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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-31162

IN RE: BILLY RAY TATUM,
Movant.
--------------------
Motion for an order authorizing
the United States District Court for the Western
District of Louisiana to consider
a successive 28 U.S.C. з 2255 motion
--------------------
November 15, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
BY THE COURT:
Billy Ray Tatum has filed a motion with us, seeking
authorization to file a successive 28 U.S.C. з 2255 motion in
district court to vacate, set aside, or correct his sentence.
Tatum proposes to argue in district court that his conviction and
sentence under 21 U.S.C. з 841 are unconstitutional because the
type and quantity of drugs he possessed are elements of the offense
and therefore should have been alleged in the indictment, presented
to a jury, and proved beyond a reasonable doubt. Tatum grounds his
assertions in the Supreme Court's recent decision in Apprendi v.
New Jersey, 120 S. Ct. 2348, 2362-63 (2000). Tatum also cites
Castillo v. United States, 120 S. Ct. 2090 (2000), and Jones v.
United States, 526 U.S. 227 (1999), in support of his argument. We
deny his motion.

I
FACTS AND PROCEEDINGS
In 1992, Tatum was convicted pursuant to a guilty plea of (1)
possessing with the intent to distribute cocaine and cocaine base
in violation of 21 U.S.C. з 841(a)(1) and (2) of using and carrying
a firearm during a drug-trafficking offense in violation of 18
U.S.C. з 924(c). He was sentenced to 193 months' and 22 days'
imprisonment for the possession offense and 60 months' imprisonment
for the weapons offense, to run consecutively. Tatum did not file
a direct appeal.
Tatum filed his first motion for з 2255 relief on January 7,
1993. The district court denied Tatum's motion and we affirmed
that denial. Tatum subsequently filed a number of з 2255 motions,
all of which were denied.
II
ANALYSIS
Before a successive 28 U.S.C. з 2255 motion may be filed in
district court, the movant must obtain authorization from this
court for the district court to consider the movant's successive з
2255 motion. 28 U.S.C. зз 2244(b)(3)(A), 2255. We may authorize
the filing of a successive з 2255 motion in the district court only
if the movant makes a prima facie showing to us that his claim
relies on either (1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty of the underlying offense;
2

or (2) a new rule of constitutional law that was previously
unavailable has been made retroactive by the Supreme Court to cases
on collateral review. 28 U.S.C. зз 2244(b)(3)(C) and 2255; see
United States v. Rich, 141 F.3d 550, 553 (5th Cir. 1998).
Tatum does not argue that any of his proposed claims are based
on newly discovered evidence. Rather, he contends that he is
entitled to file a successive з 2255 motion because his claims are
based on a new rule of constitutional law that the Supreme Court
has made retroactive to cases on collateral review.
The cases on which Tatum relies do not, however, set forth new
rules of constitutional law that the Supreme Court made retroactive
to cases on collateral review. In Jones, the Supreme Court
reviewed a federal car-jacking statute which provided increased
penalties if the car-jacking offense involved serious bodily injury
or death. The Court held that the statutory facts of serious
bodily injury or death are elements of the offense, not mere
sentencing factors. Jones, 526 U.S. at 229-30, 251-52. Jones was
decided largely on statutory construction grounds, and the Court
expressly stated that it was not announcing a rule of
constitutional law but was "merely interpret[ing] a particular
federal statute . . . ." Id. at 252 n.11.
In Castillo, the Supreme Court interpreted 18 U.S.C.
з 924(c)(1). The Court held that, by its references to particular
types of firearms, Congress intended to define a separate,
aggravated crime not simply to authorize an enhanced penalty.
Castillo, 120 S. Ct. at 2096.
3

In Apprendi, the Court confirmed its earlier holding in Jones
and held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Apprendi, 120 S. Ct. at 2362-63.
Tatum cannot show that the holdings in any of the cases on
which he relies were made to apply retroactively on collateral
review by the Supreme Court. When seeking leave to file a
successive з 2255 motion on the basis of a new rule of
constitutional law, a movant "must point to a Supreme Court
decision that either expressly declares the collateral availability
of the rule . . . or applies the rule in a collateral proceeding."
In re Smith, 142 F.3d 832, 835 (5th Cir. 1998)(internal quotation
marks and citation omitted). Apprendi, Castillo, and Jones did not
involve collateral proceedings. See Apprendi, 120 S. Ct. at
2352-54 (detailing procedural history); Castillo, 120 S. Ct. at
2091-92 (same); Jones, 526 U.S. at 229-32 (same). Neither has the
Court expressly stated that the holdings in any of those cases are
to be applied retroactively to cases on collateral review. Tatum
has not identified any Supreme Court opinion that makes those cases
apply retroactively on collateral review and we have failed to find
any on our own.
Tatum has not met the statutory requirements for filing a
successive 28 U.S.C. з 2255 motion. His motion for authorization
to file a successive 28 U.S.C. з 2255 motion is therefore DENIED.
4