Andrew Levert v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 10, 2008
No. 07-14254 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
04-08007-CV-LSC-S & 01-00164-CR-N-S
ANDREW LEVERT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 10, 2008)
Before MARCUS, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Andrew Levert, a federal prisoner proceeding pro se, appeals the denial of
his motion for handwriting analysis. On appeal, Levert argues that the district
court abused its discretion in denying his motion, asserting that there was
insufficient evidence to support his conviction in light of the fact that his purported
signature on a waiver-of-rights form was, in fact, a forgery. Levert contends that,
because the signature was forged, his conviction must be vacated because it was
obtained in violation of his constitutional rights. For the reasons set forth more
fully below, we vacate and remand to the district court for further proceedings in
order to allow the court to correct its order and dismiss the motion for lack of
jurisdiction.
We will examine questions regarding a district court’s jurisdiction over an
action sua sponte, even when the district court does not address those jurisdictional
issues. Blue Cross & Blue Shield of Alabama v. Sanders, 137 F.3d 1347, 1351
(11th Cir. 1998); United States v. Alabama, 791 F.2d 1450, 1454 (11th Cir. 1985).
Where a district court lacked jurisdiction, we have jurisdiction only for the limited
purpose of correcting the district court’s error in entertaining the suit. Boyd v.
Homes of Legend, Inc., 188 F.3d 1294, 1298 (11th Cir. 1999).
Before a federal prisoner may file a second or successive motion under
§ 2255, the prisoner must obtain an order from the appropriate court of appeals,
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authorizing the district court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A),
2255(h); In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1996). Without
authorization, the district court lacks jurisdiction to consider a second or successive
petition. Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997). The gatekeeping
requirements of the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 110 Stat. 1214 (1996), cannot be avoided by relabeling a claim
as something other than a § 2255 motion. Felker v. Turpin, 101 F.3d 657, 661
(11th Cir. 1996).
In his “motion for handwriting analysis,” Levert essentially argues that his
conviction was obtained in violation of his constitutional rights, asserting that he
did not waive his Miranda1 rights while in police custody, and contending that his
purported signature on the waiver-of-rights form was a forgery. He further asserts
that the waiver-of-rights form constituted newly discovered evidence sufficient to
authorize the filing of a successive § 2255 motion. Thus, despite Levert’s assertion
that the motion is merely an evidentiary request to obtain review of the waiver-of-
rights form by a handwriting expert, it appears to constitute a second or successive
§ 2255 motion. Because Levert filed a previous § 2255 motion and it was denied,
he required our permission to file a successive motion for habeas relief in district
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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court. See 28 U.S.C. § 2255. Levert did not obtain that permission, and therefore,
the district court did not have jurisdiction to entertain the motion. Id.
Accordingly, the district court should have dismissed, rather than denied, Levert’s
motion for handwriting analysis.
In light of the foregoing, we VACATE the order denying Levert’s motion
for handwriting analysis and REMAND to the district court with instructions to
correct its order and dismiss the motion for lack of jurisdiction.
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