Victor G. Baxter v. United States ( 2012 )


Menu:
  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    JANUARY 17, 2012
    No. 11-12216
    Non-Argument Calendar            JOHN LEY
    CLERK
    ________________________
    D.C. Docket Nos. 1:10-cv-20260-UU,
    0:02-cr-60200-UU-1
    VICTOR G. BAXTER,
    llllllllllllllllllllllllllllllllllllllll                             Petitioner-Appellant,
    versus
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    ________________________
    (January 17, 2012)
    Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.
    PER CURIAM:
    Victor Baxter, a federal prisoner, appeals pro se the district court’s denial of
    his motion to release a hold on property, filed under Fed.R.Crim.P. 41(g), and his
    motion to disqualify the district judge, filed pursuant to 
    28 U.S.C. § 455
    . For the
    reasons set forth below, we affirm.
    I.
    In 2002, a federal grand jury issued a seven-count superseding indictment
    against Baxter, charging him with several drug and firearm offenses. The
    indictment contained a forfeiture count, wherein the government sought forfeiture
    of cash and other property under 
    21 U.S.C. § 853
    (a)(1), (a)(2). In September
    2003, a jury convicted Baxter on two counts (distributing and possessing with
    intent to distribute illegal drugs) and acquitted him of the other five counts. In
    October 2003, the forfeiture count against Baxter was dismissed, and the district
    court ordered the government to return the property that had been seized from him.
    In March 2011, after Baxter’s direct criminal proceedings and his 
    28 U.S.C. § 2255
     proceedings ended, he filed a motion to release a hold on property,
    pursuant to Fed.R.Crim.P. 41(e).1 Baxter alleged that, in 2003, after the court had
    ordered the return of his seized property, the government placed a “hold” on his
    Ford F-150 pick-up truck in violation of the court’s order, and the hold was still
    pending, causing distress to himself and his family.
    1
    Rule 41(e) is now codified as Rule 41(g). See United States v. Howell, 
    425 F.3d 971
    , 976
    n.3 (11th Cir. 2005).
    2
    The district court issued an order denying and dismissing Baxter’s motion.
    The court stated that the motion was unclear, that it was difficult to determine to
    which docket (among several) the motion belonged, and that the court was “not
    convinced” that it had jurisdiction to consider the motion on the merits, even if
    Baxter’s allegations were true.
    Subsequently, Baxter moved to disqualify the district court judge, pursuant
    to 
    28 U.S.C. § 455
    . Baxter’s sole reason for disqualification was the judge’s order
    denying his motion to release the hold on property. He contended, essentially, that
    the judge’s statement regarding the lack of jurisdiction constituted evidence of
    bias. The district court denied Baxter’s motion on the merits.
    II.
    We review de novo questions concerning a district court’s subject matter
    jurisdiction and may affirm “for any reason supported by the record, even if not
    relied upon by the district court.” United States v. Al-Arian, 
    514 F.3d 1184
    , 1189
    (11th Cir. 2008) (quotation omitted). Rule 41(g) provides, in part: “A person
    aggrieved by an unlawful search and seizure of property or by the deprivation of
    property may move for the property’s return.” Fed.R.Crim.P. 41(g). When an
    owner “invokes Rule 41(g) after the close of all criminal proceedings, the court
    treats the motion for return of property as a civil action in equity.” United States
    3
    v. Machado, 
    465 F.3d 1301
    , 1307 (11th Cir. 2006) (quotation omitted), overruled
    on other grounds, as recognized in United States v. Lopez, 
    562 F.3d 1309
    ,
    1311-13 (11th Cir. 2009). Consequently, such Rule 41(g) actions are subject to
    the six-year statute of limitations found in 
    28 U.S.C. § 2401
    (a). Id.; see 
    28 U.S.C. § 2401
    (a) (“[E]very civil action commenced against the United States shall be
    barred unless the complaint is filed within six years after the right of action first
    accrues.”).
    In this case, the forfeiture allegations against Baxter were dismissed in
    October 2003, and he asserted in his Rule 41(g) motion that the government
    illegally placed a hold on his vehicle in 2003. Yet he waited more than six years,
    until 2011, before filing the Rule 41(g) motion, rendering the motion untimely.
    See 
    28 U.S.C. § 2401
    (a); Machado, 465 F.3d at 1307 (stating that the § 2401(a)
    limitations period began to run from the final order of forfeiture). While the
    government had not relied on the statute of limitations as a defense, the limitations
    period in § 2401(a) is jurisdictional and cannot be waived. See Ctr. for Biological
    Diversity v. Hamilton, 
    453 F.3d 1331
    , 1334 (11th Cir. 2006) (“Unlike an ordinary
    statute of limitations, § 2401(a) is a jurisdictional condition attached to the
    government’s waiver of sovereign immunity.” (quotation omitted)). As a result,
    the district court had no jurisdiction to consider Baxter’s Rule 41(g) motion and
    4
    correctly dismissed it for lack thereof. See Machado, 465 F.3d at 1307 (stating
    that the defendant’s Rule 41(g) motion, filed after the six-year limitations period
    expired, “had been rendered legally unpalatable by the passage of time.”).
    Because the district court had no jurisdiction to hear Baxter’s motion to
    release the hold on property, there were no proceedings pending before the court
    from which the judge could have disqualified herself. Accordingly, the court also
    lacked jurisdiction over Baxter’s motion for disqualification. See United States v.
    Elso, 
    571 F.3d 1163
    , 1165-66 (11th Cir. 2009) (holding that the district court
    lacked jurisdiction over a motion for recusal because no proceedings were pending
    before the court at the time the recusal motion was filed), cert. denied, 
    130 S.Ct. 2075
     (2010). Therefore, we affirm.
    AFFIRMED.
    5
    

Document Info

Docket Number: 11-12216

Judges: Tjoflat, Edmondson, Fay

Filed Date: 1/17/2012

Precedential Status: Non-Precedential

Modified Date: 11/5/2024