United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge.
se defendant, Roger Sedlak, has filed a motion (Doc. 486) to
amend his 28 U.S.C. § 2255 motion to make the claim that
the court lacked jurisdiction to accept his guilty plea
because under Alleyne v. United States, ___ U.S.
___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), he was not
really guilty of a violation of 18 U.S.C. § 1028A(a)(1).
In Alleyne, the Supreme Court held that any fact
that increases the mandatory minimum sentence for an offense
is an element of the crime that must be submitted to the
jury. Id. at ___, 133 S.Ct. at 2155.
Civ. P. 15(a) would allow amendment of a 2255 motion but not
when the motion has already been adjudicated in the district
court. See Winkelman v. United States, No.
01-CR-304, 2011 WL 5024444, at *1 (M.D. Pa. Oct. 20, 2011).
Here, Defendant has already had his 2255 motion adjudicated.
See United States v. Sedlak, 2015 WL 1033981 (M.D.
Pa. Mar. 10, 2015). Defendant therefore cannot amend his 2255
motion to amend is the equivalent of a second 2255 motion,
Winkelman, 2011 WL 5024444, at *1, but Defendant has
already had a 2255 motion adjudicated, so he has to seek
approval of the court of appeals to file another one. See 28
U.S.C. § 2255(h). The motion to amend will therefore be
dismissed for lack of jurisdiction. See Pelullo v. United
States, 352 F.App'x 620, 625 (3d Cir. 2009)
cites Whab v. USA, 408 F.3d 116 (2d Cir. 2005), in
support of our jurisdiction to entertain his Alleyne
claim. In Whab, the defendant filed an application
with the Second Circuit to file a second 2255 motion while he
had pending an application for a certificate of appealability
arising from the district court's denial of his initial
2255 motion. The Second Circuit held that, as long as the
application in regard to the initial 2255 motion was pending
in the court of appeals, a subsequent 2255 motion would not
be a second or successive one requiring approval of the court
of appeals before it was filed in the district court. The
defendant was entitled to simply file the subsequent 2255
motion in the district court. Id. at 118-19.
indicates we would have jurisdiction over Defendant's
current motion as it appears that proceedings in the Third
Circuit are still pending. However, as we have advised Defendant
before, (Doc. 478, memorandum dated Sept. 14, 2016), we
decline to follow Whab. See Ochoa v.
Sirmons, 485 F.3d 538, 540 (10th Cir. 2007)(declining to
follow Whab). Whether a subsequent 2255 motion is a
second or successive one within the meaning of 28 U.S.C.
§ 2255(h) is not affected by whether the defendant has
an appeal pending in the court of appeals involving his
initial motion. See also Joseph v. Garman, No.
15-CV-1602, 2016 WL 2599150 (W.D. Pa. May 5, 2016) (adopting
magistrate judge's report and recommendation, 2016 WL
2604786, at *3)(following Ochoa).
decide whether to grant a certificate of appealability. Our
ruling that Defendant's 2255 motion must be dismissed as
a second or successive motion is a procedural one. In these
circumstances, a certificate should issue upon two showings:
(1) “jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a
constitutional right and (2) . . . jurists of reason would
find it debatable whether the district court was correct in
its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542
(2000)(numbering added). See also United States v.
Doe, 810 F.3d 132, 144 (3d Cir. 2015).
on the conflicting rulings in Whab and
Ochoa, jurists of reason would find it debatable
whether we are correct in our procedural ruling. However, we
have previously decided that Defendant's Alleyne
claim lacks merit. See United States v. Sedlak, 2015
WL 1033981, at *4 (M.D. Pa. Mar. 10, 2015). In these
circumstances, we will deny a certificate of appealability.
issue an order dismissing the motion to amend the 2255 motion
for lack of jurisdiction. The order will also deny a
certificate of appealability, based on the analysis in this
memorandum. However, Defendant is advised that he has the
right for sixty (60) days to appeal our order denying his
motion to amend, see 28 U.S.C. § 2253(a), and
that our denial of a certificate of appealability does not
prevent him from doing so, as long as he also seeks a
certificate of appealability from the court of appeals.
See Federal Rule of Appellate Procedure 22.
 Defendant filed an application for a
certificate of appealability in regard to his 2255 motion,
and on July 13, 2016, the Third Circuit granted Defendant an
extension of time to file a petition for rehearing en banc
from that court's order denying his petition for a
certificate of appealability. United States v.
Sedlak, No. 15-2446 (3d Cir. Jul. 13, 2016). Defendant
did attempt to file such a petition, ...