Johnathan Hawthorne v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10164
Non-Argument Calendar
____________________
JOHNATHAN HAWTHORNE,
a.k.a. Jonathan Hawthrone,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-23815-UU
____________________
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2 Opinion of the Court 21-10164
Before R OSENBAUM , GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Johnathan Hawthorne, a federal prisoner proceeding pro se,
appeals the dismissal of his 28 U.S.C. § 2255 motion to vacate his
conviction and sentence. The government has moved for
summary affirmance and for a stay of the briefing schedule.
Hawthorne has moved for leave to file a response out of time. For
the following reasons, we grant Hawthorne’s motion for leave to
file his response out of time, summarily affirm the dismissal, and
deny as moot the government’s motion to stay the briefing
schedule.
I.
In 2016, a jury convicted Hawthorne of being a felon in
possession of a firearm and ammunition. The district court, finding
that Hawthorne was an armed career criminal, sentenced him to
480 months’ imprisonment. We affirmed Hawthorne’s conviction
and sentence on direct appeal.
United States v. Hawthrone, 759 F.
App’x. 765, 772 (11th Cir. 2018) (unpublished).
In 2020, Hawthorne filed a § 2255 motion to vacate, raising
various grounds of ineffective assistance of counsel. A magistrate
judge issued an initial order of instructions, as well as an order
identifying several technical deficiencies in Hawthorne’s § 2255
motion and requiring him to file an amended pleading within
30 days. The magistrate judge also warned Hawthorne that failure
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21-10164 Opinion of the Court 3
to comply with the order by not filing a proper, amended motion
within 30 days may result in dismissal of his case.
Hawthorne did not file an amended § 2255 motion, nor did
he request an extension of time. Two weeks after the deadline, the
district court, pursuant to Fed. R. Civ. P. 41(b), dismissed the case
without prejudice.
II.
Summary disposition is appropriate 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).
We review a district court’s dismissal for failure to comply
with the rules of court for abuse of discretion.
Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005).
“Discretion means the district court has a range of choice, and that
its decision will not be disturbed as long as it stays within that range
and is not influenced by any mistake of law.”
Id. (quotation
omitted).
III.
Federal Rule of Civil Procedure 41(b) authorizes a district
court to dismiss an action for failure to prosecute or failure to
comply with a court order or the federal rules.
See
Fed. R. Civ. P. 41(b);
Moon v. Newsome, 863 F.2d 835, 838 (11th
Cir. 1989). Dismissal “upon disregard of an order, especially where
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4 Opinion of the Court 21-10164
the litigant has been forewarned, generally is not an abuse of
discretion.”
Moon, 863 F.2d at 837. Ordinarily, a dismissal without
prejudice is not an abuse of discretion.
See Dynes v. Army Air
Force Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983).
Although we liberally construe pro se pleadings, pro se
litigants are still required to conform to procedural rules.
Albra v.
Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). And issues “not
briefed on appeal by a
pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
On appeal, Hawthorne reiterates the merits of his
§ 2255 motion instead of challenging the district court’s dismissal
of it.1 After the government moved for summary affirmance,
Hawthorne moved for leave to file an out-of-time response. In his
proposed response, he contends that summary affirmance is
improper because, although his § 2255 motion may have been
technically defective, his claims are substantial in nature.
The district court did not abuse its discretion by dismissing
without prejudice Hawthorne’s § 2255 motion under Rule 41(b)
for failure to prosecute and failure to comply with the court’s
order.
See Betty K Agencies, 432 F.3d at 1337. The magistrate
1 We note that Hawthorne does not need a certificate of appealability to
appeal because the district court’s dismissal of his motion was not a “final
order” for purposes of 28 U.S.C. § 2253(c), as it did not dispose of the merits of
his motion.
See 28 U.S.C. § 2253(c);
Jackson v. United States, 875 F.3d 1089,
1090 (11th Cir. 2017) (a “final order,” for purposes of § 2253, is an order that
disposes of the merits of a § 2255 motion).
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21-10164 Opinion of the Court 5
judge gave Hawthorne clear and explicit instructions regarding the
deficiencies in his motion, and she provided him with one month
to cure them and warned him that failing to comply could result in
dismissal of his case.
When Hawthorne did not file an amended § 2255 motion by
the deadline, the district court waited an additional two weeks
before dismissing his case. Hawthorne could have filed an
amended § 2255 motion or requested an extension of time during
that two-week period, but he failed to do either. Because a district
court’s power to dismiss an action “is an inherent aspect of its
authority to enforce its orders and insure prompt disposition of law
suits,” the district court’s dismissal under Rule 41(b) was not an
abuse of discretion.
See Dynes, 720 F.2d at 1499 (quotation
omitted);
Moon, 863 F.2d at 837–38.
Furthermore, no substantial question exists on the outcome
of this appeal because Hawthorne has abandoned any challenge to
the district court’s dismissal by failing to raise the issue in his brief
on appeal.
See Timson, 518 F.3d at 874.
IV.
Because the government’s position is correct as a matter of
law, summary affirmance is appropriate. Hawthorne’s motion for
leave to file his response out of time and the government’s motion
for summary affirmance are GRANTED, and the government’s
motion to stay the briefing schedule is DENIED as moot.
AFFIRMED.
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