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Third Circuit Announces New Rule for Amending § 2255 Motions on Appeal

by Dale Chappell

In a ruling that further divides the circuits on how and when a motion under 28 U.S.C. § 2255 can be amended, the U.S. Court of Appeals for the Third Circuit held on July 5, 2019, that an amendment filed while the motion is on appeal can be considered if the case is remanded by the appellate court.

After Tamara Santarelli was convicted in 2011 of mail and wire fraud, she appealed and lost, the Third Circuit affirming her 70-month sentence. As most federal prisoners do, she filed a motion under § 2255 challenging her sentence, raising numerous claims of ineffective assistance of counsel. More to the point, she said the Sentencing Guidelines used by the court at the time of sentencing caused a much harsher sentence than if the court had used the Guidelines in effect at the time of her offense. Had her lawyer objected, she said, her sentence would have been lower.

Months later, Santarelli attempted to amend her motion to clarify her claims, but the U.S. District Court for the Middle District of Pennsylvania ruled that her amendment did not “relate back” to her original claims and were therefore new claims that were time-barred. The court then denied her unamended motion on the merits and refused to grant a certificate of appealability (“COA”). Santarelli appealed.

The Third Circuit granted Santarelli a COA on whether her amendment did relate back to her original claims, and the Court appointed pro bono counsel for the appeal.

However, while her appeal was pending, Santarelli filed in the appellate court a “Motion to File Subsequent Petition,” which the clerk filed as a “second or successive” § 2255 motion (“SOS 2255”), but then consolidated both cases in the Court under one proceeding. The Court ordered briefing on whether the SOS 2255 was actually an amendment to Santarelli’s motion pending on appeal and held oral argument.

Typically, when another § 2255 motion is filed while one is pending in the district court, it is construed as an amendment to the pending motion. But the twist here was that Santarelli’s motion had been denied by the district court and was pending on appeal. Appellate courts do not hear § 2255 motions; rather, the sentencing court has jurisdiction and authority to hear them. So, what should a court do when a § 2255 is on appeal, and another motion is filed? This became the question the Third Circuit set out to answer.

The Government argued that Santarelli’s § 2255 motion became final once the district court denied it, and that made her second motion filed in the appellate court a SOS 2255, which could not have amended her original motion. But the Court rejected this, concluding that a § 2255 motion is not final until the movant “has exhausted all of her appellate remedies ... or after the time for appeal has expired.” The Court cited cases from the Second and Sixth Circuits that have held the same.

But Santarelli could not amend her § 2255 motion on appeal, the Court recognized, because (1) the appellate court did not have the authority to do so and (2) the sentencing court, which had the authority, lost jurisdiction over the case when the notice of appeal was filed. The U.S. Supreme Court has held that a notice of appeal “confers” jurisdiction on the court of appeals and “divests” jurisdiction from the district court. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56 (1982).

Therefore, the Third Circuit created a new rule for amending a § 2255 motion that is pending on appeal. The new motion or amendment will be filed but “stayed” pending the outcome of the appeal. Should the appellate court remand the original motion for further consideration, the district court would then count the stayed motion amendment in that consideration as an amendment, if it meets the standard as a proper amendment. However, if the appellate court (or Supreme Court) denies the appeal, the district court must transfer the motion/amendment to the Third Circuit for certification as a SOS 2255 for it to be considered by the district court.

The Court called its new rule a “limited exception” to the policy against piecemeal litigation in § 2255 motions and reiterated that a new § 2255 motion filed while one is pending, even in appeal, is not a SOS 2255.

Examining Santarelli’s original motion, the Court found that her amendment filed in the district court was a true amendment, contrary to what the district court said, and remanded her motion for the district court to take into consideration both of her amendments—the one filed in the district court and the one filed as a SOS 2255 while her motion was pending on appeal. See: United States v. Santarelli, 929 F.3d 95 (3d Cir. 2019).


Writer’s note: The Court’s new rule applies equally to state prisoners filing habeas corpus petitions under 28 U.S.C. § 2254. One practice tip, however: Federal Rule of Civil Procedure 15 defines what is a proper “amendment” to a motion or petition. In order for an amendment to be considered timely filed, it must “relate back” to the original claim. That means the substance of the amendment must be materially similar to the claim made that it is amending. But this only applies if the amendment is being filed after the one-year time limit for filing the federal motion or petition. Adding new claims before the deadline would not have to fall under the “relate back” rule. 

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United States v. Santarelli



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