American Bar Association
Media Alerts
Media Alerts - United States v. Sellner - Eighth Circuit
Decrease font size
Increase font size
December 31, 2014
  United States v. Sellner - Eighth Circuit
Headline Eighth Circuit panel holds that pro se petitioner's filing of second motion challenging sentence while first motion remains pending should be treated as a motion to amend

Area of Law Sentencing

Issue(s) Presented Whether the district court properly denied defendant's two pro se motions to vacate her conviction, where no evidentiary hearing was conducted and the second motion was dismissed as "second or successive."

Brief Summary Defendant pleaded guilty to conspiracy to distribute and possess with intent to distribute methamphetamine. Following entry of judgment, Defendant filed a pro se motion to vacate her conviction pursuant to 28 U.S.C. § 2255, arguing that her counsel failed to file a notice of appeal even though she requested he do so. While that motion was pending, Defendant filed a second § 2255 motion raising a different issue. The district court dismissed Defendant's first motion on the merits, without first holding an evidentiary hearing. It also dismissed her second motion as "second or successive" under the Antiterrorism and Effective Death Penalty Act (AEDPA). Defendant appealed the denial of her § 2255 motions.

With respect to denial of her first § 2255, the Eight Circuit followed existing precedent and held that an evidentiary hearing should have been held before denial of the motion on the merits. Competing statements by Defendant and Defendant's counsel regarding whether a notice of appeal was requested created a factual dispute necessitating an evidentiary hearing.

Defendant argued that her second § 2255 motion should have been construed as a motion to amend, and should not have been denied as "second or successive." Motions to amend are not considered "second or successive" under AEDPA. The Eighth Circuit agreed with Defendant. Though the Eighth Circuit had not previously addressed this issue, it followed the lead of other circuits and held that when a pro se defendant files a second § 2255 motion before the first has been ruled on, the second motion should be construed as a motion to amend. In support, the Eighth Circuit noted that pro se filings are to be liberally construed, and no adjudication on the merits of the prior motion have yet occurred in such cases.

The full text of the opinion may be found at Text

Panel Chief Judge Riley and Circuit Judges Bye and Wollman

Date of Issued Opinion December 15, 2014

Decided Reversed and remanded

Docket Number 13-3794

Counsel Kimberly Bunjer for the United States and Michael David Gooch for Defendant

Author Circuit Judge Wollman

Case Alert Circuit Supervisor Joelle Larson, University of Minnesota Law School

    Posted By: Joelle Larson @ 12/31/2014 10:46 AM     8th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top