Case: 19-12731 Date Filed: 02/11/2020 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12731
Non-Argument Calendar
________________________
D.C. Docket Nos. 0:19-cv-61587-WPD; 0:98-cr-06128-WJZ-1
ROBERT MARVIN HARRIS,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 11, 2020)
Before GRANT, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner/Appellant Robert Marvin Harris appeals the district court’s order
Case: 19-12731 Date Filed: 02/11/2020 Page: 2 of 4
dismissing his pro se motion to modify or vacate his life sentence for his
conviction pursuant to 21 U.S.C. § 841. Harris contends that the district court had
jurisdiction over his motion and that he is entitled to relief because of the First Step
amendments that made retroactive the amendments of the Fair Sentencing Act to §
841 cases that were final before August 2010. The government responds with a
motion for summary affirmance and a motion to stay the briefing schedule. After
reviewing the record, we grant the government’s motion for summary affirmance
and deny its motion to stay the briefing schedule as moot.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or 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.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir.
1969). 1
“In an appeal challenging a [28 U.S.C.] § 2255 ruling, we review legal
issues de novo and factual findings for clear error.” Murphy v. United States,
634
F.3d 1303, 1306 (11th Cir. 2011). We will also review de novo issues concerning
the district court’s subject matter jurisdiction. United States v. Al-Arian,
514 F.3d
1
See Bonner v. City of Prichard, Ala,
661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting
as binding precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981).
2
Case: 19-12731 Date Filed: 02/11/2020 Page: 3 of 4
1184, 1189 (11th Cir. 2008). We deem arguments not raised in a party’s initial
appellate brief to be abandoned. See United States v. Levy,
379 F.3d 1241, 1243
(11th Cir. 2004).
“Section 2255 allows a federal prisoner to seek post-conviction relief from a
sentence imposed in violation of the Constitution or laws of the United States or if
it is otherwise subject to collateral attack.”
Murphy, 634 F.3d at 1306. Thus, to
collaterally attack the validity of a federal sentence, a defendant must typically
proceed under § 2255. See Darby v. Hawk-Sawyer,
405 F.3d 942, 944–45 (11th
Cir. 2005). A federal prisoner who wishes to file a second or successive motion to
vacate, set aside, or correct sentence is required to move the court of appeals for an
order authorizing the district court to consider such a motion. See 28 U.S.C.
§ 2255(h), cross-referencing 28 U.S.C. § 2244. “Without authorization, the district
court lacks jurisdiction to consider a second or successive petition.” Farris v.
United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
In this case, the district court correctly determined that it lacked jurisdiction
over Harris’s § 2255 motion and dismissed the motion because it was a successive
motion that he filed without seeking and obtaining the proper authorization. See
id. Harris’s motion, although not labeled solely as one brought pursuant to § 2255,
sought relief from his sentence because Harris asserted that his sentence was
improperly enhanced by a prior Florida state court conviction and a prior federal
3
Case: 19-12731 Date Filed: 02/11/2020 Page: 4 of 4
conviction. Harris also claimed that his total sentence violated the Double
Jeopardy Clause. Hence, Harris was clearly attempting to challenge the validity of
his sentence, and such a challenge is properly brought under § 2255(a). See
Darby,
405 F.3d at 944. However, because Harris had previously filed a § 2255 motion
that the court denied on the merits, the district court correctly determined that it
lacked jurisdiction over the present motion because Harris filed it without
obtaining the proper permission. 28 U.S.C. § 2255(h);
Farris, 333 F.3d at 1216.
Thus, we conclude from the record that there is no substantial question as to
the outcome of the case, and the government’s position is correct as a matter of
law. See
Davis, 406 F.2d at 1162. Therefore, we do not need to address whether
Harris would otherwise be entitled to the relief that he requests. Accordingly, the
government’s motion for summary affirmance is GRANTED, and its motion to
stay the briefing schedule is DENIED as moot. 2
AFFIRMED and motion DENIED.
2
We also deny as moot Harris’s motion to expedite this appeal.
4
