[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 10, 2007
No. 06-11630 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00001-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EWIN OSCAR MARTINEZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 10, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Ewin Oscar Martinez, a federal prisoner proceeding pro se, appeals the
district court’s denial of his “Motion for Request Preserved Error Review as to
Sentencing,” which he filed pursuant to Rules 201(d) and (f) of the Federal Rules
of Evidence. The district court construed the filing as one seeking post-conviction
relief under 28 U.S.C. § 2255. We affirm.
The relevant facts are these. On June 2, 2000, Martinez and two co-
defendants were convicted of conspiracy to commit hostage-taking, in violation of
18 U.S.C. § 1203(a); hostage-taking, in violation of 18 U.S.C. § 1203(a);
conspiracy to commit carjacking, in violation of 18 U.S.C. § 1203(a); carjacking,
in violation of 18 U.S.C. §§ 2119(2) and 2; and using and carrying a firearm in
relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2. The
district court sentenced Martinez to a life term of imprisonment. We affirmed
Martinez’s and his co-defendants’ convictions and sentences. See United States v.
Ferreira, 275 F.3d 1020 (11th Cir. 2001).
In December 2002, Martinez filed a post-conviction motion to vacate,
pursuant to 28 U.S.C. § 2255, in which he sought retroactive application of
Apprendi v. New Jersey, 530 U.S. 466 (2000). From March 2003 to December
2005, Martinez filed numerous supplements and memoranda, all citing
Apprendi and its progeny, in support of his § 2255 motion. While his § 2255
motion remained pending, Martinez, proceeding under his direct criminal case,
filed the present “Motion for Request Preserved Error Review as to Sentencing”
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pursuant to Rules 201(d) and (f) of the Federal Rules of Evidence, in which he
sought the district court to take judicial review of Apprendi and its progeny.
On January 27, 2006, the district court denied Martinez’s § 2255 motion,
and found, inter alia, that “the Eleventh Circuit has unequivocally held that the
Supreme Court’s ruling in Blakely[1] does not apply retroactively to cases on
collateral review.” On the same day, by separate order, the district court denied
Martinez’s “Motion for Request Preserved Error Review as to Sentencing,”stating
that the denial was based on “reasons stated in the Court’s Order of Final Judgment
in Case No. 03-23561-CIV-Lenard (D.E. ___), in which Petitioner’s Motion to
Vacate Sentence was denied.”
On March 6, 2006, Martinez filed a notice of appeal (“NOA”) as to the
district court’s January 27, 2006 denial of his “Motion for Request Preserved Error
Review as to Sentencing.” We noted a possible lack of jurisdiction due to the
untimeliness of Martinez’s NOA, which although filed more than 10 days after the
order appealed, was filed within the 40-day extension period allowed in criminal
cases. For this reason, we remanded the matter to the district court for further
proceedings to determine whether Martinez had shown excusable neglect for the
late filing of his NOA. On remand, the district court construed Martinez’s NOA as
1
Blakely v. Washington, 542 U.S. 296 (2004).
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a motion for an extension of time for filing the NOA based on his assertion that he
did not receive its order denying his motion until February 28, 2006, nearly one
month after its issue, and, therefore, he demonstrated excusable neglect in his late
filing of the NOA.2
On appeal, Martinez argues that the district court erred by denying his
“Motion for Request Preserved Error Review as to Sentencing” in which he
requested the court to take judicial notice of Apprendi and its progeny, pursuant to
Fed. R. Evid. 201(d), and that the district court illegally enhanced his sentence
based on an erroneous interpretation of the law. We disagree.
Because Martinez’s “Motion for Request Preserved Error Review as to
Sentencing” constituted a collateral attack on his sentence as unconstitutional, the
proper avenue of relief was 28 U.S.C. § 2255. United States v. Holt, 417 F.3d
1172, 1175 (11th Cir. 2005) (affirming the district court’s denial of a motion for
audita querela). A prisoner in federal custody may file a motion to vacate, set
aside, or correct sentence pursuant to § 2255, “claiming the right to be released
upon the ground that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction to impose such
2
We discern no error in the district court’s excusable-neglect determination and,
accordingly, have jurisdiction over the appeal and will proceed to the merits of Martinez’s
arguments.
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sentence, or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C. § 2255. However, before filing
a second or successive motion or petition, a petitioner must obtain an order from
the court of appeals authorizing the district court to consider the second or
successive motion or petition. See 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255
(cross-referencing § 2244). Without such authorization, a district court lacks
jurisdiction to consider a second or successive petition. See Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam).
When Martinez filed the instant Motion, he already had filed an
unsuccessful § 2255 motion (asserting the same Apprendi claim). Accordingly, he
was required to seek the permission of this Court prior to proceeding with his
“Motion For Request Preserved Error Review As To Sentencing.” Because there
was no evidence in the record that he had obtained our authorization, the district
court had no jurisdiction to consider Martinez’s Motion, which, in fact, was a
second or successive § 2255 motion. Even though the district court denied
Martinez’s motion rather than dismissing it for lack of jurisdiction, we nevertheless
affirm the district court’s ruling.
AFFIRMED.
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