United States v. Terrance Bernard Hutchins

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12570
Non-Argument Calendar
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D.C. Docket No. 9:95-cr-08089-DTKH-12
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRANCE BERNARD HUTCHINS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 21, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Terrance Bernard Hutchins, a federal prisoner proceeding pro se, appeals the
district judge’s denial of his motion to oppose an earlier order denying his motion
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to dismiss the indictment. Because we conclude the district judge lacked
jurisdiction, we vacate and remand with instructions to dismiss.
I. BACKGROUND
In 1996, Hutchins was convicted of conspiracy to possess with intent to
distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and
846; he was sentenced to life imprisonment. In 2000, Hutchins moved to vacate or
set aside his sentence under 28 U.S.C. § 2255. He alleged (1) the government had
illegally suppressed evidence, and (2) his enhanced sentence under 21 U.S.C. §
841 was illegal. The district judge denied the motion to vacate, because he found
Hutchins’s evidentiary claim was procedurally barred and his sentencing claim
failed on the merits. Hutchins appealed, and we denied a certificate of
appealability. United States v. Hutchins, No. 01-15385 (11th Cir. Feb. 25, 2002).
Hutchins subsequently moved to dismiss the indictment in his criminal case
for grand jury abuse and prosecutorial misconduct. Based on his receipt of certain
FBI documents, he argued the government had committed abuse before the grand
jury by suppressing witness Tony Jones’s statement he had no knowledge of
Hutchins’s involvement in drug dealing. The district judge denied Hutchins’s
motion, because Hutchins previously had raised his prosecutorial misconduct claim
in his § 2255 motion, which the judge had denied as procedurally barred.
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Several years later, Hutchins filed this “motion to oppose the district court’s
order denying [his] motion to dismiss indictment.” R at 20066. Hutchins argued
government witness Jones should have been impeached before the grand jury with
the prior inconsistent statement he had made to the FBI. Hutchins also contended
Jones’s inconsistent statement should have been included in the criminal complaint
that was the basis for his initial arrest, and the government had no other legitimate
and independent source to establish probable cause for his arrest. On April 1,
2013, the district judge summarily denied Hutchins’s motion and treated it as a
motion for reconsideration of his October 4, 2002, order denying his motion to
dismiss the indictment. On appeal, Hutchins argues the district judge prematurely
denied his motion to oppose and improperly construed it as a motion for
reconsideration.
II. DISCUSSION
We review de novo whether a district judge properly exercised jurisdiction
over a claim. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008) (per
curiam). Pursuant to 28 U.S.C. § 2255, a federal prisoner seeking relief from his
conviction or confinement may file a motion to vacate in district court. Sawyer v.
Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). But a prisoner may not file a
second or successive motion under § 2255 without our prior certification. 28
U.S.C. § 2255(h). Absent our permission, a district judge lacks jurisdiction to
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address the motion and must dismiss. United States v. Holt, 417 F.3d 1172, 1175
(11th Cir. 2005) (per curiam). We look beyond the label of a prisoner’s post-
conviction motion to determine if he is seeking relief under § 2255. See, e.g.,
Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc)
(construing a federal prisoner’s Rule 60(b) motion as a successive § 2255 petition);
Franqui v. Florida, 638 F.3d 1368, 1374 (11th Cir. 2011) (construing a state
prisoner’s Rule 60(b) motion as a successive habeas petition); Holt, 417 F.3d
at 1175 (construing a motion for audita querela as a successive motion to vacate).
If a motion seeks to add a new ground for relief from the underlying judgment of
conviction, then the court must consider it a second or successive § 2255 motion.
See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Gilbert, 640 F.3d at 1323.
A motion challenging the legality of a conviction should be brought in a §
2255 motion to vacate. United States v. Jordan, 915 F.2d 622, 629 (11th Cir.
1990). Because Hutchins’s motion to oppose challenged the validity of his
conviction and life sentence, it was not a motion to reconsider the denial of his
motion to dismiss the indictment. Hutchins attacked the validity of his conviction
by arguing, if he had been able to use Jones’s inconsistent statements to impeach
Jones before the grand jury and at trial, then he would not have been convicted
because the government had no other legitimate and independent source to
establish probable cause for his arrest. By asserting a claim for relief, instead of
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pointing out a defect in the integrity of the earlier § 2255 motion proceeding,
Hutchins’s claim is the equivalent of a second or successive motion. Gilbert, 640
F.3d at 1323; Franqui, 638 F.3d at 1374. Therefore, the district judge should have
considered Hutchins’s motion to oppose as a second or successive motion to
vacate.
Because Hutchins previously had filed an unsuccessful § 2255 motion to
vacate his conviction and sentence, he was first required to seek our permission to
file a second or successive motion to vacate, which he did not obtain. 28 U.S.C.
§ 2255(h). Therefore, the district judge erred in denying the motion and should
have dismissed it for lack of subject matter jurisdiction.1 Holt, 417 F.3d at 1175.
We vacate the district judge’s denial of Hutchins’s motion to oppose a former
order denying his motion to dismiss the indictment and remand with instructions to
dismiss.
VACATED AND REMANDED.
1
Hutchins has not argued the district judge should have considered his motion under § 2241;
therefore, we need not consider that issue. See United States v. Willis, 649 F.3d 1248, 1254
(11th Cir. 2011).
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