Lavont Flanders, Jr. v. USA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11875
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-20296-KMM; 1:11-cr-20557-KMM-1
LAVONT FLANDERS, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 6, 2021)
Before MARTIN, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
Lavont Flanders, proceeding pro se, appeals the district court’s order
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dismissing his Fed. R. Civ. P 60(b)(2) motion as untimely and, alternatively, as an
unauthorized 28 U.S.C. § 2255 motion to vacate his sentence. The government has
responded by moving for summary affirmance and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
We review a district court’s denial of relief under Rule 60(b) for an abuse of
discretion. Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). Rule 60(b)
provides relief from a judgment or order based on “newly discovered evidence that,
with reasonable diligence, could not have been discovered in time to move for a new
trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). A Rule 60(b)(2) motion must be
made within one year of the entry of the judgment. See Fed. R. Civ. P. 60(c)(1). A
Rule 60(b) motion is subject to the restrictions of a second or successive habeas
petition if the movant is attempting to raise a new ground for relief or to attack a
federal court’s previous resolution of a claim on the merits, even if “couched in the
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language of a true Rule 60(b) motion.” See Gonzalez v. Crosby, 545 U.S. 524, 531-
32 (2005). A Rule 60(b) motion is to be treated as a successive habeas petition if it:
(1) “seeks to add a new ground of relief,” or (2) “attacks the federal court’s previous
resolution of a claim on the merits.” Id. at 532.
A prisoner may collaterally attack his conviction under § 2255 by filing a
motion to vacate on the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).
Under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a prisoner is generally
entitled to file only one § 2255 petition. When a prisoner has previously filed a
§ 2255 motion, he must apply for and receive permission from the appellate court
before filing a second or successive § 2255 petition. § 2255(h). Absent the appellate
court’s permission, the district court lacks jurisdiction to address the petition, and it
must be dismissed. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Here, there is no substantial question that Flanders filed an untimely Rule
60(b) motion and, when construed as a 28 U.S.C. § 2255 motion, he filed an
unauthorized and successive motion. See Groendyke Transp., Inc, 406 F.2d at 1162.
We come to that conclusion for two reasons.
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First, the district court correctly found that Flanders’ Rule 60(b) motion was
untimely. Flanders signed his Rule 60(b) motion July 25, 2019, well after the statute
of limitations ended on December 4, 2018. See Fed. R. Civ. P. 60(c)(1). Though
the district court erred in concluding that Flanders’ motion was filed in August 2019,
the date the motion was filed rather than the date he signed the motion, which is
required under the prison mailbox rule, this error was harmless as Flanders’ motion
was still untimely as filed in July 2019.
Second, the district court did not err in alternatively construing Flanders’
motion as a § 2255 motion to vacate because he essentially attacked the validity of
his conviction by advancing arguments concerning “newly discovered evidence” in
the form of fraud on the court based on the allegedly fraudulent indictments. Further,
Flanders previously filed a § 2255 motion, challenging the same convictions, before
filing the instant petition without demonstrating permission from our Court to file a
second or successive petition. Therefore, the district court lacked jurisdiction to
address Flanders’s petition. See Holt, 417 F.3d at 1175.
Thus, there is no substantial question that the district court properly dismissed
Flanders’ petition as untimely and as an unauthorized successive petition, and the
government’s position is correct as a matter of law. See Groendyke, 406 F.2d at
1162. Accordingly, the government’s motion for summary denial is GRANTED and
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the government’s motion to stay the briefing schedule is DENIED as moot. All other
pending motions are DENIED as moot.
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