DocketNumber: 21-13960
Filed Date: 6/28/2022
Status: Non-Precedential
Modified Date: 6/28/2022
USCA11 Case: 21-13960 Date Filed: 06/28/2022 Page: 1 of 4 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 21-13960 Non-Argument Calendar ____________________ KEITH BRYAN WEBB, Petitioner-Appellant, versus WARDEN, FCC COLEMAN 1, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:21-cv-00475-TPB-PRL ____________________ USCA11 Case: 21-13960 Date Filed: 06/28/2022 Page: 2 of 4 2 Opinion of the Court 21-13960 Before WILLIAM PRYOR, Chief Judge, LAGOA and ANDERSON, Circuit Judges. PER CURIAM: Keith Bryan Webb, a federal prisoner, appeals pro se the sua sponte dismissal of his successive motion to vacate his sentence.28 U.S.C. §§ 2244
(b)(3)(A), 2255(h). The United States moves for a summary affirmance and to stay the briefing schedule. Because “the position of [the United States] . . . is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case,” Groendyke Transp., Inc. v. Davis,406 F.2d 1158
, 1162 (5th Cir. 1969), we grant the motion for summary affirmance and dismiss as moot the motion to stay the briefing schedule. “Section 2255 allows a federal prisoner to seek post-convic- tion 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 v. United States,634 F.3d 1303
, 1306 (11th Cir. 2011). A federal prisoner must file a motion to vacate,28 U.S.C. § 2255
, to collaterally attack the legality of his sentence. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,851 F.3d 1076
, 1081 (11th Cir. 2017) (en banc). The prisoner must obtain permission from “the appropriate court of appeals” to file a second or successive mo- tion to vacate.28 U.S.C. § 2255
(h). “Without authorization, [a] dis- trict court lacks jurisdiction to consider a second or successive pe- tition.” United States v. Holt,417 F.3d 1172
, 1175 (11th Cir. 2005). USCA11 Case: 21-13960 Date Filed: 06/28/2022 Page: 3 of 4 21-13960 Opinion of the Court 3 Summary affirmance is appropriate because there is no sub- stantial question that the district court lacked jurisdiction to enter- tain Webb’s motion to vacate. See Groendyke,406 F.2d at 1162
. Despite labeling his filing as a petition for a writ of habeas corpus,28 U.S.C. § 2241
, Webb challenged the life sentence he received for murdering his son. United States v. Webb,796 F.2d 60
, 62 (5th Cir. 1986). He repeated the argument made in several postconviction motions that his conviction and sentence were unconstitutional due to a flaw in his indictment. In re Webb,575 U.S. 994
(2015) (dismissing petition for writ of habeas corpus and restricting future filings);Webb v. Warden Allenwood USP, 735 F. App’x 42 (3d Cir. 2018) (affirming the denial of Webb’s fourth postconviction peti- tion,28 U.S.C. § 2241
); United States v. Webb,165 F.3d 24
(5th Cir. 1998) (affirming the denial of Webb’s third motion to vacate). Webb had to challenge the validity of his sentence in a motion to vacate, which he had to file in the “court which imposed the sen- tence,”28 U.S.C. § 2255
(a), instead of in the “district wherein . . . [he is] restrain[ed],”id.
§ 2241(a). And because Webb previously filed a motion to vacate that was denied on the merits, he had to obtain permission to file his present motion. Id. § 2255(h). Because Webb failed to obtain permission from the Fifth Circuit Court of Appeals to file a successive motion in the district court that sen- tenced him, the district court was required to dismiss his motion to vacate. USCA11 Case: 21-13960 Date Filed: 06/28/2022 Page: 4 of 4 4 Opinion of the Court 21-13960 We GRANT the motion for summary affirmance, AFFIRM the dismissal of Webb’s motion to vacate, and DISMISS AS MOOT the motion to stay the briefing schedule.
Murphy v. United States , 634 F.3d 1303 ( 2011 )
United States v. Gary William Holt , 417 F.3d 1172 ( 2005 )
United States v. Webb , 165 F.3d 24 ( 1998 )
United States v. Keith Bryan Webb , 796 F.2d 60 ( 1986 )
groendyke-transport-inc-v-elmer-davis-regional-director-16th-region , 406 F.2d 1158 ( 1969 )