related gun possession, and sentenced principally to 296 months' imprisonment. This Court affirmed his conviction, United States v. Redd, 116 F.3d 1472, 1997 WL 346147 (Table) (2d Cir.1997), and affirmed the denial of his motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, United States v. Shue, 201 F.3d 433, 1999 WL 1069977 (Table) (2d Cir.1999).
Shue's 2001 motion to vacate his conviction pursuant to § 2255 was denied as time-barred. This Court subsequently denied his two motions for leave to file successive § 2255 motions.
Shue's present motion— to recall our mandates and reinstate his direct appeal— argues that his sentence is unconstitutional in light of the Supreme Court's holding in Alleyne that " any fact that increases the mandatory minimum [sentence] is an ‘ element’ that must be submitted to the jury" and proved beyond a reasonable doubt. 133 S.Ct. at 2155. Shue contends that the district court violated the principle later announced in Alleyne by finding the type and quantity of drugs involved by only a preponderance of the evidence.
" Our power to recall a mandate is unquestioned." Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir.1996). However, this power must be " exercised sparingly," id., and " only in exceptional circumstances," Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 53 (2d Cir.1985). " ‘ The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.’ " British Int'l Ins. Co. v. Seguros La Republica, S.A., 354 F.3d 120, 123 (2d Cir.2003) (quoting Calderon v. Thompson, 523 U.S. 538, 549-50, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998)). This restraint is justified by the " need to preserve finality in judicial proceedings." Sargent, 75 F.3d at 89.
" [W]hen a defendant moves to recall the mandate based on intervening precedent that calls into question the merits of the decision affirming his conviction, we construe the motion as one to vacate the defendant's sentence pursuant to 28 U.S.C. § 2255." United States v. Fabian, 555 F.3d 66, 68 (2d Cir.2009). See also Bottone v. United States, 350 F.3d 59, 63 (2d Cir.2003) (stating that a criminal defendant " cannot evade the successive petition restrictions of 28 U.S.C. § 2255 ... by ...