                                          PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                 Nos. 16-4114, 18-1362

                    _____________

           UNITED STATES OF AMERICA

                           v.

               TAMARA SANTARELLI,
                     Appellant in Appeal No. 16-4114

           IN RE: TAMARA SANTARELLI,
                       Petitioner in Appeal No. 18-1362
                   ______________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
              (D.C. No. 3-11-cr-00036-002)
          District Judge: Hon. Edwin M. Kosik
                     _____________

                Argued: April 24, 2018
                   ______________

Before: MCKEE, AMBRO, and RESTREPO, Circuit Judges.

                  (Filed: July 5, 2019)
                     ______________

Connor J. Baer [ARGUED]*
J. Nicholas Ranjan
Lucas J. Tanglen
K&L Gates
210 Sixth Avenue
Pittsburgh, PA 15222
       Pro Bono Counsel for Appellant

Sean A. Camoni [ARGUED]
Michelle L. Olshefski
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

Kate L. Mershimer
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
       Counsel for Appellee

                     ______________

                OPINION OF THE COURT
                    ______________




*
       Connor J. Baer withdrew as counsel on October 23,
2018, prior to the issuance of this opinion.




                             2
RESTREPO, Circuit Judge.

        Tamara Santarelli appeals the District Court’s denial of
her motion to amend (“Motion to Amend”) her initial habeas
petition. We also consider whether the petition (“Subsequent
Petition”) that Santarelli seeks to file in the District Court,
which she annexed to the motion (“Motion to File Subsequent
Petition”) that she filed in this Court during the pendency of
this appeal, constitutes a “second or successive” habeas
petition under 28 U.S.C. §§ 2244 and 2255(h). For the reasons
that follow, we hold that the allegations contained in
Santarelli’s Motion to Amend “relate back” to the date of her
initial habeas petition pursuant to Federal Rule of Civil
Procedure 15(c) and that her Subsequent Petition is not a
“second or successive” habeas petition within the meaning of
28 U.S.C. §§ 2244 and 2255(h). We therefore will reverse the
order of the District Court denying Santarelli’s Motion to
Amend; remand for the District Court to consider the merits of
her initial habeas petition as amended by the allegations
contained in the Motion to Amend; and, construing Santarelli’s
Motion to File Subsequent Petition as a motion to amend her
initial habeas petition, transfer the Motion to File Subsequent
Petition to the District Court to determine, in the first instance,
whether Santarelli should be permitted to amend her initial
habeas petition to incorporate the allegations contained in the
Subsequent Petition.

                                I.

      In October 2011, a jury convicted Santarelli of multiple
crimes in connection with a scheme that allegedly began in
2006, including (a) mail fraud, in violation of 18 U.S.C.
§§ 1341–1342; (b) wire fraud, in violation of 18 U.S.C. § 1343;
and (c) conspiracy to commit mail fraud and wire fraud, in




                                3
violation of 18 U.S.C. § 371.1 The District Court held a
sentencing hearing in October 2013 and, applying the
applicable sentencing range contained in the 2012 version of
the United States Sentencing Commission’s Guidelines
Manual (“Sentencing Guidelines” or “Guidelines”), sentenced
Santarelli to a seventy-month term of imprisonment and a
three-year term of supervised release. Santarelli timely filed a
notice of appeal, and, on August 21, 2014, our Court affirmed
her conviction. See United States v. Santarelli, 577 F. App’x
131 (3d Cir. 2014). Santarelli’s conviction became final on
December 12, 2014.

       On November 30, 2015, within the applicable one-year
statute of limitations, Santarelli timely filed a petition for
habeas relief pursuant to 28 U.S.C. § 2255. In her initial habeas
petition, Santarelli alleged, among other things, that her trial
and appellate counsel provided ineffective assistance in a
combined 130 ways, including:

          • “failure to appeal sentence as requested by
            [Santarelli],” App. 97a, no. 26;

          • “failure to argue [presentence investigation
            report (“]PSR[”)] errors at sentencing,” id. no.
            30;

          • “failure to appeal PSR errors,” id. no. 31;



1
       The jury also convicted Santarelli’s husband of the
same crimes. Because this appeal only relates to Santarelli, we
have omitted all details with respect to her husband because
they are not relevant to the issues before us.




                               4
          • “failure to discuss PSR with [Santarelli],” id. no.
            32;

          • “failure to discuss [and] advise [Santarelli of] the
            [S]entencing [G]uidelines, laws, rules[,] or
            otherwise,” id. no. 33;

          • “failure to prepare . . . before sentencing other
            than [to] read the PSR,” id. at 98a, no. 35;

          • “failure to argue [in opposition to] the number of
            victims enhancement of two (2) points [and]/or
            failure to argue effectively [in opposition
            thereto,] which increased [Santarelli]’s sentence
            [by] around . . . twelve[ ]months,” id. no. 42; and

          • “failure to appeal based on [the number of
            victims enhancement],” id. no. 43.

On August 15, 2016—approximately eight-and-a-half months
after filing her initial habeas petition, but while her initial
habeas petition was still pending before the District Court—
Santarelli filed her Motion to Amend. In the Motion to Amend,
Santarelli sought to amend her initial habeas petition to
“include” in the “multiple grounds and constitutional
violations . . . that specifically relate to enhancements,
sentencing[,] and [S]entencing [G]uidelines” the following
allegations:

          • “[Santarelli] received ineffective assistance of
            counsel for failing to object to, file post-
            sentencing motions against the use of, or file any
            appeal against the use of the 2012 [S]entencing
            [G]uidelines[,] as [Santarelli]’s sentence was




                              5
              mis[]calculated in violation of the EX POST
              FACTO CLAUSE of the U[.]S[.] Constitution,”
              id. at 104a–05a;

          • “[t]he use of the 2012 [S]entencing [G]uidelines
            resulted in actual harm to [Santarelli] in that
            more persons were allowed to be counted as
            ‘victims’ under the 2012 [G]uidelines than
            would have been allowable in 2006, 2007, or
            2008, the time that it is claimed that the offenses
            were committed,” id. at 105a;

          • “the [S]entencing [G]uidelines that [Santarelli]
            should have been sentenced under were either
            the 2006 or the 2007 [G]uidelines or both”
            because Santarelli “was indicted on crimes that
            were supposedly committed in 2006 and 2007,”
            id. at 104a; and

          • “[i]n 2009, the [G]uidelines were broadened by
            definition,” id. at 105a.

To justify the untimeliness of her Motion to Amend, Santarelli
argued that the allegations contained in her Motion to Amend
“relate back” to her initial habeas petition pursuant to Rule
15(c) because she “made . . . prior claims to the issue of
erroneous enhancements [with respect to] victims as well as
other erroneous enhancements” in her initial habeas petition.
Id. at 103a.

        The District Court denied Santarelli’s Motion to
Amend, finding that it was “not timely and . . . time-barred.”
Id. at 6a. It reasoned that the new allegations contained in the
Motion to Amend did not “relate back” to the initial habeas




                               6
petition pursuant to Rule 15(c) because the allegations
“attempt[ed] to add an ex post facto claim,” which the District
Court determined to be “a ‘completely new’ ground or theory
for relief” that could not be “deemed timely under the ‘relation
back’ provisions of Rule[ ]15(c).” Id. (citing United States v.
Thomas, 221 F.3d 430, 435 (3d Cir. 2000)). In addition to
denying the Motion to Amend, the District Court denied
Santarelli’s initial habeas petition on the merits.

       Santarelli then filed an application for a certificate of
appealability in this Court. We granted the application solely
on the issue of whether the District Court erred in denying
Santarelli’s Motion to Amend, and we directed the Clerk of
Court to appoint pro bono counsel to represent Santarelli in this
appeal.2

       Following the close of briefing, but prior to oral
argument, Santarelli, proceeding pro se, filed her Motion to
File Subsequent Petition in this Court. The Motion to File
Subsequent Petition initially was docketed as a separate matter
from the appeal with respect to the Motion to Amend, but we
subsequently consolidated the cases and appointed Santarelli’s
pro bono counsel to represent her with respect to the Motion to
File Subsequent Petition. We directed the parties to file
supplemental briefs addressing whether the Subsequent
Petition is in fact a “second or successive” habeas petition
within the meaning of 28 U.S.C. §§ 2244 and 2255(h).



2
       We denied a certificate of appealability with respect to
the District Court’s denial of Santarelli’s initial habeas petition
on the merits.




                                7
                               II.

       The District Court exercised jurisdiction over
Santarelli’s initial habeas petition and the Motion to Amend
under 28 U.S.C. § 2255. We have jurisdiction to review the
District Court’s denial of Santarelli’s Motion to Amend
pursuant to 28 U.S.C. § 2253(a) because we issued a certificate
of appealability with respect thereto.         See 28 U.S.C.
§ 2253(c)(1). We review a district court’s interpretation of the
timeliness of a motion and the relation-back doctrine de novo.
Hodge v. United States, 554 F.3d 372, 377 (3d Cir. 2009).

       We have original jurisdiction to consider the Motion to
File Subsequent Petition because Santarelli styled the motion
as one for leave to file a “second or successive” habeas petition,
a motion that must be filed in this Court in the first instance.3
See 28 U.S.C. § 2244(b)(3).




3
       Although Santarelli filed her Motion to File Subsequent
Petition pro se following our appointment of pro bono counsel
to represent her on appeal with respect to the District Court’s
denial of her Motion to Amend, she did not violate the
prohibition on “hybrid representation.” That prohibition is
contained in our local rules, which state that “parties
represented by counsel may not file a brief pro se” except in a
direct appeal in which counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967). 3d Cir. L.A.R.
31.3; see also United States v. Turner, 677 F.3d 570, 578 (3d
Cir. 2012) (“Pro se litigants have no right to ‘hybrid
representation’ because ‘[a] defendant does not have a
constitutional right to choreograph special appearances by




                                8
                              III.

       Santarelli argues that the District Court erred in finding
that the allegations contained in her Motion to Amend do not
“relate back” to her initial habeas petition pursuant to Rule
15(c). We agree, and thus we will reverse.

         Pursuant to Rule 15(c), an amendment that is otherwise
untimely “relates back to the date of the original pleading when
. . . the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted
to be set out—in the original pleading.” Fed. R. Civ. P.
15(c)(1)(B). The Supreme Court has cautioned that courts
should not interpret “conduct, transaction, or occurrence” in
such a broad manner so as to construe essentially all

counsel.’” (quoting McKaskle v. Wiggins, 465 U.S. 168, 183
(1984))).

       In this case, however, we initially appointed counsel to
represent Santarelli for the specific purpose of representing her
during her appeal of the District Court’s denial of her Motion
to Amend, which was docketed at No. 16-4114. Thus, we did
not appoint counsel to represent Santarelli in any other
capacity. We previously acknowledged that Santarelli was
unrepresented for purposes of the Motion to File Subsequent
Petition. In addition to consolidating case No. 16-4114 with
the case in which Santarelli had filed the Motion to File
Subsequent Petition—which was docketed at No. 18-1362—in
our order, we appointed Santarelli’s pro bono counsel to
represent her in case No. 18-1362. In so doing, we implicitly
recognized that Santarelli previously was not represented by
counsel for purposes of her prior filing of the Motion to File
Subsequent Petition in case No. 18-1362.




                               9
amendments as permissible under the relation-back doctrine.
See Mayle v. Felix, 545 U.S. 644, 656–57 (2005). For example,
in the habeas context, the Supreme Court has refused to
interpret “conduct, transaction, or occurrence” as broadly
encompassing a “habeas petitioner’s trial, conviction, or
sentence,” reasoning that “[u]nder that comprehensive
definition, virtually any new claim introduced in an amended
petition will relate back, for federal habeas claims, by their
very nature, challenge the constitutionality of a conviction or
sentence, and commonly attack proceedings anterior thereto.”
Id. Instead, it has counseled that an amendment relates back to
a habeas petition under Rule 15(c) “[s]o long as the original
and amended petitions state claims that are tied to a common
core of operative facts.” Id. at 664 (emphasis added).

        In “search[ing] for a common core of operative facts in
the two pleadings,” Bensel v. Allied Pilots Ass’n, 387 F.3d 298,
310 (3d Cir. 2004), courts should remain aware that “the
touchstone for relation back is fair notice, because Rule 15(c)
is premised on the theory that ‘a party who has been notified
of litigation concerning a particular occurrence has been given
all the notice that statutes of limitations were intended to
provide,’” Glover v. FDIC, 698 F.3d 139, 146 (3d Cir. 2012).
“Thus, only where the opposing party is given ‘fair notice of
the general fact situation and the legal theory upon which the
amending party proceeds’ will relation back be allowed.”
Glover, 698 F.3d at 146 (quoting Bensel, 387 F.3d at 310). For
example, we have held that “amendments that restate the
original claim with greater particularity or amplify the factual
circumstances      surrounding      the    pertinent    conduct,
transaction[,] or occurrence in the preceding pleading fall
within Rule 15(c)” because the opposing party will have had
sufficient notice of the circumstances surrounding the




                              10
allegations contained in the amendment. Bensel, 387 F.3d at
310.

       Here, the allegations contained in Santarelli’s initial
habeas petition and the Motion to Amend arise from a common
core of operative facts. In her initial habeas petition, Santarelli
alleged that her trial and appellate counsel provided ineffective
assistance by, among other things, allegedly failing to argue, at
sentencing or on appeal, that the PSR included certain errors,
including an errant calculation with respect to the number-of-
victims enhancement. See App. 97a nos. 30–31; 98a nos. 42–
43. In her Motion to Amend, Santarelli simply seeks to
supplement her initial habeas petition by providing an
explanation as to why her counsel was ineffective by failing to
raise these alleged errors at sentencing and on appeal. In
particular, she alleges that she would not have been eligible for
the number-of-victims enhancement pursuant to section
2B1.1(b)(2) of the Sentencing Guidelines under the versions of
the Guidelines that were in effect at the time of her alleged
criminal activity in 2006 and 2007. According to Santarelli,
the PSR, which the District Court relied upon at sentencing,
used the 2012 version of the Guidelines, which contained a
broader definition of who may be considered a “victim” for
purposes of determining eligibility for the number-of-victims
enhancement, thereby resulting in her being eligible for the
enhancement and receiving a higher Guidelines range than she
would have received under the 2006 and 2007 versions of the




                                11
Guidelines.4 Thus, Santarelli seeks to clarify the cause of her
counsels’ alleged ineffectiveness with respect to their failure to

4
        In her Motion to Amend, Santarelli argued that “more
persons were allowed to be counted as ‘victims’ under the 2012
[G]uidelines than would have been allowable in 2006 [or]
2007.” App. 105a. Indeed, the Sentencing Commission
amended the Sentencing Guidelines in 2009 by, among other
things, broadening the class of persons who could be
considered “victims” in theft-offense cases in which the
defendant unlawfully used the “means of identification” of the
victim. See Amendments to the Sentencing Guidelines, U.S.
Sentencing Comm’n 4 (May 1, 2009), https://www.ussc.gov/
sites/default/files/pdf/amendment-process/official-text-
amendments/20090501_Amendments_0 .pdf. In such cases, a
person “whose means of identification was used unlawfully or
without authority” is considered a “victim” of the crime, see
U.S.S.G.§ 2B1.1 cmt. n.4(E), whereas under prior versions of
the Guidelines, only persons “who sustained any part of the
actual loss” were considered “victims” of the crime, id. cmt.
n.1. Thus, under the broader definition that was instituted by
the 2009 amendments to the Sentencing Guidelines, more
persons qualify as “victims” for purposes of the number-of-
victims enhancement under section 2B1.1(b)(2) of the
Guidelines, which increases the offense level of a crime based
on the number of victims involved. See U.S.S.G.§ 2B1.1(b)(2)
(increasing the offense level by two, four, and six levels for
offenses involving ten or more victims, fifty or more victims,
and 250 or more victims, respectively).

       Although neither a transcript of the sentencing hearing
nor a copy of the PSR can be located on the District Court’s
docket or the Appendix in this case, Santarelli’s objections to




                               12
argue that the District Court erred finding that she was eligible
for the number-of-victims enhancement. To her, that error
stems from their failure to argue that the District Court should
not have used the 2012 version of the Guidelines, which
allegedly resulted in a violation of the Ex Post Facto Clause of
the United States Constitution because her Guidelines range
would have been lower under the 2006 and 2007 versions of
the Guidelines. See Peugh v. United States, 569 U.S. 530, 541
(2013) (“[A]pplying amended sentencing guidelines that
increase a defendant’s recommended sentence can violate the
Ex Post Facto Clause, notwithstanding the fact that sentencing
courts possess discretion to deviate from the recommended
sentencing range.”).

       These allegations merely are “amendments that restate
the original claim with greater particularity or amplify the
factual circumstances surrounding the pertinent conduct,
transaction[,] or occurrence in the preceding pleading,” and
therefore the allegations contained in the Motion to Amend
“fall within Rule 15(c)” and relate back to the date of


the PSR imply that the District Court indeed found that
Santarelli was eligible for the number-of-victims enhancement
under section 2B1.1(b)(2) of the 2012 version of the
Guidelines. Further, Santarelli’s crimes may have involved the
unlawful use of one or more identifications of her victims, and,
pursuant to the 2009 amendments to the Guidelines, they
would qualify as “victims” for purposes of the number-of-
victims enhancement. Therefore, it is at least possible that the
District Court’s application of the amended 2012 version of the
Guidelines, rather than the 2006 or 2007 versions, may have
affected Santarelli’s eligibility for the number-of-victims
enhancement.




                               13
Santarelli’s initial habeas petition. Bensel, 387 F.3d at 310. As
outlined above, in her Motion to Amend, Santarelli simply
seeks to restate her original claim—that her trial and appellate
counsel provided ineffective assistance by failing to argue that
the District Court erred in determining that she was eligible for
the     number-of-victims         enhancement—with         greater
particularity: namely, she would not have been eligible for the
number-of-victims enhancement under the 2006 or 2007
versions of the Guidelines, which were in effect at the time of
her alleged crimes, and her counsel provided ineffective
assistance by failing to argue that the District Court erred in
applying the 2012 version of the Sentencing Guidelines, under
which she was eligible for the enhancement, thereby resulting
in a higher Guidelines range in violation of the Ex Post Facto
Clause. These allegations relate back to Santarelli’s initial
habeas petition, even setting aside our directive that courts
should construe pro se pleadings liberally, which the District
Court failed to apply. See, e.g., Rainey v. Varner, 603 F.3d
189, 198 (3d Cir. 2010) (“A habeas corpus petition prepared
by a prisoner without legal assistance may not be skillfully
drawn and should thus be read generously.”). Further,
Santarelli does not, as the District Court found, attempt to add
a new, substantive claim for a violation of the Ex Post Facto
Clause to her initial habeas petition through her Motion to
Amend; rather, she seeks to clarify that her counsel provided
ineffective assistance of counsel by allegedly failing to
recognize that the District Court allegedly sentenced her in
violation of the Ex Post Facto Clause.

      Thus, the allegations contained in Santarelli’s Motion to
Amend relate back to her initial habeas petition pursuant to
Rule 15(c), and the District Court erred in denying the Motion
to Amend. Therefore, we will reverse the District Court’s




                               14
order denying the Motion to Amend and will remand to the
District Court to consider the merits of Santarelli’s initial
habeas petition as amended by the allegations contained in the
Motion to Amend.

                             IV.

       While the appeal with respect to the District Court’s
denial of her Motion to Amend was pending, Santarelli filed in
our Court her Motion to File Subsequent Petition, which she
styled as a motion for leave to file a “second or successive”
habeas petition pursuant to 28 U.S.C. §§ 2244 and 2255(h).
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a petitioner is required to file a motion in
the appropriate court of appeals for authorization to file a
“second or successive” habeas petition in the relevant district
court for consideration of the petition’s merits. See 28 U.S.C.
§ 2244(b)(3)(A). AEDPA thus requires courts of appeals to
perform a “gatekeeping” function with respect to “second or
successive” habeas petitions, insofar as “[a] second or
successive motion must be certified by a court of appeals to
rely upon either ‘newly discovered evidence’ showing
innocence or ‘a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.’” United States v. Peppers,
899 F.3d 211, 220 (3d Cir. 2018) (quoting 28 U.S.C.
§ 2255(h)).

       Whether AEDPA requires courts of appeals to perform
this gatekeeping function in a given set of circumstances
hinges on the answer to a separate, baseline question: Is the
subsequent habeas petition in fact “second or successive”?
AEDPA, however, does not define what constitutes a “second
or successive” petition. In this case, we are asked to decide




                              15
whether a petition is “second or successive” for purposes of
AEDPA when it is filed during the pendency of appellate
proceedings concerning a district court’s denial of a
petitioner’s initial habeas petition. We hold that a subsequent
habeas petition is not “second or successive” under AEDPA
when a petitioner files such a petition prior to her exhaustion
of appellate remedies with respect to the denial of her initial
habeas petition, and thus AEDPA does not require us to
perform the gatekeeping function prior to a petitioner’s filing
such a subsequent petition in a district court.5

        We previously have counseled that “the term ‘second
and successive’ [i]s a term of art, which is not to be read
literally.” Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir.
2005). “Therefore, ‘a prisoner’s application is not second or
successive simply because it follows an earlier federal
petition.’” Id. (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.
1998)). Rather, we have held that a habeas petition is “second
or successive” if it is filed after “the petitioner has expended
the ‘one full opportunity to seek collateral review’ that AEDPA
ensures.” Blystone v. Horn, 664 F.3d 397, 413 (3d Cir. 2011)
(quoting Urinyi v. United States, 607 F.3d 318, 320 (2d Cir.
2010)) (holding that “a Rule 60(b) motion that raises a claim
attacking the underlying criminal judgment must be a second
or successive petition”).


5
       As discussed below, however, depending on the
outcome of a petitioner’s exercise of her appellate remedies
with respect to the denial of her initial habeas petition, a
subsequent habeas petition could later be construed as a
“second or successive” habeas petition regardless of our
holding that such a petition is not “second or successive” at the
time of filing during the pendency of an appeal.




                               16
       The Government urges us to adopt a rule that would
construe as “second or successive” all habeas petitions filed by
a petitioner following a district court’s denial of her initial
habeas petition, regardless of whether she has exhausted her
appellate remedies. In other words, the Government argues
that we should interpret “one full opportunity to seek collateral
review” to include an unstated qualifier: “one full opportunity
to seek collateral review” in the district court.

        We reject that proffered interpretation, which runs
counter to Supreme Court precedent on the finality of district
court judgments in the AEDPA context. For example, in Slack
v. McDaniel, 529 U.S. 473, 485–86 (2000), the Supreme Court
held that a subsequent habeas petition was not “second or
successive” even though the district court had previously
dismissed the petitioner’s initial habeas petition for failure to
exhaust his state remedies. Further, in Stewart v. Martinez-
Villareal, 523 U.S. 637, 643 (1998), the Supreme Court held
that a subsequent petition for relief on a claim was not “second
or successive” even though that petitioner had raised the same
claim in a prior habeas petition that the district court previously
dismissed as premature. See id. (“This may have been the
second time that respondent had asked the federal courts to
provide relief on his Ford claim, but this does not mean that
there were two separate applications, the second of which was
necessarily subject to § 2244(b).”). Taken together, Slack and
Stewart counsel that a subsequent habeas petition is not
necessarily a “second or successive” petition simply because
the district court has issued a “final” judgment denying a
petitioner’s initial habeas petition within the meaning of 28
U.S.C. § 1291. Therefore, we hold that a subsequent habeas
petition is “second or successive” if it is filed after “the
petitioner has expended the ‘one full opportunity to seek




                                17
collateral review’ that AEDPA ensures,” Blystone, 664 F.3d at
413 (quoting Urinyi, 607 F.3d at 320), which we interpret in
this context as meaning after the petitioner has exhausted all of
her appellate remedies with respect to her initial habeas
petition or after the time for appeal has expired. We thus join
the Second Circuit in holding that “so long as appellate
proceedings following the district court’s dismissal of the
initial petition remain pending when a subsequent petition is
filed, the subsequent petition does not come within AEDPA’s
gatekeeping provisions for ‘second or successive’ petitions” at
the time of the subsequent petition’s filing. Whab v. United
States, 408 F.3d 116, 118 (2d Cir. 2005) (citing Ching v. United
States, 298 F.3d 174, 177 (2d Cir. 2002)); see also 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 § 2255 motion is
complete—i.e., before the petitioner has lost on the merits and
exhausted her appellate remedies.”).

        The Supreme Court’s holding in Gonzalez v. Crosby,
545 U.S. 524 (2005), does not compel a different result. In
Gonzalez, the Supreme Court held that a Rule 60(b) motion for
relief from a district court’s final judgment or order is in fact a
habeas petition if the motion “advances one or more ‘claims’”
insofar as the motion “seeks to add a new claim for relief” or
“attacks the federal court’s previous resolution of a claim on
the merits.” Id. at 532. Applying the holding in Gonzalez, the
Seventh Circuit, in Phillips v. United States, 668 F.3d 433, 435
(7th Cir. 2012), held that a Rule 60(b) motion that was “directly
addressed to the merits” was a “second or successive” habeas
petition even though the petitioner filed the Rule 60(b) motion
during the pendency of an appeal. The Seventh Circuit’s
holding in Phillips is generally consistent with our own




                                18
precedent: “[A] Rule 60(b) motion that raises a claim attacking
the underlying criminal judgment must be a second or
successive petition because, the judgment having become final,
the petitioner has expended the ‘one full opportunity to seek
collateral review’ that AEDPA ensures.” Blystone, 664 F.3d at
413 (quoting Urinyi, 607 F.3d at 320). The holdings of these
cases do not apply to the facts of our case, however, because
we read the above-cited cases as solely concerning the inherent
nature of Rule 60(b) motions; Santarelli’s Motion to File
Subsequent Petition is not such a motion.

       Nor does our holding, as the Tenth Circuit has implied,
“undermine the policy against piecemeal litigation embodied
in § 2244(b).” Ochoa v. Sirmons, 485 F.3d 538, 541 (10th Cir.
2007). That court cautioned that a holding such as ours would
lead to “[m]ultiple habeas claims[’] . . . be[ing] successively
raised without statutory constraint for as long as a first habeas
case remained pending in the system.” Id. Such an assumption
disregards the jurisdictional dynamics at play when a petitioner
appeals a district court’s denial of her initial habeas petition.

       If, as we hold here, a subsequent habeas petition is not
a “second or successive” petition when it is filed during the
pendency of an appeal of the district court’s denial of the
petitioner’s initial habeas petition (the principal being that “[a]
document filed pro se is ‘to be liberally construed’”), that
subsequent habeas petition should be construed as a motion to
amend the initial habeas petition. Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106
(1976)). Further, as a result of our holding, such a liberally
construed “motion to amend” should be filed in the district
court in the first instance because such a motion is not a
“second or successive” habeas petition and, therefore, a
petitioner need not seek authorization from the court of appeals




                                19
pursuant to 28 U.S.C. §§ 2244 and 2255(h). While an appeal
of the district court’s denial of the initial habeas petition is
pending, however, that court lacks jurisdiction to consider the
“motion to amend” because “[t]he filing of a notice of appeal
is an event of jurisdictional significance—it confers
jurisdiction on the court of appeals and divests the district court
of its control over those aspects of the case involved in the
appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S.
56, 58 (1982). Therefore, the pendency of the appeal divests
the district court of jurisdiction to consider the “motion to
amend” unless and until the court of appeals remands the
matter to the district court. See Hernandez v. Coughlin, 18
F.3d 133, 138 (2d Cir. 1994) (holding that a district court lacks
jurisdiction to consider a motion to amend a complaint “[o]nce
a timely notice of appeal has been made” to the court of
appeals). Thus, the resolution of the merits of the “motion to
amend” should remain stayed pending the resolution of the
appeal with respect to the initial habeas petition. In the event
that a petitioner exhausts her appellate remedies to no avail, the
district court should refer the “motion to amend” to the court
of appeals as a “second or successive” habeas petition because
“the petitioner has,” at that point, “expended the ‘one full
opportunity to seek collateral review’ that AEDPA ensures.”
Blystone, 664 F.3d at 413 (quoting Urinyi, 607 F.3d at 320).

        If, however, an appellate court vacates or reverses, in
whole or in part, the district court’s denial of the initial habeas
petition and remands the matter—as is the case here—the
district court would again be vested with jurisdiction to
consider the “motion to amend.” Even if the matter is
remanded to the district court as described above, the “motion
to amend” nonetheless must satisfy not only the Rule 15
standard for amending pleadings, but also the dictates of the




                                20
abuse-of-the-writ doctrine, which “bar[s] claims that could
have been raised in an earlier habeas corpus petition.”
Benchoff, 404 F.3d at 817; see also Whab, 408 F.3d at 119 n.2
(holding that “[t]raditional doctrines, such as abuse of the writ,
continue to apply”). Thus, we believe that our holding is a
narrow one and represents a limited exception to 28 U.S.C.
§§ 2244 and 2255(h) that is in keeping with AEDPA’s policy
against piecemeal litigation.

        Therefore, because Santarelli filed her Motion to File
Subsequent Petition during the pendency of her appeal of the
District Court’s denial of her Motion to Amend, her
Subsequent Petition is not a “second or successive” habeas
petition under 28 U.S.C. §§ 2244 and 2255(h), and we construe
her Motion to File Subsequent Petition as a motion to amend
her initial habeas petition. Thus, Santarelli should have filed
the Motion to File Subsequent Petition directly in the District
Court. We therefore transfer the Motion to File Subsequent
Petition to the District Court for consideration of the motion as
if it had been filed in the first instance in the District Court, and
it should construe the motion as a motion to amend the initial
habeas petition. We note that because we are remanding this
matter for the District Court to consider the merits of
Santarelli’s initial habeas petition as amended by the
allegations contained in the Motion to Amend, it will be vested
on remand with jurisdiction to consider the Motion to File
Subsequent Petition.

                                 V.

        For the reasons stated above, we will reverse the order
of the District Court denying the Motion to Amend, remand to
it to consider the merits of Santarelli’s initial habeas petition as
amended by the allegations contained in the Motion to Amend,




                                 21
and transfer the Motion to File Subsequent Petition to that
court to consider, in the first instance, whether Santarelli
should be permitted to amend her initial habeas petition to
incorporate the allegations contained in the Subsequent
Petition.




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