USCA11 Case: 20-13698 Date Filed: 06/17/2021 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13698
Non-Argument Calendar
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D.C. Docket No. 2:00-cr-00347-LSC-JHE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARIO ANTON LEE,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 17, 2021)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Mario Anton Lee, proceeding pro se, appeals the district court’s order denying
his Rule 60(b) motion for relief from a denial of his motion to vacate under
28 U.S.C.
§ 2255, motion to reduce his sentence under
18 U.S.C. § 3582(c)(2), and motion for
compassionate release under
18 U.S.C. § 3582(c)(1)(A). The government moves for
summary affirmance. We grant the government’s motion in part and deny it in part.
I
Summary disposition is warranted 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 . . . the appeal is frivolous.” Groendyke Transport,
Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
II
We conclude that there is no substantial question that Mr. Lee’s appeal of the
district court’s denial of his Rule 60(b) motion fails.
First, some of the claims that Mr. Lee raised in his Rule 60(b) motion (e.g.,
ineffective assistance of counsel) attempt to relitigate the substantive claims he had
raised in his § 2255 motion, and which the district court had rejected. Those claims
attack the district court’s resolution of his § 2255 motion on the merits. They
therefore constitute a second or successive § 2255 motion. See Gonzalez v. Crosby,
545 U.S. 524, 532 (2005). For those claims, Mr. Lee was required to obtain from us
an order authorizing the district court to consider his second or successive § 2255
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motion. See Williams v. Chatman,
510 F.3d 1290, 1294–95 (11th Cir. 2007);
28
U.S.C. § 2244(b)(3). He did not do so, and consequently the district court lacked
jurisdiction to consider them. See
id. 1
Second, we acknowledge that some of Mr. Lee’s claims arguably do not attack
the district court’s merits resolution of his § 2255 motion. Such claims may not
constitute a second or successive § 2255 motion. See Gonzalez,
545 U.S. at 532 n.
4. For us to review those claims, however, Mr. Lee would need a certificate of
appealability (“COA”). See Jackson,
437 F.3d 1294. The district court did not grant
him one. Mr. Lee has moved us to grant him a COA, but he did so months after filing
his brief on appeal, numerous motions, and his reply to the government’s motion for
summary affirmance. On the other hand, the government has not objected to the
timing of Mr. Lee’s motion, and, in any event, “we routinely construe a defendant’s
notice of appeal as a motion for a COA.” United States v. Futch,
518 F.3d 887, 894
(11th Cir. 2008).
In the end, whether we construe Mr. Lee’s notice of appeal as a motion for a
COA or focus instead on his formal motion, we reject his request for a COA. We
1
A certificate of appealability generally is a jurisdictional prerequisite to appeal the denial of a
Rule 60(b) motion for relief from a judgment in a § 2255 proceeding. See Jackson v. Crosby,
437
F.3d 1290, 1294 (11th Cir. 2006);
28 U.S.C. § 2253(c). But no certificate of appealability is
required for us to review a district court’s jurisdictional dismissal. See Williams,
510 F.3d at 1294–
95. See also Hubbard v. Campbell,
379 F.3d 1245, 1247 (11th Cir. 2004).
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have held that where a district court denies a Rule 60(b) motion on procedural
grounds, “a petitioner will be granted a certificate of appealability only if [he] makes
both a substantial showing that he had a valid claim of the denial of a constitutional
right, and a substantial showing that the procedural ruling is wrong.” Jackson,
437
F.3d at 1295. Here, the district court denied Mr. Lee’s Rule 60(b) motion because,
among other reasons, he had not made it “within a reasonable time,” as required by
Rule 60(c)(1). See Fed. R. Civ. P. 60(c)(1). We agree.
Mr. Lee filed his Rule 60(b) motion over 13 years after the denial of his § 2255
motion. And none of the arguments that he raises to allege compliance with the
“within a reasonable time” requirement justify the more than 13-year delay. In short,
Mr. Lee has not made a substantial showing that the district court’s procedural ruling
is wrong. 2
2
Our holding is independent of whether Mr. Lee’s motion is construed as a motion under Rule
60(b)(1), as the district court understood it, or Rule 60(b)(6) as Mr. Lee’s motion and brief on
appeal often suggest. Rule 60(c)(1) applies to motions filed under both provisions.
Separately, Mr. Lee has forfeited any argument based on the premise that his motion was a Rule
60(b)(4) motion for relief from a void judgment. See Fed. R. Civ. P. 60(b)(4). In his brief on appeal
and in his reply to the government’s motion for summary affirmance, Mr. Lee invokes Rule
60(b)(4) and argues that Rule 60(c)(1)’s “within a reasonable time” requirement does not apply to
Rule 60(b)(4) motions. But in the district court Mr. Lee did not invoke Rule 60(b)(4) nor argue
that the court’s order on his § 2255 motion was void for lack of jurisdiction, as he does on appeal.
Therefore, he has forfeited any argument based on the premise that his was a Rule 60(b)(4) motion.
See Access Now, Inc. v. S.W. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
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For the foregoing reasons, we grant the government’s motion for summary
affirmance of the district court’s denial of Mr. Lee’s Rule 60(b) motion.
III
On the other hand, we deny the government’s motion for summary affirmance
as to the district court’s denial of Mr. Lee’s § 3582(c)(2) motion. We previously
affirmed an order relating to an earlier § 3582(c)(2) motion by Mr. Lee. See United
States v. Lee, 820 F. App’x. 998 (11th Cir. 2020). That opinion, the government
contends, barred the district court from reconsidering its prior order under the law-
of-the-case doctrine. We do not see, however, the government’s position as so
“clearly right as a matter of law . . . that there can be no substantial question” about
it. See Groendyke,
406 F.2d at 1162. 3
Under the law-of-the-case doctrine, an appellate court’s findings of fact and
conclusions of law are binding in all subsequent proceedings in the same case. See
This That & the Other Gift & Tobacco, Inc. v. Cobb Cnty.,
439 F.3d 1275, 1283
(11th Cir. 2006). In effect, “the law-of-the-case doctrine bars relitigation of issues
that were decided either explicitly or by necessary implication.” See
id. “An
3
Mr. Lee labeled his motion a “Petition to Recall the Mandate,” but the district court construed it
as a § 3582(c)(2) motion. In his brief on appeal, Mr. Lee does not challenge that understanding. In
his reply to the government’s motion for summary affirmance, however, Mr. Lee argues that the
district court erred by recharacterizing his motion without providing him notice or an opportunity
to correct or withdraw it. We need not rule on that argument at this juncture, and for clarity we
refer to his motion as a § 3582(c)(2) motion.
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argument is rejected by necessary implication when the holding stated or result
reached is inconsistent with the argument.” United States v. Jordan,
429 F.3d 1032,
1035 (11th Cir. 2005).
In the § 3582(c)(2) motion underlying the present appeal, Mr. Lee argued that
the district court miscalculated his amended Sentencing Guidelines range when
granting his earlier § 3582(c)(2) motion. The government contends that in the appeal
of that earlier motion, Mr. Lee argued that the district court should have held a
hearing because it had miscalculated his amended Sentencing Guidelines range. We
held that the district court was not required to hold a hearing on the § 3582(c) motion.
See Lee, 820 F. App’x. at 999. So, the government says, we rejected Mr. Lee’s
miscalculation argument by necessary implication.
After reviewing the parties’ briefs from Mr. Lee’s prior appeal and our
opinion, we are not as sure as the government. Liberally construed, see Jones v. Fla.
Parole Commn.,
787 F.3d 1105, 1107 (11th Cir. 2015), Mr. Lee arguably alleged
that the district court should have held an evidentiary hearing because the judge
considering his motion was not the one who had originally sentenced him. The
failure to grant a hearing, in turn, resulted in the alleged miscalculation. In any event,
our holding was generic, reaffirming that district courts are not required to hold
evidentiary hearings in § 3582(c) proceedings as a general matter. See Lee, 820 F.
App’x. at 999. See also United States v. Caraballo-Martinez,
866 F.3d 1233, 1249
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(11th Cir. 2017). That holding was in line with the government’s primary argument
in the earlier appeal that district courts are not required to hold hearings in § 3582(c)
proceedings. In the context of the heightened standard for summary disposition, we
cannot conclude that our prior holding is inconsistent with the argument that the
district court miscalculated Mr. Lee’s amended Sentencing Guideline range. The
government may be right about the law-of-the-case doctrine, but not so clearly that
summary affirmance is appropriate.
Accordingly, we deny the government’s motion for summary affirmance of
the district court’s denial of Mr. Lee’s § 3582(c)(2) motion.
IV
Finally, we agree with the government that Mr. Lee has abandoned the issue
of whether the district court erred in denying his motion for compassionate release
under § 3582(c)(1)(A).
In addition to his Rule 60(b) and § 3582(c)(2) motions, Mr. Lee also filed a
motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A), which the
district court denied. In his brief on appeal, however, Mr. Lee does not challenge
that denial. Mr. Lee raises his challenge only in his reply and in a later pleading titled
“Reply Brief-To Amend to Clarify or Amplify the Original.”
Mr. Lee has abandoned that and every other issue not raised for the first time
in his brief on appeal. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008)
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(“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal
by a pro se litigant are deemed abandoned. Moreover, we do not address arguments
raised for the first time in a pro se litigant’s reply brief.”) (citations omitted). Thus,
we grant the government’s motion for summary affirmance of the district court’s
denial of Mr. Lee’s motion for compassionate release.
V
A
In addition to his motion for a COA, which we DENY, Mr. Lee has also filed
a series of pleadings and/or motions, which we resolve as follows:
• We DENY Mr. Lee’s “Reply Brief-To Amend to Clarify or Amplify
the Original,” to the extent it is intended as a motion to amend or
supplement his brief on appeal.
• We DENY AS MOOT Mr. Lee’s “Petition for Oral Argument,” to the
extent it requests oral argument prior to summary affirmance.
• We DENY AS MOOT Mr. Lee’s “Petition for Oral Arguments/
Appointment of Counsel/ In the Interest of Justice,” to the extent it
requests oral argument prior to summary affirmance, and we DENY it
to the extent it asks that Mr. Lee be appointed counsel.
• We DENY Mr. Lee’s “Petition for Release Bond/Bail Pursuant to
U.S.C.S. 3142.”
• We DENY Mr. Lee’s “Petition For Release Of Bail Pending Resolution
— In The Interest Of Justice Pursuant To Compassionate — Release.”
• We DENY Mr. Lee’s “Petition For Oral Argument In The Interest Of
Justice Pursuant To Sworn Declaration.”
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B
We GRANT the government’s motion for summary affirmance of the district
court’s denial of Mr. Lee’s Rule 60(b) motion and motion for compassionate release.
We DENY it in all other respects. The government’s brief is due within 30 days of
the filing of this opinion.
MOTION FOR SUMMARY AFFIRMANCE GRANTED IN PART
AND DENIED IN PART.
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