UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-20590-RAR

(18-CR-20664-RAR)

FABIAN ANTHONY PERPALL, 

 Movant, 

v. 

UNITED STATES OF AMERICA, 

Respondent. 

_______________________________/ 

ORDER STAYING PENDING SECTION 2255 PROCEEDINGS

THIS CAUSE comes before the Court on Movant’s Motion to Vacate under 28 U.S.C. § 

2255 (“Mot.”). [ECF No. 1]. Movant raises two claims of “newly discovered evidence” related 

to the “sworn affidavit” of Lamont Riley. See Riley Affidavit [ECF No. 1-2] at 13–15. This 

Motion, however, is not Movant’s first § 2255 motion to vacate. Movant previously filed a § 2255 

motion on August 30, 2022, in Case No. 22-CV-22770. See Motion to Vacate, Perpall v. United 

States, No. 22-CV-22770 (S.D. Fla. Aug. 30, 2022), ECF No. 1. Although the Court denied that

motion on its merits, see Perpall v. United States, No. 22-CV-22770, 2022 WL 17551101, at *10 

(S.D. Fla. Dec. 9, 2022), Movant appealed that decision to the United States Court of Appeals for 

the Eleventh Circuit, see generally Perpall v. United States, No. 23-10013 (11th Cir. Jan. 3, 2023).

The Court has the obligation “to look behind the label of a motion filed by a pro se inmate 

and determine whether the motion is, in effect, cognizable under a different statutory framework.” 

United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990). Movant’s intent is clear—to bring 

new claims on collateral review that had not been previously raised in his original § 2255 motion. 

But under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a prisoner is 

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generally barred from filing a second or successive motion to vacate. See Panetti v. Quarterman, 

551 U.S. 930, 947 (2007) (“In the usual case, a petition filed second in time and not otherwise 

permitted by the terms of § 2244 will not survive AEDPA’s ‘second or successive’ bar.”). 

Nevertheless, for the foregoing reasons, the Court concludes that the instant Motion should be 

reconstrued as a FED. R. CIV. P. 15(a) motion to amend in Case No. 22-CV-22770 and that 

proceedings in that case should be STAYED pending a resolution of Movant’s appeal. 

In an unpublished opinion, the Eleventh Circuit opined that when “a new pro se petition is 

filed before the adjudication of a prior petition is complete, the new petition should be construed 

as a motion to amend the pending petition rather than as a successive application.” Blackmon v. 

Sec’y, Dep’t of Corr., 803 F. App’x 232, 234 (11th Cir. 2020) (quoting Woods v. Carey, 525 F.3d 

886, 888 (9th Cir. 2008)). The issue, though, is determining whether the “adjudication” of 

Movant’s prior § 2255 motion is “complete” since Movant appealed the Court’s decision denying 

the motion on the merits. As this Court has previously explained, “there is currently a split 

amongst the circuit courts of appeals as to what a district court should do if a movant attempts to 

amend his § 2255 motion after filing a notice of appeal.” Atkins v. United States, No. 22-CV22114, 2023 WL 1765536, at *3 (S.D. Fla. Feb. 3, 2023) (emphasis added). Some circuit courts

have held that a postconviction motion is successive when the movant “file[s] his motions to 

amend after the district court ha[s] [already] denied his claims[.]” Beaty v. Schriro, 554 F.3d 780, 

782 (9th Cir. 2009); accord Ochoa v. Sirmons, 485 F.3d 538, 540–41 (10th Cir. 2007). Others 

have concluded that a motion to amend is not successive so long as appellate review has not 

concluded. See Clark v. United States, 764 F.3d 653, 658 (6th Cir. 2014) (“A motion to amend is 

not a second or successive § 2255 motion when it is filed before the adjudication of the initial § 

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2255 motion is complete—i.e., before the petitioner has lost on the merits and exhausted her 

appellate remedies.”); accord Whab v. United States, 408 F.3d 116, 118 (2d Cir. 2005). 

The Court finds the reasoning of the later group of circuit courts to be more persuasive. It 

seems wholly reasonable that the adjudication of a § 2255 motion cannot be complete “so long as 

appellate proceedings following the district court’s dismissal of the initial petition remain 

pending[.]” Whab, 408 F.3d at 118; cf. Clay v. United States, 537 U.S. 522, 527 (2003) (“Here, 

the relevant context is postconviction relief, a context in which finality has a long-recognized, clear 

meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or 

denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.”). 

For case management purposes, the Court adopts the logical multi-step procedure advocated by 

the Third Circuit in United States v. Santarelli, 929 F.3d 95 (3d Cir. 2019). First, any “subsequent 

habeas petition” filed “during the pendency of an appeal of the district court’s denial of the 

petitioner’s initial habeas petition . . . should be construed as a motion to amend the initial habeas 

petition.” Id. at 105. Next, the district court must stay the reconstrued motion to amend “pending 

the resolution of the appeal with respect to the initial habeas petition” since “the pendency of the 

appeal divests the district court of jurisdiction to consider the ‘motion to amend[.]’” Id. at 106. 

Once the appeal has concluded, the district court can then either dismiss the motion to amend as 

“second or successive” or apply the “Rule 15 standard for amending pleadings”—depending on 

the outcome of the appeal. Id. 

The instant Motion is a § 2255 motion that was filed while the denial of Movant’s first

§ 2255 motion is being considered on appeal. Thus, the Court will reconstrue the Motion as a 

“motion to amend” Movant’s original § 2255 motion in Case No. 22-CV-22770. See Santarelli, 

929 F.3d at 105; Blackmon, 803 F. App’x at 234. Once this Motion is properly docketed in that 

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case number, the Court will stay all of the proceedings in Case No. 22-CV-22770 until the Eleventh 

Circuit has fully adjudicated Movant’s appeal. See Santarelli, 929 F.3d at 106. 

Accordingly, it is hereby ORDERED AND ADJUDGED as follows: 

1. The Clerk is instructed to DOCKET the Motion [ECF No. 1] as a “motion to 

amend” in Case No. 22-CV-22770. This case shall be CLOSED. No further pleadings should be 

filed in this case number. 

2. Case No. 22-CV-22770 shall be STAYED pending the resolution of Movant’s 

appeal in Case No. 23-10013 by the Eleventh Circuit. 

DONE AND ORDERED in Miami, Florida, on this 15th day of February, 2023. 

 

 _________________________________ 

 RODOLFO A. RUIZ II

UNITED STATES DISTRICT JUDGE

cc: Fabian Anthony Perpall 

180151566 

Metro West Detention Center

Inmate Mail/Parcels

13850 NW 41st Street 

Miami, FL 33178 

PRO SE

Noticing 2255 US Attorney 

Email: usafls-2255@usdoj.gov

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