USA v. Wayne Burcks

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13353
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE BURCKS,
a.k.a. Wayne Burkes,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:15-cr-60330-WPD-1
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2 Opinion of the Court 22-13353
____________________
Before LAGOA , BRASHER , and B LACK , Circuit Judges.
PER CURIAM:
Wayne Burcks, a federal prisoner proceeding
pro se, appeals
the district court’s denial of his Federal Rule of Criminal Procedure
35 motion to correct an illegal sentence for lack of jurisdiction. He
asserts the district court could not
sua sponte raise the issue of its
subject matter jurisdiction, the court erred when it denied his Rule
35 motion, and the Government waived any opposition to his Rule
35 motion by failing to object in the district court. The Govern-
ment responds by moving for summary affirmance of the district
court’s order denying Burcks’s Rule 35 motion and asserts the dis-
trict court did not err in concluding it lacked jurisdiction to con-
sider Burcks’s motion under both Rule 35, as it was untimely, and
under 28 U.S.C. § 2255, as it was an unauthorized successive
§ 2255 motion.
The Government is entitled to summary affirmance of the
district court’s order denying Burcks’s Rule 35 motion for a lack of
subject matter jurisdiction because its position is clearly correct as
a matter of law.1
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1 We review
de novo whether a district court had the authority to resentence
the defendant under Rule 35(a) and § 2255.
United States v. Sjeklocha,
114 F.3d 1085, 1087 (11th Cir. 1997).
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22-13353 Opinion of the Court 3
1162 (5th Cir. 1969)2 (stating summary disposition is appropriate,
in part, 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”).
First, Burcks’s Rule 35(a) motion was untimely as it was filed
years after the district court imposed his sentence, which was far
outside the 14-day window for filing a Rule 35(a) motion.
See Fed.
R. Crim. P. 35(a). The timely filing of a Rule 35(a) motion is a ju-
risdictional prerequisite, so the district court did not err when it
found it lacked jurisdiction to consider Burcks’s untimely Rule
35 motion.
See United States v. Phillips, 597 F.3d 1190, 1196-97
(11th Cir. 2010) (holding the time limitation in Rule 35(a) is juris-
dictional, as there is no inherent authority for a district court to
modify a sentence).
Second, even construing Burcks’s motion as a § 2255 mo-
tion, the district court did not err in finding it lacked jurisdiction to
consider it because he failed to obtain prior authorization from this
Court to file a successive § 2255 motion.
See Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“[T]o file a second
or successive § 2255 motion, the movant must first file an applica-
tion with the appropriate court of appeals for an order authorizing
2 In
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth Cir-
cuit handed down prior to close of business on September 30, 1981.
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4 Opinion of the Court 22-13353
the district court to consider it.”). Thus, the district court did not
have the jurisdiction to consider his construed successive
§ 2255 motion.
Id. (“Without authorization, the district court lacks
jurisdiction to consider a second or successive petition.”).
Burcks’s argument the district court erred when it
sua
sponte raised the issue of its subject matter jurisdiction over his
motion is without merit because the district court had the duty to
ensure it had subject matter jurisdiction and it was permitted to do
so
sua sponte.
See Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th
Cir. 2001) (stating a federal court “must zealously insure that juris-
diction exists over a case, and should itself raise the question of sub-
ject matter jurisdiction at any point in the litigation where a doubt
about jurisdiction arises,” as it is “powerless to act beyond its stat-
utory grant of subject matter jurisdiction”). Likewise, because sub-
ject matter jurisdiction cannot be waived, the Government did not
waive the defense by failing to raise the issue below, and Burcks’s
argument to the contrary fails.
See United States v. De La Garza,
516 F.3d 1266, 1271 (11th Cir. 2008) (stating subject matter jurisdic-
tion cannot be waived).
Therefore, we GRANT the government’s motion for sum-
mary affirmance of the district court’s denial of Burcks’s
pro se Rule
35 motion and DENY as moot its motion to stay the briefing sched-
ule.
AFFIRMED.
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