                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-3467
                                      ____________

                                    JAMES SODANO,
                                                         Appellant
                                             v.

                           UNITED STATES OF AMERICA
                                  ____________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 3-14-cv-07630)
                     District Judge: Honorable Peter G. Sheridan
                                     ____________

                          Argued April 3, 2019
  Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District
                                Judge*

                                   (Filed: April 17, 2019)

Thomas A. Dreyer [Argued]
6 Dickinson Drive
Building 100 – Suite 110
Chadds Ford, PA 19317
       Counsel for Appellant

Craig Carpenito
Steven G. Sanders [Argued]
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102

      *
        The Honorable Mitchell S. Goldberg, District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
Norman Gross
Office of United States Attorney
Camden Federal Building & Courthouse
Camden, NJ 08101
       Counsel for Appellee

                                      ____________

                                       OPINION**
                                      ____________



HARDIMAN, Circuit Judge.

       James Sodano, litigating pro se in the District Court, filed a motion to vacate his

sentence under 28 U.S.C. § 2255.1 Sodano made several arguments that his counsel was

ineffective, but ineffectiveness in plea bargaining under Lafler v. Cooper, 566 U.S. 156

(2012), was not among them. After the Government answered, but within the one year

period to file a motion under § 2255, Sodano filed a “Memorandum in Support” of his

motion to vacate, which he “requested to be attached” to that motion. Mem. in Support at

1, No. 3-14-cv-07630 (D.N.J. Sept. 8, 2015), ECF No. 9. Sodano argued in that




       **
         This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       1
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 2255, and we
have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Our review is plenary as to the
District Court’s legal conclusions; we review its factual findings for clear error. See
United States v. Travillion, 759 F.3d 281, 289 (3d Cir. 2014).
                                             2
submission that his trial counsel was ineffective for failing to explain the risks of turning

down a plea bargain.

       About a year and a half after his judgment became final, Sodano filed a motion to

amend to formally add the Lafler claim to his motion to vacate the sentence. The

Government conceded “Sodano did raise a Lafler claim, albeit inartfully,” and that

“[g]iven Sodano’s status as a pro se petitioner, the Government submits that his

[Memorandum in Support] should be viewed as a[ ] [timely] amendment to the initial

petition.” Gov’t Letter at 1, No. 3-14-cv-07630 (D.N.J. Mar. 21, 2017), ECF No. 18. The

District Court disagreed, holding Sodano could not bypass the rules of amendment by

adding new claims in a supplemental brief. Mem. Order at 1–2, No. 3-14-cv-07630

(D.N.J. Mar. 26, 2017), ECF No. 19. We granted a Certificate of Appealability on the

Lafler claim only.

       Consistent with the position taken in its letter to the District Court, the

Government now moves to remand under 28 U.S.C. § 2106 and Third Circuit Local

Appellate Rule 27.4(a). Because we agree that Sodano’s pro se Memorandum in Support

should have been liberally construed as a timely amendment to his motion to vacate, we

will vacate the District Court’s orders as relevant and grant the Government’s motion to

remand. We leave it to the District Court to decide, in the first instance, whether to hold a

hearing on Sodano’s Lafler claim or whether instead “the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255.
                                              3
