August 17, 2019

Tenth Circuit: Alleyne Does Not Apply Retroactively

The Tenth Circuit Court of Appeals published its opinion in In re Payne on Tuesday, September 17, 2013.

James Edward Payne moved for authorization to file a second or successive motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Payne pled guilty to conspiracy to manufacture less than fifty grams of a mixture or substance containing methamphetamine and was sentenced to 240 months’ of imprisonment. Although he did not appeal, he filed a § 2255 motion asserting various claims that were dismissed or denied by the district court.

Payne sought authorization to file a second § 2255 motion. He contended that the Supreme Court’s recent decision in Alleyne v. United States entitled him to authorization. Authorization will only be granted when a second or successive § 2255 claim is based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” The Tenth Circuit held that Alleyne did create a new rule of constitutional law but did not apply retroactively and denied authorization.


U.S. Supreme Court Denies Review of Veterans’ Benefits Petition

On Monday, January 7, 2013, the Supreme Court of the United States denied a petition for review of a May Ninth Circuit Court of Appeals decision regarding the processing of medical benefits for veterans. The denial by the Court effectively affirms the Ninth Circuit’s decision that the judicial branch lacks authority to decide such appeals.

The case was originally brought by veterans’ advocacy groups in 2007.  After a bench trial in 2008, United States District Judge Samuel Conti concluded that the court did not have jurisdiction over the appeals, citing the Veterans’ Judicial Review Act and noting that the court lacked power to remedy the wrongs against veterans documented by “voluminous” evidentiary submissions to the court. Veterans for Common Sense v. Peake, 563 F. Supp. 2d 1049 (N.D. Ca. 2008). 

A panel of the Ninth Circuit overturned that decision in 2011, ordering that, because of the serious nature of the claims, veterans groups could ask the court to order changes in the system. Veterans for Common Sense v. Shinseki, 644 F.3d 845 (9th Cir. 2011). Upon request for a new hearing before a larger panel, however, that ruling was reversed.

The full panel of the Ninth Circuit determined that it did not have jurisdiction to hear the appeal.

[W]e lack jurisdiction to afford such relief because Congress, in its discretion, has elected to place judicial review of claims related to the provision of veterans’ benefits beyond our reach and within the exclusive purview of the United States Court of Appeals for Veterans Claims and the Court of Appeals for the Federal Circuit. . . . As much as we as citizens are concerned with the plight of veterans seeking the prompt provision of the health care and benefits to which they are entitled by law, as judges we may not exceed our jurisdiction.

Veterans for Common Sense v. Shinseki, 678 F.3d 1013, 1016 (9th Cir. 2012). In September, the plaintiff veterans organizations submitted a petition for writ of certiorari to the United States Supreme Court, asking the Court to rule on whether the Veterans Judicial Review Act allows veterans to challenge in federal court the systemic delays in the VA’s provision of mental health care and death and disability compensation. That petition was denied on Monday, January 7, 2013. Plaintiff group Veterans for Common Sense issued a statement in response to the denial, stating in part

We are deeply disappointed the Court did not hear the urgent plea of suicidal Veterans who face delays of months, and often years, seeking VA assistance.  Although significant improvements were made in some areas within VA, such as a suicide hotline set up after our lawsuit that rescued 23,000 distraught Veterans, the nation’s second largest department remains in deep crisis.

The Colorado Bar Association, in conjunction with several bar associations across the state, has established Colorado Lawyers for Colorado Veterans, a service where veterans can meet with an attorney regarding their legal issues free of charge. Attorneys wishing to assist with this program can contact Carolyn Gravit.

Eligibility for VA benefits and appeals processes will be discussed at the January 31, 2013 program, “Fundamentals of Practicing Before the Veterans’ Administration 2013.” This three-hour program will take place at 9 a.m. at the CLE offices. It qualifies for the VA three-hour training requirement for attorneys who wish to represent veterans before the Veterans’ Administration. Attorneys can attend for a significantly reduced rate by taking a pro bono case. Click here for registration information.

CLE Program: Fundamentals of Practicing Before the Veterans’ Administration 2013

This CLE presentation will take place on Thursday, January 31, 2013, at 9:00 a.m. Click here to register for the live program, and click here to register for the webcast.

Can’t make the live program? Click here to order the homestudy.