Jimmy Cobb v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13909
Non-Argument Calendar
____________________
JIMMY COBB,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket Nos. 4:22-cv-00072-CDL-MSH,
4:17-cr-00051-CDL-MSH
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2 Opinion of the Court 22-13909
____________________
Before JILL PRYOR , N EWSOM, and A NDERSON , Circuit Judges.
PER CURIAM:
Jimmy Cobb is currently serving a five-year supervised re-
lease term, following his 24-month prison sentence for using inter-
state facilities to transmit information about a minor, in violation
of 18 U.S.C. § 2425. Proceeding pro se, Cobb appeals the district
court’s order dismissing his 28 U.S.C. § 2255 motion for lack of ju-
risdiction on the ground that it was an unauthorized successive mo-
tion.1 Cobb previously filed a § 2255 motion that was adjudicated
on the merits. He did not receive our permission to file a second
such motion or show that his motion falls into an exception, so the
district court properly dismissed the instant § 2255 motion for lack
of jurisdiction. We affirm.
* * *
As background: Cobb filed his original § 2255 motion in
2018, and it was denied in full on the merits. Because his original
motion was an adjudication on the merits, any subsequent § 2255
1 Cobb did not sign his notice of appeal or obtain a certificate of appealability
before filing. But we have jurisdiction despite this error because a litigant’s
failure to comply with Fed. R. Civ. P. 11’s signature requirement is non-juris-
dictional, and a certificate of appealability is not required if the district court
dismisses a § 2255 motion for lack of jurisdiction. See Becker v. Montgomery, 532
U.S. 757, 765–66 (2001); Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir.
2004).
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22-13909 Opinion of the Court 3
motion challenging the same judgment authorizing his confine-
ment, including the one at issue here, required him to receive our
permission before filing—unless the motion fell within the “small
subset of unavailable claims that must not be categorized as succes-
sive.” Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011).
The district court dismissed Cobb’s motion for lack of juris-
diction on the ground that Cobb did not obtain our permission to
file the motion. Cobb then timely filed a document reasserting the
merits of his motion, which the court construed as a notice of ap-
peal of the district court’s decision.
We review de novo a district court’s dismissal of a § 2255
motion as second or successive. McIver v. United States, 307 F.3d
1327, 1329 (11th Cir. 2002). A successive § 2255 motion requires
our prior authorization, which may be granted only if the motion
contains a claim involving newly discovered evidence demonstrat-
ing factual innocence or a new rule of constitutional law made ret-
roactive to cases on collateral review by the Supreme Court. See 28
U.S.C. §§ 2244(b)(3)(A), 2255(h)(1), (2).
A motion is successive under § 2244(b) when it is filed after
a prior motion and challenges the same judgment “authorizing the
petitioner’s confinement.” Patterson v. Sec’y, Fla. Dep’t of Corr., 849
F.3d 1321, 1325 (11th Cir. 2017) (en banc). Absent our authoriza-
tion, the district court lacks jurisdiction to consider a successive §
2255 motion. See Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003).
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4 Opinion of the Court 22-13909
A numerically successive § 2255 motion, however, does not
always qualify as “second or successive” within the meaning of §
2244. See Stewart 646 F.3d at 859. Where the basis for a numerically
successive motion did not exist before proceedings on the initial
§ 2255 motion concluded, the claim falls within “a small subset of
unavailable claims that must not be categorized as successive,”
such as claims based on a defect that did not arise or ripen until
after the conclusion of the previous petition. Id. at 863. Claims
that are based on facts that existed at the time of the first habeas
petition, but were not discovered until later, are still successive. See
id.
We liberally construe pro se pleadings. Campbell v. Air Ja.
Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014). But “issues not briefed
on appeal by a pro se litigant are deemed abandoned.” Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appellant “fails to
adequately brief a claim when he does not plainly and prominently
raise it.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014) (quotation marks omitted).
Cobb does not specifically challenge the district court’s rul-
ing that his motion was (1) second or successive and (2) filed with-
out our permission. He has therefore abandoned that argument.
Accordingly, we affirm the district court’s dismissal without reach-
ing the merits.2
2 We note that even if we were to consider the merits of Cobb’s argument, the
result would be the same. He argues that he is entitled to equitable tolling of
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22-13909 Opinion of the Court 5
* * *
The district court properly dismissed Cobb’s § 2255 motion
for lack of subject matter jurisdiction because he did not receive
our permission to file a successive motion based on newly discov-
ered evidence or raise any claim based on a defect or fact that did
not arise or ripen until after the conclusion of the previous motion
to vacate. Accordingly, we affirm.
AFFIRMED.
the statute of limitations period to seek post-conviction relief in federal court
to prevent a fundamental miscarriage of justice. His brief asserts that the gov-
ernment used false testimony and fabricated facts to support his conviction,
violated his due process rights, and that his counsel was ineffective in advising
him to enter a guilty plea premised on these false facts. Cobb argued that he
had acquired “new” evidence that would have allowed a reasonable juror to
acquit him because it demonstrated his actual innocence. But he admits this
newly discovered evidence that provides the main basis for his argument was
available to both parties while his criminal case was ongoing, and they de-
clined to use it. He pointed to no defect or fact that did not arise or ripen until
after the conclusion of the previous petition, and therefore, even on the merits
of his motion, we would affirm the district court’s dismissal.
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