2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2014

USA v. Winkelman

Precedential or Non-Precedential: Precedential

Docket No. 03-4500

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"USA v. Winkelman" (2014). 2014 Decisions. Paper 332.

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PRECEDENTIAL

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 from Appeals

From 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 James F. McClure

___________

Before: SCIRICA and NYGAARD, Circuit Judges,

and ALARCÓN

*

, Circuit Judge.

(Filed: March 26, 2014)

 

*Honorable Arthur L. Alarcon, Senior Circuit Judge for the Ninth Circuit Court of 

Appeals, sitting by designation.
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___________

OPINION SUR MOTIONS TO RECALL MANDATE

___________

NYGAARD, Circuit Judge

Presently before the Court are motions by pro se Appellants George A. 

Winkelman and John F. Winkelman, Jr., to recall our mandate and to reinstate their direct 

appeals so they can try to seek relief under the Supreme Court’s recent holding in Alleyne 

v. United States, 133 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 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. 133 

S.Ct. at 2155. Of course, we 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). We are also bound by “the 

statutory and jurisprudential limits applicable in habeas corpus cases,” id. at 553, and we 

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 

challenge the same judgment of conviction and sentence they originally contested in 

2007. Accordingly, we construe the Winkelmans’ latest motions as seeking relief under 

§ 2255. Inasmuch as they previously challenged their convictions and sentences in a § 

2255 petition, 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 “preventing 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 presented 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, made 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. 466 
4

(1998), maintaining that this combination of decisions 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 875, 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 retroactive.” 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. 2013). 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 place “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 of 
5

ordered liberty.” Teague v. Lane, 489 U.S. 288, 311 (1989) (citations 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 of 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 this 

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, 

consequently, denied.

It is so ordered.