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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-13932
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-24177-CMA; 1:12-cr-20291-CMA-10
ALINA FEAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 30, 2017)
Before MARCUS, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Alina Feas, a federal prisoner represented by counsel, appeals the district
court’s denial of her 28 U.S.C. § 2255 motion to vacate. The district court denied
the motion because: (1) it was an unauthorized second or successive application;
(2) it was barred by the one-year statute of limitations of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”); and (3) Feas did not show a
reasonable probability that she would not have entered a guilty plea but for the
alleged Rule 11 error. On appeal, Feas argues that the instant motion is not second
or successive because the factual basis for her claim did not exist at the time she
filed her first § 2255 motion. Citing United States v. Pinto, 838 F.2d 1566, 1569
(11th Cir. 1988), she argues that the prejudice required to succeed on her Rule
11(b)(1)(A) claim did not occur until she was actually threatened with a perjury
prosecution, which threat did not occur until after the resolution of her first § 2255
motion. She also argues the merits of her Rule 11(b)(1)(A) claim. 1
We review de novo the dismissal of a § 2255 motion as second or
successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
Pursuant to § 2255, a prisoner in federal custody may move the court that
imposed his sentence to vacate, set aside, or correct the sentence if it was imposed
1
Because, as discussed below, the district court correctly dismissed Feas’s § 2255 motion
as second or successive, the court lacked jurisdiction to consider the merits of her Rule 11 claim.
Accordingly, we need not reach her arguments on that issue, or whether that issue is properly
raised on appeal in the absence of a COA. See Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998) (holding that the scope of appellate review in § 2255 proceedings is limited to
the specific issues indicated in the COA).
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in violation of federal constitutional or statutory law, was imposed without proper
jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject
to collateral attack. 28 U.S.C. § 2255(a). However, when a prisoner previously
has filed a § 2255 motion to vacate, she must apply for and receive permission
from this Court before filing a successive § 2255 motion. Id. § 2244(b)(3),
2255(h). Without authorization, the district court lacks jurisdiction to consider a
second or successive § 2255 motion. Farris v. United States, 333 F.3d 1211, 1216
(11th Cir. 2003).
We have recognized that “the phrase ‘second or successive’ is not
self-defining and does not refer to all habeas applications filed second or
successively in time.” Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011)
(citing Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007)). Specifically, there
are “a small subset of unavailable claims that must not be categorized as
successive.” Id. However, those small subset of claims involve previously
unavailable “facts,” such as the subsequent vacatur of a prior state conviction after
the initial federal habeas proceedings concluded. See id. at 863-65.
In Pinto, a defendant appealed his conviction based on the district court’s
denial of a motion to withdraw his guilty plea. Pinto, 838 F.2d at 1568. The
defendant claimed, in part, that he was not warned at the plea hearing that his
statements could be used against him in a prosecution for perjury. Id. at 1569. We
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stated that the defendant’s claim merited “little discussion,” because “a failure to
warn under Fed. R. Crim. P. 11(c)(5)[2] is not a sufficient basis for attacking a plea
absent a threat of prosecution for perjury or some other showing of prejudice,” and
the defendant had made no such showing. Id.
The district court correctly found that Feas’s motion was an unauthorized
second or successive § 2255 motion. Feas filed a previous § 2255 motion that the
district court denied on the merits on August 12, 2014. In the instant motion, she
makes a claim that was available to her at the time of the first motion. Feas’s Rule
11 claim ripened on the day she pled guilty, May 7, 2013. While Feas argues that,
because Pinto requires that a defendant making a Rule 1 1(b)(1)(A) claim show a
threat of prosecution for perjury or make some other showing of prejudice, and
because AUSA Medina did not threaten to prosecute her for perjury until
November 17, 2014, she did not have a ripe claim until that day,this argument fails
for two reasons. First, although Pinto states that a defendant making a Rule 11
failure-to-warn claim on direct appeal must show either a threat of prosecution for
perjury or make some other showing of prejudice, Pinto does not address the issue
of her case on appeal, namely, whether a newly made threat of prosecution for
perjury qualifies as a “new fact” that would disqualify a second-in-time § 2255
2
Rule 11(c)(5) has since been recodified as Rule 11(b)(1)(A).
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motion from being categorized as “second or successive” under the AEDPA. See
28 U.S.C. §§ 2244(b)(3), 2255(h).
Second, Feas’s argument relying on Pinto fails because this Court lists an
alternative option in the same sentence, stating that a defendant raising a Rule 11
claim may make “some other showing of prejudice.” Pinto, 838 F.2d at 1569.
Feas’s claim is, in part, based on “some other showing of prejudice,” in that she
claims that she would not have pled guilty had she been properly advised that
statements made during the change-of-plea hearing could be later used against her
in a perjury prosecution. Although Feas characterizes her Rule 11 claim as being
based on both the district court’s initial failure to warn and AUSA Medina’s later
threat of a perjury prosecution, a Rule 11 claim already was available to her at the
time she filed her first § 2255 motion based on her claim that she would not have
pled guilty had she been properly advised that statements made during the change-
of-plea hearing could be later used against her in a perjury prosecution. That Feas
was later threatened with a perjury prosecution did not change the fact that the
alleged defect at the heart of her Rule 11 (b)(1)(A) claim occurred on the day of
her plea hearing. As of that day--May 7, 2013--Feas had a cognizable Rule 11
claim based on her assertion that she would not have pled guilty had she been
properly warned by the district court.
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Therefore, the essential facts underlying her claim were available at the time
she filed her first § 2255 motion, and she failed to raise this claim in her first
motion. Further, Feas has not demonstrated that her claim falls into the small
subset of claims that should not be categorized as successive. Stewart, 646 F.3d at
863-63. Because the instant motion was, therefore, a second or successive § 2255
motion, the district court did not have subject matter jurisdiction to consider
the motion or its merits. See 28 U.S.C. § 2244(b)(3), 2255(h); Farris, 333 F.3d at
1216. Accordingly, we vacate and remand with instructions for the district court to
dismiss the petition for lack of jurisdiction.
VACATED AND REMANDED
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