A blog of the Philadelphia Bar Association’s Criminal Justice Section


By Burt Rose

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U.S. v. Winkelman, 2014 WL 1228194 (C.A.3 (Pa.)): This case was before Judges SCIRICA, NYGAARD and ALARCÓN. Judge Nygaard wrote the Opinion for the Panel.

Before the Court were motions by pro se Appellants George A. Winkelman and John F. Winkelman, Jr., to recall the 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, 186 L.Ed.2d 314 (2013).

These are successive § 2255 motions which are authorized only if 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.” The Winkelmans argued that Alleyne announced a new retroactive rule of constitutional law because it overruled Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). They contended that the Supreme Court has made Alleyne retroactively applicable to cases on collateral review. The Third Circuit Court did 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). However, 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, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001).

The Supreme Court could make a new rule of law retroactive by putting it in a category of cases previously held to be retroactive. 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 ordered liberty.” Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (citations and quotations omitted); see also Chaidez v. United States, ––– U.S. ––––, –––– n. 3, 133 S.Ct. 1103, 1107 n. 3, 185 L.Ed.2d 149 (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, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)).

The Court of Appeals held that the Alleyne decision does not fit into either category. Therefore, Alleyne will not be applied retroactively to cases on collateral review.


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