NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 17-3467 ____________

JAMES SODANO, Appellant v.

UNITED STATES OF AMERICA ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 3-14-cv-07630) District Judge: Honorable Peter G. Sheridan ____________

Argued April 3, 2019 Before: CHAGARES and HARDIMAN, Circuit Judges, and GOLDBERG, District Judge*

(Filed: April 17, 2019)

Thomas A. Dreyer [Argued] 6 Dickinson Drive Building 100 – Suite 110 Chadds Ford, PA 19317 Counsel for Appellant

Craig Carpenito Steven G. Sanders [Argued] Mark E. Coyne Office of United States Attorney 970 Broad Street, Room 700 Newark, NJ 07102

* The Honorable Mitchell S. Goldberg, District Judge for the United States District Court for the Eastern District of Pennsylvania, sitting by designation. Norman Gross Office of United States Attorney Camden Federal Building & Courthouse Camden, NJ 08101 Counsel for Appellee

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OPINION** ____________

HARDIMAN, Circuit Judge.

James Sodano, litigating pro se in the District Court, filed a motion to vacate his

sentence under

Sodano made several arguments that his counsel was

ineffective, but ineffectiveness in plea bargaining under Lafler v. Cooper,

(2012), was not among them. After the Government answered, but within the one year

period to file a motion under § 2255, Sodano filed a “Memorandum in Support” of his

motion to vacate, which he “requested to be attached” to that motion. Mem. in Support at

1, No. 3-14-cv-07630 (D.N.J. Sept. 8, 2015), ECF No. 9. Sodano argued in that

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 The District Court had jurisdiction under

and 2255, and we have jurisdiction under

and 2253. Our review is plenary as to the District Court’s legal conclusions; we review its factual findings for clear error. See United States v. Travillion,

(3d Cir. 2014). 2 submission that his trial counsel was ineffective for failing to explain the risks of turning

down a plea bargain.

About a year and a half after his judgment became final, Sodano filed a motion to

amend to formally add the Lafler claim to his motion to vacate the sentence. The

Government conceded “Sodano did raise a Lafler claim, albeit inartfully,” and that

“[g]iven Sodano’s status as a pro se petitioner, the Government submits that his

[Memorandum in Support] should be viewed as a[ ] [timely] amendment to the initial

petition.” Gov’t Letter at 1, No. 3-14-cv-07630 (D.N.J. Mar. 21, 2017), ECF No. 18. The

District Court disagreed, holding Sodano could not bypass the rules of amendment by

adding new claims in a supplemental brief. Mem. Order at 1–2, No. 3-14-cv-07630

(D.N.J. Mar. 26, 2017), ECF No. 19. We granted a Certificate of Appealability on the

Lafler claim only.

Consistent with the position taken in its letter to the District Court, the

Government now moves to remand under

and Third Circuit Local

Appellate Rule 27.4(a). Because we agree that Sodano’s pro se Memorandum in Support

should have been liberally construed as a timely amendment to his motion to vacate, we

will vacate the District Court’s orders as relevant and grant the Government’s motion to

remand. We leave it to the District Court to decide, in the first instance, whether to hold a

hearing on Sodano’s Lafler claim or whether instead “the motion and the files and

records of the case conclusively show that the prisoner is entitled to no relief.”

. 3