George William Wheeler v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10428
Non-Argument Calendar
____________________
GEORGE WILLIAM WHEELER,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket Nos. 5:12-cv-08027-KOB,
5:09-cr-00260-KOB-HNJ-1
____________________
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2 Opinion of the Court 21-10428
Before WILSON, JILL PRYOR, and LAGOA, Circuit Judges.
PER CURIAM:
George William Wheeler, a federal prisoner, appeals the dis-
trict court’s order construing his motion filed under Federal Rules
of Civil Procedure 59 and 60 as an unauthorized second or succes-
sive 28 U.S.C. § 2255 motion to vacate and dismissing the motion
without prejudice for lack of jurisdiction. The government, in
turn, has moved for summary affirmance of the district court’s or-
der.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
We review de novo a district court’s dismissal of a § 2255
motion as second or successive.
Boyd v. United States, 754 F.3d
1298, 1301 (11th Cir. 2014). We review the denial of a motion for
reconsideration for an abuse of discretion.
United States v.
Llewlyn, 879 F.3d 1291, 1294 (11th Cir. 2018). A district court
abuses its discretion when it “applies an incorrect legal standard”
or “follows improper procedures in making a determination.”
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21-10428 Opinion of the Court 3
Diveroli v. United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (quo-
tation marks omitted).
Normally, a federal prisoner must collaterally attack his con-
viction and sentence through a § 2255 motion.
See 28 U.S.C.
§ 2255(a);
Boyd, 754 F.3d at 1301. Under the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), a prisoner can file only
one § 2255 motion as a matter of right and must receive our per-
mission to file a second or successive § 2255 motion.
Boyd, 754
F.3d at 1301;
see 28 U.S.C. § 2255(h),
cross-referencing 28 U.S.C.
§ 2244. Without our authorization, the district court lacks jurisdic-
tion to consider a second or successive § 2255 motion.
Farris v.
United States, 333 F.3d 1211, 1216 (11th Cir. 2003). When an earlier
habeas petition is dismissed with prejudice or on the merits, a later
petition is considered “second or successive.”
See Boyd, 754 F.3d
at 1302.
In classifying post-judgment motions, we have determined
that the style of a motion is not controlling.
Finch v. City of
Vernon, 845 F.2d 256, 258 (11th Cir. 1988). Post-conviction mo-
tions that raise “an asserted federal basis for relief from a state
court’s judgment of conviction” should be construed as habeas pe-
titions, subject to the AEDPA’s requirements.
See Gonzalez v.
Crosby, 545 U.S. 524, 530–32 (2005) (addressing when Fed. R. Civ.
P. 60(b) motions should be construed as habeas petitions). The Su-
preme Court has explained that a motion for reconsideration is to
be treated as a successive habeas petition if it (1) “seeks to add a
new ground of relief”; or (2) “attacks the federal court’s previous
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4 Opinion of the Court 21-10428
resolution of a claim on the merits.”
Id. at 532. Where, however,
a motion for reconsideration “attacks, not the substance of the fed-
eral court’s resolution of a claim on the merits, but some defect in
the integrity of the federal habeas proceedings,” the motion is not
a successive habeas petition.
Id.
Here, there is no substantial question that the district court
properly dismissed without prejudice Wheeler’s motion.
Groen-
dyke Transp., 406 F.2d at 1162. To begin with, although Wheeler
claimed that the district court failed to address his Sixth Amend-
ment Confrontation Clause claim, the record shows that he did not
raise such a claim in his original § 2255 motion or the amendments
thereto. So although he claimed he was attacking the integrity of
his § 2255 proceedings, Wheeler was instead seeking to raise a new
claim for relief and attacking the district court’s previous resolution
of several of his other claims. Thus, the district court properly con-
strued these motions as second or successive § 2255 motions.
See
Gonzalez, 545 U.S. at 532.
Wheeler brought before a § 2255 motion, which the district
court denied with prejudice. And because he did not receive our
permission to file a second or successive § 2255 motion, the district
court did not have jurisdiction to consider his motions.
See Boyd,
754 F.3d at 1302;
Farris, 333 F.3d at 1216; 28 U.S.C. § 2255(h). Thus,
the government’s position that the district court properly dis-
missed without prejudice Wheeler’s motions for lack of jurisdic-
tion is “clearly right as a matter of law,” and any appeal would be
frivolous.
Groendyke Transp., 406 F.2d at 1162.
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21-10428 Opinion of the Court 5
Accordingly, we GRANT the government’s motion for
summary affirmance. Wheeler’s motions for judicial notice and
discovery are DENIED.
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