United States District Court, M.D. Pennsylvania
Christopher C. Conner, Chief Judge
Stubbs (“Stubbs”) is a pro se federal
prisoner seeking reconsideration of his sentence on
collateral review. We denied Stubbs' first habeas motion
brought under 28 U.S.C. § 2255 and the Third Circuit
affirmed. Stubbs now files a “Rule 15” motion or,
alternatively, a “Rule 60(b)” motion asking us to
revisit his sentence in light of Dean v. United
States, 581 U.S.__, 137 S.Ct. 1170 (2017). The
government opposes Stubbs' motion and argues that it is
an improper successive petition under 28 U.S.C. § 2255.
We will dismiss the motion.
Factual Background & Procedural History
convicted Stubbs of armed bank robbery and use of a firearm
during the armed bank robbery. (Doc. 179). He was sentenced
to 154 months' imprisonment. (Doc. 229). The Third
Circuit affirmed his conviction and sentence on direct
appeal. See United States v. Stubbs, 578 Fed.Appx.
114 (3d Cir. 2014) (nonprecedential). Stubbs then filed a
pro se motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255, asking us to vacate his
conviction and sentence. (Doc. 300). We denied that motion
and also denied his subsequent request for a certificate of
appealability. (Docs. 342, 343). Stubbs appealed. (Doc. 345).
application to the Third Circuit for a certificate of
appealability, Stubbs gave several reasons for why he
believed our decision was wrong. See Pro Se
Application for Certificate of Appealability, United
States v. Stubbs, 757 Fed.Appx. 159 (3d Cir. Dec. 28,
2018) (No. 17-1539); Petitioner's Counseled Application
for Certificate of Appealability, Stubbs, 757
Fed.Appx. 159 (No. 17-1539). Relevant here, Stubbs argued
that Dean-which was decided after we denied his
initial 2255 motion-rendered his sentence unconstitutional
and a violation of his due process rights. See
Petitioner's Counseled Application for Certificate of
Appealability at 14-20, Stubbs, 757 Fed.Appx. 159
(No. 17-1539). The Third Circuit issued a certificate of
appealability on the separate question of whether trial
counsel was constitutionally ineffective by failing to
preserve either a sentencing challenge or a constructive
amendment claim under Alleyne v. United States, 570
U.S. 99 (2013). (Doc. 351-1). It denied a certificate of
appealability on the Dean question “without
prejudice to the filing of a motion seeking relief in the
District Court.” (Id. at 2).
then filed a “Rule 15” motion in this court,
asking us to find that Dean renders his sentence
unconstitutional. (Doc. 351 at 2-6). The government opposes
the motion, claiming that it improperly cites Rule 60
standards and should be construed as a successive 2255
motion, not a Rule 15 motion to amend. (Doc. 359). In reply,
Stubbs asks us to treat his “Rule 15” motion as a
“Rule 60(b) Motion if that is the proper vehicle to
attain justice.” (Doc. 360 at 2). After Stubbs filed
his reply, the Third Circuit affirmed our earlier denial of
Stubbs' 2255 motion. See Stubbs, 757 Fed.Appx.
159. Briefing is complete and Stubbs' motion is ripe for
core, Stubbs' motion asks us to revisit his sentence in
light of the Supreme Court's recent decision in Dean
v. United States, 581 U.S. __, 137 S.Ct. 1170 (2017).
Stubbs styles his motion as a Rule 15 motion to amend or,
alternatively, a Rule 60(b) motion to vacate. (See
Docs. 351, 360). As with all pro se cases, we
construe Stubbs' filings liberally and “look behind
the label” of his motion to determine its true aim.
United States v. Miller, 197 F.3d 644, 648 (3d Cir.
1999) (citation omitted). Yet whether Stubbs' filing is a
Rule 15 or Rule 60(b) motion, we conclude that it is a
disguised successive petition that must be authorized by the
Third Circuit Court of Appeals.
courts lack jurisdiction to entertain a Rule 15 motion to
amend after a notice of appeal is filed challenging the
denial of a prisoner's initial habeas motion. United
States v. Santarelli, 929 F.3d 95, 106 (3d Cir. 2019)
(citing Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 58 (1982)). When, like here, the prisoner
“exhausts [his] 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.” Id. Because the Third
Circuit affirmed our denial of Stubbs' initial 2255
motion without remand,  Stubbs' attempt to add a new claim
under Rule 15 must be treated as a successive motion.
Analyzing Stubbs' motion under Rule 60(b) would not
change our conclusion. Rule 60(b) motions that assert new
grounds for relief after the dismissal of a prisoner's
initial habeas motion are treated as successive motions.
See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005);
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.
a second or successive habeas petition is erroneously filed
in a district court without the permission of a court of
appeals, the district court's only option is to dismiss
the petition or transfer it to the court of appeals pursuant
to 28 U.S.C. § 1631.” Robinson v.
Johnson, 313 F.3d 128, 139 (3d Cir. 2002). As relevant
here, the Third Circuit can certify a successive habeas
petition if the petition establishes a “new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2) (emphasis
added). The Supreme Court did not explicitly make
Dean retroactive, and courts that have addressed
this issue have concluded that Dean is not
retroactive. See, e.g., Thomas v.
United States, No. 16-3835, 2019 WL 3815671, at *3-4
(D.N.J. Aug. 14, 2019) (collecting cases); see also Tyler
v. Cain, 533 U.S. 656, 668 (2001) (O'Connor, J.,
concurring). Therefore, because we have doubts as to
Stubbs' ability to clear Section 2255's gatekeeping
provisions, we do not believe the “interest of
justice” warrants transfer. 28 U.S.C. § 1631. We
will accordingly dismiss Stubbs' motion. This decision in
no way precludes Stubbs from filing an application for leave
to file a second or successive motion directly with the Third
court will dismiss Stubbs' motion (Doc. 351) for lack of
jurisdiction. An appropriate order shall issue.