United States v. Santarelli, 070519 FED3, 16-4114

Docket Nº:16-4114, 18-1362
Opinion Judge:RESTREPO, CIRCUIT JUDGE.
Party Name:UNITED STATES OF AMERICA v. TAMARA SANTARELLI, Appellant in Appeal No. 16-4114 IN RE: TAMARA SANTARELLI, Petitioner in Appeal No. 18-1362
Attorney:Connor J. Baer [ARGUED] J. Nicholas Ranjan Lucas J. Tanglen K&L Gates Pro Bono Counsel for Appellant Sean A. Camoni [ARGUED] Michelle L. Olshefski Kate L. Mershimer Counsel for Appellee
Judge Panel:Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.
Case Date:July 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA

v.

TAMARA SANTARELLI, Appellant in Appeal No. 16-4114

IN RE: TAMARA SANTARELLI, Petitioner in Appeal No. 18-1362

Nos. 16-4114, 18-1362

United States Court of Appeals, Third Circuit

July 5, 2019

Argued: April 24, 2018

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-11-cr-00036-002) District Judge: Hon. Edwin M. Kosik

Connor J. Baer [ARGUED] [*] J. Nicholas Ranjan Lucas J. Tanglen K&L Gates Pro Bono Counsel for Appellant

Sean A. Camoni [ARGUED] Michelle L. Olshefski Kate L. Mershimer Counsel for Appellee

Before: McKEE, AMBRO, and RESTREPO, Circuit Judges.

OPINION

RESTREPO, CIRCUIT JUDGE.

Tamara Santarelli appeals the District Court's denial of her motion to amend ("Motion to Amend") her initial habeas petition. We also consider whether the petition ("Subsequent Petition") that Santarelli seeks to file in the District Court, which she annexed to the motion ("Motion to File Subsequent Petition") that she filed in this Court during the pendency of this appeal, constitutes a "second or successive" habeas petition under 28 U.S.C. §§ 2244 and 2255(h). For the reasons that follow, we hold that the allegations contained in Santarelli's Motion to Amend "relate back" to the date of her initial habeas petition pursuant to Federal Rule of Civil Procedure 15(c) and that her Subsequent Petition is not a "second or successive" habeas petition within the meaning of 28 U.S.C. §§ 2244 and 2255(h). We therefore will reverse the order of the District Court denying Santarelli's Motion to Amend; remand for the District Court to consider the merits of her initial habeas petition as amended by the allegations contained in the Motion to Amend; and, construing Santarelli's Motion to File Subsequent Petition as a motion to amend her initial habeas petition, transfer the Motion to File Subsequent Petition to the District Court to determine, in the first instance, whether Santarelli should be permitted to amend her initial habeas petition to incorporate the allegations contained in the Subsequent Petition.

I.

In October 2011, a jury convicted Santarelli of multiple crimes in connection with a scheme that allegedly began in 2006, including (a) mail fraud, in violation of 18 U.S.C. §§ 1341-1342; (b) wire fraud, in violation of 18 U.S.C. § 1343; and (c) conspiracy to commit mail fraud and wire fraud, in violation of 18 U.S.C. § 371.1 The District Court held a sentencing hearing in October 2013 and, applying the applicable sentencing range contained in the 2012 version of the United States Sentencing Commission's Guidelines Manual ("Sentencing Guidelines" or "Guidelines"), sentenced Santarelli to a seventy-month term of imprisonment and a three-year term of supervised release. Santarelli timely filed a notice of appeal, and, on August 21, 2014, our Court affirmed her conviction. See United States v. Santarelli, 577 Fed.Appx. 131 (3d Cir. 2014). Santarelli's conviction became final on December 12, 2014.

On November 30, 2015, within the applicable one-year statute of limitations, Santarelli timely filed a petition for habeas relief pursuant to 28 U.S.C. § 2255. In her initial habeas petition, Santarelli alleged, among other things, that her trial and appellate counsel provided ineffective assistance in a combined 130 ways, including: • "failure to appeal sentence as requested by [Santarelli]," App. 97a, no. 26;

• "failure to argue [presentence investigation report ("]PSR[")] errors at sentencing," id. no. 30;

• "failure to appeal PSR errors," id. no. 31;

• "failure to discuss PSR with [Santarelli]," id. no. 32;

• "failure to discuss [and] advise [Santarelli of] the [S]entencing [G]uidelines, laws, rules[, ] or otherwise," id. no. 33;

• "failure to prepare . . . before sentencing other than [to] read the PSR," id. at 98a, no. 35;

• "failure to argue [in opposition to] the number of victims enhancement of two (2) points [and]/or failure to argue effectively [in opposition thereto, ] which increased [Santarelli]'s sentence [by] around . . . twelve[ ]months," id. no. 42; and

• "failure to appeal based on [the number of victims enhancement]," id. no. 43.

On August 15, 2016-approximately eight-and-a-half months after filing her initial habeas petition, but while her initial habeas petition was still pending before the District Court- Santarelli filed her Motion to Amend. In the Motion to Amend, Santarelli sought to amend her initial habeas petition to "include" in the "multiple grounds and constitutional violations . . . that specifically relate to enhancements, sentencing[, ] and [S]entencing [G]uidelines" the following allegations: • "[Santarelli] received ineffective assistance of counsel for failing to object to, file post-sentencing motions against the use of, or file any appeal against the use of the 2012 [S]entencing [G]uidelines[, ] as [Santarelli]'s sentence was mis[]calculated in violation of the EX POST FACTO CLAUSE of the U[.]S[.] Constitution," id. at 104a-05a;

• "[t]he use of the 2012 [S]entencing [G]uidelines resulted in actual harm to [Santarelli] in that more persons were allowed to be counted as 'victims' under the 2012 [G]uidelines than would have been allowable in 2006, 2007, or 2008, the time that it is claimed that the offenses were committed," id. at 105a;

• "the [S]entencing [G]uidelines that [Santarelli] should have been sentenced under were either the 2006 or the 2007 [G]uidelines or both" because Santarelli "was indicted on crimes that were supposedly committed in 2006 and 2007," id. at 104a; and

• "[i]n 2009, the [G]uidelines were broadened by definition," id. at 105a.

To justify the untimeliness of her Motion to Amend, Santarelli argued that the allegations contained in her Motion to Amend "relate back" to her initial habeas petition pursuant to Rule 15(c) because she "made . . . prior claims to the issue of erroneous enhancements [with respect to] victims as well as other erroneous enhancements" in her initial habeas petition. Id. at 103a.

The District Court denied Santarelli's Motion to Amend, finding that it was "not timely and . . . time-barred." Id. at 6a. It reasoned that the new allegations contained in the Motion to Amend did not "relate back" to the initial habeas petition pursuant to Rule 15(c) because the allegations "attempt[ed] to add an ex post facto claim," which the District Court determined to be "a 'completely new' ground or theory for relief" that could not be "deemed timely under the 'relation back' provisions of Rule[ ]15(c)." Id. (citing United States v. Thomas, 221 F.3d 430, 435 (3d Cir. 2000)). In addition to denying the Motion to Amend, the District Court denied Santarelli's initial habeas petition on the merits.

Santarelli then filed an application for a certificate of appealability in this Court. We granted the application solely on the issue of whether the District Court erred in denying Santarelli's Motion to Amend, and we directed the Clerk of Court to appoint pro bono counsel to represent Santarelli in this appeal.2

Following the close of briefing, but prior to oral argument, Santarelli, proceeding pro se, filed her Motion to File Subsequent Petition in this Court. The Motion to File Subsequent Petition initially was docketed as a separate matter from the appeal with respect to the Motion to Amend, but we subsequently consolidated the cases and appointed Santarelli's pro bono counsel to represent her with respect to the Motion to File Subsequent Petition. We directed the parties to file supplemental briefs addressing whether the Subsequent Petition is in fact a "second or successive" habeas petition within the meaning of 28 U.S.C. §§ 2244 and 2255(h).

II.

The District Court exercised jurisdiction over Santarelli's initial habeas petition and the Motion to Amend under 28 U.S.C. § 2255. We have jurisdiction to review the District Court's denial of Santarelli's Motion to Amend pursuant to 28 U.S.C. §...

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