Two brothers in United States v. Winkleman, Nos. 03-4500, 03-4753, filed motions in the Third Circuit requesting that it recall its mandate and reinstate their direct appeals so they could try to seek relief under Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013). Alleyne held 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. The Court construed the motions as successive collateral attacks on the Winklemans’ convictions and sentences under 28 U.S.C. § 2255.
A second or successive § 2255 petition is only authorized if it is based on newly discovered evidence or a new rule of constitutional law, "made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Even if Alleyne announced a new rule of law, the Supreme Court has not made it retroactive to cases on collateral review. It is not a new substantive rule that places certain private activity beyond the reach of the criminal laws and it is not a watershed rule of criminal procedure that alters "our understanding of the bedrock procedural elements" of the adjudicatory process.
For those proceeding outside the successive petition context, it may be possible to argue that the Court's statement that Alleyne is not a watershed rule is dictum, since it was not necessary to the Court's ruling on retroactivity for successors under Tyler v. Cain, 533 U.S. 656, 668 (2001).