United States v. Winkelman, 746 F.3d 134

Pro se appellants George A. Winkelman and John F. Winkelman, Jr. move to recall the mandate and reinstate direct appeals to challenge Alleyne v. United States.
The Winkelmans previously challenged their sentences in 28 U.S.C. § 2255 proceedings and were denied COAs in 2007 (Nos. 08-1931, 08-1932).
They contend Alleyne makes certain mandatory-minimum sentences unconstitutional and seeks relief under § 2255 as a second or successive petition.
This court has inherent power to recall a mandate only in extraordinary circumstances; AEDPA gatekeeping governs second/successive petitions.
A successive § 2255 petition is allowed only for newly discovered evidence or a new retroactive Supreme Court ruling unavailable at the time of the prior petition; Alleyne’s retroactivity is at issue.
The court analyzes whether Alleyne announced a retroactive rule applicable on collateral review and concludes it does not; motions to recall are denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Winkelmans’ motion is a second/successive petition.	Winkelmans argue Alleyne retroactivity justifies relief.	Court: Alleyne retroactivity not established; petition is second/successive under AEDPA.	Motions deemed successive and denied.
Whether Alleyne can be applied retroactively on collateral review.	Alleyne announced new retroactive rule affecting mandatory minimums.	Alleyne has not been held retroactive by the Supreme Court for collateral review.	Alleyne cannot be applied retroactively on collateral review.
Whether the court may recall its mandate in light of Alleyne.	Inherent power to recallMandate could permit relief in extraordinary circumstances.	AEDPA limits recall; this is not extraordinary and not viable under § 2255.	Mandate recall denied.

Calderon v. Thompson, 523 U.S. 538 (1998) (extraordinary-circumstances limitation on recall of mandate)
American Iron & Steel Institute v. E.P.A., 560 F.2d 589 (3d Cir. 1977) (gate-keeping; AEDPA limits on successive petitions)
Magwood v. Patterson, 130 S.Ct. 2788 (2010) (defining successive § 2255 petitions)
Blystone v. Horn, 664 F.3d 397 (3d Cir. 2011) (AEDPA gatekeeping and second/successive petitions)
Teague v. Lane, 489 U.S. 288 (1989) (retrospective retroactivity framework; two Teague exceptions)
Redd v. United States, 735 F.3d 88 (2d Cir. 2013) (Alleyne not retroactive on collateral review)
Simpson v. United States, 721 F.3d 875 (7th Cir. 2013) (Alleyne announced a new rule in direct appeal context)
Tyler v. Cain, 533 U.S. 656 (2001) (retroactivity requires explicit Supreme Court holding)
Alleyne v. United States, 133 S.Ct. 2151 (2013) (new rule: any fact increasing mandatory minimum is an element to be proven beyond a reasonable doubt)
Harris v. United States, 536 U.S. 545 (2002) ( precedents cited in Alleyne-era retroactivity discussion)
Booker, 543 U.S. 220 (2005) (constitutional law interplay with sentencing; non-retroactive context noted)
Blakely v. Washington, 542 U.S. 296 (2004) (applies to sentencing factors and jury findings)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (jury finders for certain sentencing factors)
Almendarez-Torres v. United States, 523 U.S. 466 (1998) (prior conviction exception in sentencing guidelines)