USA v.Geno Rolle

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13027
Non-Argument Calendar
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D.C. Docket No. 9:09-cr-80094-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GENO ROLLE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(March 3, 2016)
Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:
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Geno Rolle, a federal prisoner proceeding pro se, appeals from the district
court’s order denying his motion to correct a “clerical error,” ostensibly filed
pursuant to Rule 36 of the Federal Rules of Criminal Procedure. Rolle, who was
convicted in 2009 of illegal re-entry of a deported alien under 8 U.S.C. § 1326(a)
and (b)(2), argues that the motion, which the district court construed as an
unauthorized successive motion to vacate pursuant to 28 U.S.C. § 2255, was not a
request to vacate the conviction, but a request to correct the indictment, which he
contends incorrectly charged him with both entry and attempting to enter.
Pursuant to § 2255, a prisoner in federal custody may move the court that
imposed his sentence to vacate, set aside, or correct the sentence if it was imposed
in violation of federal constitutional or statutory law, was imposed without proper
jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). However, when a prisoner previously
has filed a § 2255 motion to vacate, he must apply for and receive permission from
this Court before filing a successive § 2255 motion. Id. §§ 2244(b)(3), 2255(h).
Rolle’s motion, which explicitly requested that the district court vacate his
sentence, was more aptly construed as a § 2255 motion to vacate. Therefore, as
Rolle already had filed a prior § 2255 motion that was denied on the merits, the
district court did not err in denying the instant motion as successive and
unauthorized by this Court. See McIver v. United States, 307 F.3d 1327, 1329
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(11th Cir. 2002) (reviewing de novo the dismissal of a § 2255 motion as second or
successive).
AFFIRMED.
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