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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14978
Non-Argument Calendar
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D.C. Docket Nos. 1:15-cv-22992-KMM,
2:09-cr-14016-KMM-6
DEWAYNE BERNARD MITCHELL, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 9, 2016)
Before HULL, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Dewayne Bernard Mitchell, Jr., a federal prisoner proceeding pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2255 motion for lack of
jurisdiction. After review, we affirm. 1
In 2010, Mitchell filed his first § 2255 motion, arguing, inter alia, that his
counsel was ineffective for failing to challenge his career offender classification
under the Sentencing Guidelines. In denying Mitchell’s § 2255 motion, the district
court acknowledged Mitchell’s valid collateral appeal waiver in his plea
agreement, but did not rely on that appeal waiver. Instead, the district court ruled
on the merits of Mitchell’s claims.
In 2015, Mitchell filed the instant § 2255 motion, again arguing ineffective
assistance of counsel for failing to challenge his career offender classification. The
district court dismissed this § 2255 motion as an unauthorized successive § 2255
motion.
On appeal, Mitchell asserts that the district court dismissed his first § 2255
motion in 2010 due to his appeal waiver in his plea agreement and that afterward
his appeal waiver was “removed upon instructions of the [United States] Attorney
General.” Mitchell argues that his current § 2255 motion was not second or
successive because, pursuant to § 2255(f)(2), his claim did not become ripe until
after the removal of the appeal waiver as an impediment.
1
We review de novo the district court’s dismissal of a § 2255 motion as second or
successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
2
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Pursuant to § 2255, a federal prisoner claiming the right to be released on the
grounds that his sentence was imposed in violation of federal law or the
Constitution, the court lacked jurisdiction to impose sentence, his sentence is
beyond the maximum authorized by law, or his sentence 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(a). If the district court
determines that relief is warranted, it must vacate and set aside the judgment and
discharge or resentence the prisoner, or grant a new trial or correct the sentence, if
appropriate. Id. § 2255(b).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
provides for a one-year statute of limitations for filing a § 2255 motion, which
begins to run following the latest of four possible events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a [§ 2255] motion
created by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
3
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Id. § 2255(f).
Before a prisoner may file a second or successive § 2255 motion, the
prisoner must first obtain an order from this Court authorizing the district court to
consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Without this Court’s
authorization, the district court lacks jurisdiction to consider a second or successive
§ 2255 motion. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
A numerically second § 2255 motion may or may not be “second or
successive” under the AEDPA. See Stewart v. United States, 646 F.3d 856, 859-
60 (11th Cir. 2011); see also Slack v. McDaniel, 529 U.S. 473, 486, 120 S. Ct.
1595, 1605 (2000) (explaining that the phrase “second or successive,” as used in
the AEDPA, is a term of art). In Stewart, after a prisoner filed his first § 2255
motion, he successfully challenged in state court the state convictions that were
predicate convictions for his career offender sentence. See Stewart, 646 F.3d at
857-58. One month after his state convictions were vacated, the prisoner filed a
second-in-time § 2255 motion, and requested vacatur of the career offender
enhancement. Id. at 858. The district court dismissed the second-in-time § 2255
motion as successive. Id. In reversing, we explained that the basis for the second-
in-time § 2255 motion—vacatur of the predicate state convictions—did not exist at
the time of the prisoner’s first § 2255 motion, and thus the numerically second
motion was not “second or successive” within the meaning of AEDPA. Id. at 863-
4
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65. In Boyd v. United States, we applied Stewart and determined that a prisoner’s
previously dismissed § 2255 motions did not render a later § 2255 motion
“successive” because the prisoner’s claim did not exist before his initial § 2255
proceeding concluded and the rulings on subsequent motions were not on the
merits. 754 F.3d 1298, 1301-02 (11th Cir. 2014) (stating that “second or
successive status only attaches to a judgment on the merits”).
Here, whether Mitchell’s current § 2255 motion would have been timely
filed under § 2255(f)(2) if it were his first § 2255 motion has no bearing on
whether the present motion is successive within the meaning of the AEDPA. See
28 U.S.C. § 2255(f). The district court did not err in dismissing Mitchell’s motion
to vacate as an unauthorized successive § 2255 motion because, unlike in Stewart
and Boyd, not only did Mitchell’s ineffective assistance claim exist when he filed
his first § 2255 motion in 2010, but he asserted essentially the same ineffective
assistance argument in his first § 2255 motion that he asserts in his current § 2255
motion. In his initial § 2255 proceeding, the district court clearly addressed the
merits of Mitchell’s ineffective assistance claim. Contrary to Mitchell’s claim, the
district court did not rely on the collateral appeal waiver in Mitchell’s plea
agreement to deny his first § 2255 motion. Therefore, the district court correctly
determined that Mitchell’s first § 2255 motion was adjudicated on the merits, and
as such, the current § 2255 motion is a “second or successive” motion within the
5
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meaning of the ADEPA. See Boyd, 754 F.3d at 1302. Accordingly, because
Mitchell did not obtain our authorization before filing his successive § 2255
motion, the district court properly concluded that it lacked jurisdiction over the
motion and dismissed it. See Holt, 417 F.3d at 1175. 2
AFFIRMED.
2
On appeal, Mitchell does not argue that the district court should have construed his
§ 2255 motion as a § 2241 petition brought pursuant to § 2255’s savings clause. In any event,
the Southern District of Florida would have lacked jurisdiction to consider a § 2241 petition from
Mitchell, as he is incarcerated in the Middle District of Florida. See 28 U.S.C. § 2241(a);
Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 1991).
6