                                                                      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.
                                        ___________

                  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,


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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

                                               3
(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

                                             4
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.




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