Gary William Holt v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 1, 2007
No. 07-11555 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00025-CR-1-HLM-4
GARY WILLIAM HOLT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 1, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Federal prisoner Gary William Holt, proceeding pro se, appeals the district
court’s (a) dismissal of his “Motion For District Court To Exercise Its Inherent
Authority To Recall A Judgment To Achieve Justice And/Or To Prevent An
Injustice (Good Cause And Extraordinary Circumstances)” (hereinafter “Motion
To Recall”) as a second or successive 28 U.S.C. § 2255 motion to vacate, and (b)
denial of his “Motion To Vacate Order Of March 27, 2007 And To Rehear Motion
For District Court To Exercise Its Inherent Authority To Recall Judgment To
Achieve Justice And/Or Prevent An Injustice” (hereinafter “Motion For
Reconsideration”). The district court granted Holt a certificate of appealability to
contest the denial of both motions. For the reasons that follow, we AFFIRM.
I. BACKGROUND
A federal jury convicted Holt in 1997 and he directly appealed his
conviction, which we affirmed, United States v. Holt, 149 F.3d 1196 (11th Cir.
1998). The Supreme Court denied certiorari. Holt v. United States, 527 U.S.
1028, 119 S.Ct. 2380 (1999). In 2000, Holt filed a motion collaterally attacking
his conviction under 28 U.S.C. § 2255. The district court denied Holt’s § 2255
motion and he did not appeal. Instead, he filed a motion for a writ of audita querla
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in 2004 which was again denied by the district court. He appealed the district
court’s denial to us and we affirmed. United States v. Holt, 417 F.3d 1172 (11th
Cir. 2005) (per curiam). We found the motion barred as a second or successive
motion under 28 U.S.C. § 2255 that lacked prior permission to file from us in
violation of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (1996). Holt, 417 F.3d at 1175 (citing 28 U.S.C. §
2244(b)(3)(A); § 2255; § 2244).
We have jurisdiction to review the district court’s denial of both motions
because the district court granted Appellant Holt a certificate of appealability on
both motions. 28 U.S.C. § 2253. We will address the motions in turn.
II. DISCUSSION
A. Motion To Recall
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).
While Holt contends that his Motion to Recall is not a § 2255 motion, federal
courts “have an obligation to look behind the label of a motion filed by a pro se
inmate and determine whether the motion is, in effect, cognizable under a different
remedial statutory framework,” United States v. Jordan, 915 F.2d 622, 624-25
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(11th Cir. 1990) (affirming a district court order which treated a motion filed under
Federal Rule of Criminal Procedure 35(a) as a successive § 2255 motion).
The district court properly determined that Holt’s Motion To Recall was in
reality a successive § 2255 motion. Holt insists in his reply brief that his Motion to
Recall is not a § 2255 motion but “one of jurisdictional character” or in the
alternative, a violation of his constitutional rights, Appellant’s Reply Br. at 2, 3,
yet both arguments fall within § 2255's ambit:
A prisoner in custody under sentence of a court established by Act of
Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255 ¶ 1 (emphasis added).
In addition to the jurisdictional and constitutional claims, Holt also argued in
his Motion to Recall that the district court retained broad inherent authority to
recall an imposed sentence. We rejected a prisoner’s argument that the district
court had inherent authority to resentence him in United States v. Diaz-Clark, 292
F.3d 1310 (11th Cir. 2002). We stated that a district court could modify a sentence
only through Federal Rule of Criminal Procedure 35, or “to the extent otherwise
expressly permitted by statute.” Id. at 1315-16 (quoting 18 U.S.C. § 3582). A
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district court only retains jurisdiction to modify a sentence on a defendant’s motion
for seven days after the imposition of sentence. Rule 35(a); Diaz-Clark, 292 F.3d
at 1317. The notes to the 1991 Amendments to Rule 35 explicitly contemplate that
a defendant detained pursuant to an illegal sentence “could seek relief under 28
U.S.C. § 2255 if the seven day period provided in [Rule 35(a)] has elapsed.” Id. at
1316 (quoting Rule 35 advisory committee notes (1991)). Our opinion in Diaz-
Clark makes clear that a district court’s authority to modify a current criminal
sentence is restricted to Rule 35 or § 2255. Because the seven-day period for
modifying a sentence had elapsed here, § 2255 was the only available statutory
basis for the relief sought by Holt. Our 2005 Holt opinion made clear that
common law relief is not available where post-conviction relief is available
through § 2255 as it is here. Holt, 417 F.3d at 1175. Therefore Holt’s only avenue
of relief for these claims is through § 2255, which encompasses all of his
arguments.
The district court properly construed Holt’s Motion To Recall as a § 2255
motion. Because Holt had not received prior authorization from us under 28
U.S.C. § 2244(b)(3)(A), the district court properly determined that it lacked
jurisdiction to consider a second or successive § 2255 motion. See Hill v. Hopper,
112 F.3d 1088, 1089 (11th Cir. 1997) (per curiam). Accordingly, we affirm the
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district court’s order dismissing Holt’s Motion To Recall.
B. Motion For Reconsideration
Because Holt’s Motion For Reconsideration was filed within 10 days of the
district court’s March 27, 2007, order, we construe it as a Federal Rule of Civil
Procedure 59(e) motion to alter or amend judgment. Mahone v. Ray, 326 F.3d
1176, 1178 n.1 (11th Cir. 2003); Finch v. City of Vernon, 845 F.2d 256, 258-59
(11th Cir. 1988) (per curiam). We review the denial of Rule 59(e) motion for an
abuse of discretion. Drago v. Jenne, 453 F.3d 1301, 1305 (11th Cir. 2006). Rule
59(e) may not be used “to relitigate old matters, raise argument or present evidence
that could have been raised prior to the entry of judgment.” Michael Linet, Inc. v.
Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005).
Holt does not challenge the denial of his Motion For Reconsideration on
appeal. Instead, he argues that the original 1997 sentencing order is the order
which should be reconsidered. Appellant’s Reply Br. at 2, 3. This argument
substantively tracks the points he makes in his Motion to Recall, but does not
address the Motion for Reconsideration. As Holt has not argued his claim that the
district court abused its discretion when it did not reconsider its 2007 order, he
abandoned any argument challenging the denial of this motion on appeal. Rowe v.
Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
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Even were we to construe Holt’s brief so liberally that we ignored the
abandonment of his claim on appeal, the district court still did not err in denying
the Motion For Reconsideration for two independent reasons. See Haines v.
Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596 (1972) (per curiam) (noting that
courts should liberally construe the motions of pro se petitioners); and Castro v.
United States, 540 U.S. 375, 381-82, 124 S.Ct. 786, 791-92 (2003) (listing reasons
for liberal treatment of pro se pleadings). First, Holt’s Motion For Reconsideration
improperly reargued prior arguments and recycled cases cited in his Motion To
Recall. Michael Linet, Inc., 408 F.3d at 763. Second, in light of our binding
precedent in Diaz-Clark, it cannot be said that the district court committed an abuse
of discretion in denying the Motion To Recall, which was based on the theory of a
district court’s inherent power discussed in a Ninth Circuit case and a district court
case. Carrington v. United States, 470 F.3d 920 (9th Cir. 2006) withdrawn and
superseded, – F.3d –, 2007 WL 2597326 (9th Cir. Sept. 11, 2007); United States v.
Holland, 380 F. Supp. 2d 1264 (N.D. Ala. 2005). Since Holt failed to show a basis
for relief under Rule 59(e), the district court did not abuse its discretion in denying
his Motion For Reconsideration.
Finally, we liberally construe Holt’s appellate brief as an implied petition to
file a second § 2255 motion. Washington v. United States, 173 Fed. Appx. 792,
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794-95 (11th Cir. 2006) (per curiam); see Haines 404 U.S. at 520, 92 S.Ct. at 596.
To grant Holt leave to file a second § 2255 motion he must make a prima facie
showing of either:
(1) newly discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
the movant guilty of the offense [at trial]; or
(2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255; § 2244(b)(3)(A); § 2244(b)(3)(C); see In re Anderson, 396 F.3d
1336, 1337 (11th Cir. 2005) (describing constraints placed on successive habeas
petitions). Holt’s arguments do not satisfy either of the two requirements for this
court to grant a certificate of appealability (“COA”). Holt alleges no new evidence
which would have impacted his guilt at trial. Holt cites no new rule of
constitutional law made retroactive by the Supreme Court which would assist his
case, nor have we found any upon careful review. Accordingly, we deny a COA
on the issues Holt has raised in the district court and before us.
Therefore, we affirm both district court orders on appeal and deny Holt’s
implied request for authorization to file a successive § 2255 petition.
AFFIRMED.
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