Bert S. Elizee v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13191
Non-Argument Calendar
____________________
BERT S. ELIZEE,
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. 9:20-cv-80994-KAM
____________________
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2 Opinion of the Court 20-13191
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Bert Elizee, a federal prisoner proceeding
pro se, appeals
from the district court’s dismissal of his 28 U.S.C. § 2255 motion
to vacate, set aside, or correct his sentence for lack of jurisdiction
on the ground that it was an impermissible second or successive
motion. He also appeals the denial of his subsequent motion for
reconsideration. Elizee maintains that his motion is proper and
that he is entitled to relief on the merits of his claim raised in the
motion. After review, we affirm.
I. Background
Elizee pleaded guilty in 2017 to one count of possession of
a firearm and ammunition by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e), and one count of possession of a
firearm in furtherance of a drug-trafficking crime, in violation of
18 U.S.C. § 924(c)(1)(A). He did not file a direct appeal. Elizee
filed his initial § 2255 motion in June 2018. On June 18, 2020, the
district court denied the motion on the merits and denied a
certificate of appealability (“COA”). Elizee sought a COA from
this Court, which we denied.
Meanwhile, Elizee filed a second § 2255 motion in the
district court on June 23, 2020, arguing that the indictment in his
case failed to state a claim for possession of a firearm by a
convicted felon in light of the Supreme Court’s decision in
Rehaif
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20-13191 Opinion of the Court 3
v. United States, 139 S. Ct. 2191 (2019). The district court
sua
sponte dismissed the § 2255 motion for lack of jurisdiction,
concluding that it was an impermissible second or successive
motion.1
Elizee then filed a motion for reconsideration, pursuant to
Federal Rule of Civil Procedure 59(e), arguing that the § 2255
motion was not second or successive within the meaning of
§ 2255 because he filed the motion within one year of the
Supreme Court’s
Rehaif decision, which announced a new rule of
law that was retroactively applicable to cases on collateral review.
The district court denied the motion for reconsideration,
explaining that
Rehaif did not extend the time to file a § 2255
motion because
Rehaif did not apply retroactively, and, even if it
did, Elizee still needed our permission under § 2255(h) before he
could file a second or successive § 2255 motion. This appeal
followed.
II. Discussion
“We review de novo the district court’s dismissal of a 28
U.S.C. § 2255 motion as second or successive.”
McIver v. United
States, 307 F.3d 1327, 1329 (11th Cir. 2002). The Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) provides that,
before a movant may file a second or successive § 2255 motion,
he first must obtain an order from the court of appeals
1 Alternatively, the district court denied the motion on the merits on the
ground that
Rehaif was not applicable to cases on collateral review.
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4 Opinion of the Court 20-13191
authorizing the district court to consider the motion.
See 28
U.S.C. §§ 2244(b)(3)(A), 2255(h). Absent authorization from this
Court, the district court lacks jurisdiction to consider a second or
successive motion to vacate sentence.
See Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003);
see also Armstrong v. United
States, 986 F.3d 1345, 1347 (11th Cir. 2021) (explaining that
without the requisite authorization, “the district court must
dismiss a second or successive § 2255 [motion] for lack of
jurisdiction”).
The district court properly dismissed Elizee’s § 2255
motion for lack of jurisdiction. After his initial § 2255 motion was
denied, Elizee filed a second-in-time § 2255 motion on June 23,
2020, but he did not have the required authorization from this
Court to file a second or successive § 2255 motion.
See 28 U.S.C.
§ 2244(b)(3)(A). Therefore, the district court lacked jurisdiction to
consider the June 23, 2020, § 2255 motion.
See id.;
Farris, 333
F.3d at 1216. Accordingly, the district court was required to
dismiss the motion.
Armstrong, 986 F.3d at 1347.
Similarly, the district court did not abuse its discretion in
denying Elizee’s motion for reconsideration.
See Mincey v. Head,
206 F.3d 1106, 1137 (11th Cir. 2000) (explaining that we review
the decision to grant or deny a Rule 59(e) motion for an abuse of
discretion). Contrary to Elizee’s arguments,
Rehaif did not
announce a new rule of constitutional law.
See In re Palacios, 931
F.3d 1314, 1315 (11th Cir. 2019). Accordingly, there was no basis
for reconsideration of the district court’s prior ruling.
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20-13191 Opinion of the Court 5
AFFIRMED.
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