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w . v i l l a no v a . e du/thir dc ir c uit_2014/332PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ Nos. 03

- 4500, 03

- 4753

___________ UNITED STATES OF AMERICA

v. GEORGE A. WINKELMAN Appellant at No. 03

- 4500

___________ UNITED STATES OF AMERICA

v. JOHN F. WINKELMAN, JR

. Appellant at No. 03

- 4753

___________ On Motion to Recall the Mandate f rom Ap peal s F rom the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Nos. 4

- 01

- cr - 00304

- 8 and 4

- 01

- cr - 00304

- 9) District Judge: The Honorable Jam es F. McClure

___________ Before: SCIRICA and NYGAARD, Circuit Judges, and ALARC Ó N * , Circuit Judge.
(Filed: March 26, 2014 )

* Honorable Arthur L. Alarcon, Senior Circuit Judge for the Ninth Circuit Court of Appeals, sitting by designation.2 ___________ O P I N I O N SUR MOTION S TO RECALL MA N DATE

___________ NYGAARD , Circuit Judge Presently before the Court are motio ns by pro se Appellants George A. Winkelman and John F. Winkelman, Jr., to recall our mandate and to reinstate their direct appeal s so they can try to seek relief under the Supreme Court ’ s recent holding in Alleyne v. United States , 1 33 S.Ct. 2151 (2013). We asked the Government to file a response to these motions, which it has done. The brothers Winkelman have a long and protracted litigation history in this Circuit, which we need not relate in detail. It suffices to say that both of their prior cases involved challenges to the constitutionality of their sentences, which they brought as prisoners in custody, and which were filed pursuant to 28 U.S.C. § 2255. We denied certificates of appealability in each case. See United States v. John F. Winkelman , No. 08

- 1931; United States v. George A. Winkelman , No. 08

- 1932. The Winkelmans’ latest motion

— to recall our mandate and reinstate their direct appeals

— argues that their sentences are unconstitutional in light of the Supreme Court’s holding in Alleyne tha t “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. Of course, w e have the “inherent power” to recall our mandate, but that “power can be exercised only in extraordinary circumstances.” Calderon v. Thompson , 523 U.S. 538, 549

- 50 (1998) ; American Iron & Steel Institute v. E.P.A. , 560 F.2d 589,3

594 (3d Cir. 1977), cert. denied , 435 U.S. 914 (1978)

. W e are also bound by “the statutory and ju risprudential limits applicable in habeas corpus cases , ” id . at 553, and w e determine whether a petition is “second or successive” by looking at “the judgment challenged.” Magwood v. Patterson , 130 S.Ct. 2788, 2797 (2010). Here, the Winkelmans challeng e the same judgment of conviction and sentence they originally c ontested in 200 7. Accordingly, we construe the Winkelmans’ latest motions as seeking relief under § 2255. Inasmuch as they previously challenged their convictions and sentences in a § 2255 pet ition, we have little difficulty finding these latest filings to be successive. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), cast the federal courts of appeals in the role of “gate

- keeper,” charging us with the responsibility of “p reventing the repeated filing of habeas petitions that attack the prisoner ’ s underlying conviction.” Blystone v. Horn , 664 F.3d 397, 411 (3d Cir. 2011) (citations omitted). To fulfill this gate

- keeping role, AEDPA directs us to dismiss any claim presente d in a second or successive petition that the petitioner presented in a previous application. 28 U.S.C. § 2244(b)(1). A successive § 2255 motion is authorized only if it is based on “newly discovered evidence,” or on “a new rule of constitutional law, m ade retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Id . The Winkelmans argue that Alleyne announced a new retroactive rule of constitutional law because it overruled Harris v. United States , 536 U.S. 545 (2002). They cite United States v. Booker , 543 U.S. 220 (2005), Blakely v. Washington , 542 U.S. 296 (2004), Apprendi v. New Jersey , 530 U.S. 466 (2000), and Almendarez

- Torres v. United States , 523 U.S. 4664

(1998), maintaining that this combination of dec isions demonstrates that the Supreme Court has made Alleyne retroactively applicable to cases on collateral review. We do not agree. The Supreme Court may well have announced a new rule of law in Alleyne

. See , e.g., Simpson v. United States , 721 F.3d 8 75, 876 (7th Cir. 2013) (holding that Alleyne announced a new rule of law). We make no definitive pronouncement on that question, but note that “a new rule is not ‘made retroactive to cases on collateral review’ unless the Supreme Court holds it to be ret roactive.” Tyler v. Cain , 533 U.S. 656, 663 (2001). The Alleyne rule was announced in a direct appeal without the Supreme Court expressly holding it to be retroactive to cases on collateral review. See United States v. Redd , 735 F.3d 88, 91 (2d Cir. 201 3). Further, “the clearest instance, of course, in which [the Supreme Court] can be said to have ‘made’ a new rule retroactive is where [it has] expressly held the new rule to be retroactive in a case of collateral review and applied the rule to that case .” Tyler , 533 U.S. at 668 (O'Connor, J., concurring). But, the Supreme Court has not so stated in Alleyne . We note specifically that none of the cases the Supreme Court remanded for further proceedings in light of Alleyne involved collateral attacks on convictions. Of course, the Supreme Court could make a new rule of law retroactive by putting it in a category of cases previously held to be retroactive. See id . at 668

– 69 (O ’ Connor, J., concurring). Those categories are: new substantive rules that pla ce “certain kinds of primary, private individual conduct beyond the power of the criminal law

- making authority to proscribe”; and new procedural rules that “are implicit in the concept of5

ordered liberty.” Teague v. Lane , 489 U.S. 288, 311 (1989) (citatio ns and quotations omitted); see also Chaidez v. United States , 133 S.Ct. 1103, 1107 n. 3 (2013) (continuing to recognize only the two Teague exceptions). The latter is set aside for “watershed rules of criminal procedure” which “‘alter our understanding o f the bedrock procedural elements”’ of the adjudicatory process. Teague , 489 U.S. at 311 (quoting Mackey v. United States , 401 U.S. 667, 693 (1971) (Harlan, J., concurring)). The Alleyne decision does not fit into either category. We are not alone in th is determination. See Redd , 735 F.3d at 91; In re Payne , 733 F.3d 1027 (10th Cir. 2013); Simpson , 721 F.3d at 876. Therefore, we now hold that Alleyne cannot be applied retroactively to cases on collateral review. The Winkelmans’ latest motions are,

co nsequently, denied. It is so ordered.