Alexander Shevgert v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12135
Non-Argument Calendar
____________________
ALEXANDER SHEVGERT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:12-cr-00245-JDW-AAS-1
____________________
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2 Opinion of the Court 21-12135
Before N EWSOM , ANDERSON, and ED C ARNES, Circuit Judges.
PER CURIAM:
Alexander Shevgert appeals the district court’s dismissal of
his construed 28 U.S.C. § 2255 motion as successive.
In 2013, while already serving a 300-month sentence for con-
spiring to commit murder, Shevgert pleaded guilty to using a facil-
ity of interstate commerce with intent to commit murder-for-hire
and soliciting the commission of a crime of violence. In December
2015 Shevgert filed a Fed. R. Civ. P. 60(b) motion for relief from
the 2013 judgment, which the district court recharacterized as a
§ 2255 motion and denied as untimely and without merit. In May
2021 Shevgert filed a “Request to Set Aside/Vacate Convic-
tion/Sentence for Lesser Included Offense.” The district court also
construed that request as one for relief under § 2255 and dismissed
it as an unauthorized second or successive motion.
Shevgert contends that the district court erred by dismissing
his May 2021 § 2255 motion as second or successive because, as we
have already determined in
In re Shevgert, No. 21-12185 (11th Cir.
July 14, 2021), the court recharacterized his Rule 60(b) motion as a
§ 2255 motion without fully complying with the notice-and-warn-
ing requirement set forth in
Castro v. United States, 540 U.S. 375
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21-12135 Opinion of the Court 3
(2003). For that reason, Shevgert argues, his May 2021 motion was
not successive.1 We agree.
A federal prisoner may collaterally attack his sentence
through a § 2255 petition.
See 28 U.S.C. § 2255(a). But federal law
“dramatically limits successive attempts at habeas relief
.”
Stewart
v. United States, 646 F.3d 856, 859 (11th Cir. 2011). To file a second
or successive § 2255 motion a prisoner must receive authorization
from the appropriate court of appeals. 28 U.S.C. § 2255(h). With-
out that authorization the district court lacks jurisdiction to con-
sider a second or successive § 2255 motion.
See Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003). We review
de novo a
district court’s dismissal of a § 2255 motion as second or successive.
See Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014).
“Federal courts are obligated to look beyond the label of a
pro se inmate’s motion to determine if it is cognizable under a dif-
ferent statutory framework.”
United States v. Stossel, 348 F.3d
1320, 1322 n.2 (11th Cir. 2003). But because of the prohibition on
second or successive § 2255 motions, a district court’s authority to
recharacterize a
pro se litigant’s filing as a § 2255 motion is limited.
See Castro, 540 U.S. at 382–83. In
Castro the Supreme Court held
1 A movant typically is required to obtain a certificate of appealability (COA)
before appealing in a § 2255 proceeding.
See 28 U.S.C. § 2253(c)(1)(B);
Pagan
v. United States, 353 F.3d 1343, 1344–45 (11th Cir. 2003). However, a COA is
not required if the district court dismissed the § 2255 motion for lack of subject
matter jurisdiction, as it did here.
See Hubbard v. Campbell, 379 F.3d 1245,
1247 (11th Cir. 2004).
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4 Opinion of the Court 21-12135
that when a district court recharacterizes a
pro se litigant’s pleading
as a first § 2255 motion, the court must (1) notify the litigant “that
it intends to recharacterize the pleading,” (2) “warn the litigant that
this recharacterization means that any subsequent § 2255 motion
will be subject to the restrictions on ‘second or successive’ mo-
tions,” and (3) give the litigant “an opportunity to withdraw the
motion or to amend it so that it contains all the § 2255 claims he
believes he has.”
Id. at 383. If the district court does not give the
notice and warnings, the motion cannot be counted as a first § 2255
motion for second or successive purposes.
See id.
Because the district court recharacterized Shevgert’s Rule
60(b) motion as a § 2255 motion and denied it on the merits, the
court found that Shevgert’s May 2021 motion was a successive
§ 2255 motion and dismissed it as unauthorized. In June 2021
Shevgert applied to us for authorization to file a second or succes-
sive § 2255 motion. We denied the application as unnecessary, ex-
plaining that when the district court recharacterized Shevgert’s
Rule 60(b) motion as a § 2255 motion it failed to comply fully with
Castro.
See In re Shevgert, No. 21-12185. It did not give Shevgert
an opportunity to amend his motion, and he did not agree to have
the motion recharacterized.
Id. As a result, the recharacterized
motion could not be treated as a § 2255 motion for purposes of ren-
dering a later motion second or successive, meaning that Shevgert
did not need our permission to proceed with his proposed § 2255
motion.
Id.
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21-12135 Opinion of the Court 5
In light of our earlier ruling about the district court’s
Castro
error, and as the government concedes, Shevgert’s construed
§ 2255 motion in this case was not successive. Accordingly, the dis-
trict court erred in dismissing it for lack of jurisdiction.
See Ponton
v. Sec’y, Fla. Dep’t of Corr., 891 F.3d 950, 954 (11th Cir. 2018) (hold-
ing that because the petitioner’s motion was recharacterized as a
§ 2254 petition without the notice and warnings required by
Cas-
tro, the district court erred in dismissing his later petition as an un-
authorized second or successive petition).2
VACATED AND REMANDED.
2 In March 2021 Shevgert filed a “Request for Facts Underlying Elements of
Crimes of Conviction,” which the district court also recharacterized (appar-
ently without complying with
Castro) as an unauthorized second or successive
§ 2255 motion and dismissed. Even if the March 2021 motion were properly
construed as a § 2255 motion, it would not make Shevgert’s May 2021 motion
successive because “second or successive status only attaches to a judgment
on the merits.”
Boyd, 754 F.3d at 1302 (explaining that a § 2255 motion that is
dismissed as second or successive has not been resolved on the merits and
can’t render a later motion second or successive). The district court added
that the March 2021 motion was also due to be denied on the merits, but the
conclusion of the order stated that the motion was “dismissed,” which indi-
cates that the ruling was ultimately a jurisdictional one.
See Univ. of S. Ala. v.
Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“Simply put, once a fed-
eral court determines that it is without subject matter jurisdiction, the court is
powerless to continue.”).
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