ALD-206                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 13-4825
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                               ANTHONY ASKEW,
                                            Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Crim. No. 2-03-cr-00244-002)
                     District Judge: Honorable Arthur J. Schwab
                     ____________________________________

         Submitted for a Decision on Issuance of a Certificate of Appealability
            Under 28 U.S.C. § 2253(c)(1) and for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 17, 2014
         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 29, 2014)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Anthony Askew appeals from the District Court’s order denying both his motion

under 28 U.S.C. § 2255 and his motion for the return of property under Rule 41(g) of the

Federal Rules of Criminal Procedure. We will deny a certificate of appealability
(“COA”) as to the first of these rulings but vacate the second and remand.

       Askew was convicted of numerous federal charges arising from his participation

in six armed bank robberies, and his sentence includes consecutive seven-year terms for

“brandishing” a firearm during and in relation to a crime of violence under 18 U.S.C. §

924(c)(1)(A)(ii), as well as orders of restitution. We affirmed. See United States v.

Askew, 203 F. App’x 414 (3d Cir. 2006). Askew later challenged his convictions by

filing a § 2255 motion and two others. The District Court denied them, and we either

denied a COA or summarily affirmed. (C.A. Nos. 10-1540, 12-3094 & 13-3912.)

       At issue here are two motions that Askew subsequently filed pro se on the same

day. The first is another § 2255 motion, this time arguing that the District Court found

the element of “brandishing” without submitting that issue to the jury as now required by

Alleyne v. United States, 133 S. Ct. 2151 (2013). The second is a motion for the return

of 18 items of property that the Government allegedly seized while executing a search

warrant for Askew’s residence on July 8, 2003. The District Court denied both motions

in a single order the day after Askew filed them, and Askew appeals.

       With respect to Askew’s § 2255 motion, the District Court concluded that it raised

“the same” challenges Askew raised in his previous filings and denied it for the same

reasons. Askew correctly argues that his Alleyne claim is not “the same” as any claim he

previously asserted. Askew formerly raised claims of ineffective assistance of counsel

and did not challenge the “brandishing” aspect of his sentence, let alone rely on the 2013

decision in Alleyne. This error was clearly harmless, however, and we will deny a COA



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as to this aspect of the order for the reasons summarized in the margin. 1

       With respect to Askew’s other motion, however, we will vacate and remand. A

Rule 41(g) motion for the return of property is an independent civil action for equitable

relief. See United States v. Chambers, 192 F.3d 374, 376 (3d Cir. 1999) (addressing

former Rule 41(e)). If a defendant files such a motion after the conclusion of criminal

proceedings, the burden is on the Government to “demonstrate that it has a legitimate

reason to retain the property.” Id. at 377. In addressing such motions, the District Court

generally must undertake at least some inquiry into whether the Government retains

possession of the property and why. See id. at 377-78; see also United States v.

Albinson, 356 F.3d 278, 281-82, 284 n.9 (3d Cir. 2004) (summarizing district courts’

obligations under Chambers and to pro se litigants). We review the District Court’s

resolution of such motions for abuse of discretion. See Chambers, 192 F.3d at 376.

       In this case, Askew asserts that the Government seized and never returned 18

items of his property and that he received no notice that he could contest the

Government’s retention of this property because the Government never instituted


1
  Although the District Court misconstrued Askew’s § 2255 motion, reasonable jurists
would not debate whether it should have been granted. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Askew’s § 2255 motion was second or successive because it challenged
the same judgment as his previous § 2255 motion. See United States v. Winkelman, —
F.3d —, Nos. 03-4500 & 03-4753, 2014 WL 1228194, at *1 (3d Cir. Mar. 26, 2014).
The District Court lacked jurisdiction to consider the motion because we did not
authorize it to do so, and the District Court was thus obligated to dismiss it or transfer it
to this Court to be treated as an application under 28 U.S.C. §§ 2244(b) and 2255(h). See
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002). The motion also does not satisfy
the standard for filing a second or successive § 2255 motion because, as we recently held,
Alleyne has not been “made retroactive to cases on collateral review by the Supreme
Court[.]” Winkelman, 2014 WL 1228194, at *1 (quoting § 2244(b)(1)(A)).
                                              3
forfeiture proceedings. See United States v. McGlory, 202 F.3d 664, 669, 674 n.10 (3d

Cir. 2000) (noting similar claim). It does indeed appear from Askew’s criminal docket

that the Government may not have instituted forfeiture proceedings. The District Court,

however, denied Askew’s motion without any explanation, and without any response

from the Government, the day after he filed it.

       No basis for the denial of this motion is immediately apparent to us. Askew

appears primarily concerned with some $25,000 in currency that the Government seized

from his residence and, although we do not decide the issue on this limited record, it may

well be that those funds are proceeds of his bank robberies or otherwise properly subject

to the District Court’s order of restitution. See United States v. Craig, 694 F.3d 509, 512

(3d Cir. 2012). But Askew also requests the return of numerous other items, including

electronic equipment, clothing, luggage, and what the search inventory identifies as a

“child support notice.” See McGlory, 202 F.3d at 674 n.10 (addressing motion for return

of “household items” including a stereo system and camera). Without any explanation or

immediately apparent basis for the District Court’s exercise of discretion, we are

constrained to vacate its denial of this motion and remand for further consideration. On

remand, the District Court may wish to direct the Government to file a response.

       For these reasons, we will deny a COA as to that aspect of the District Court’s

order denying Askew’s § 2255 motion but will vacate that aspect of the order denying his

Rule 41(g) motion and remand for further proceedings.




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