USCA11 Case: 20-14253 Date Filed: 06/02/2021 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-14253
Non-Argument Calendar
________________________
D.C. Docket No. 1:88-cr-01026-GRJ-6
JOSE ELIAS SEPULVEDA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 2, 2021)
Before JILL PRYOR, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-14253 Date Filed: 06/02/2021 Page: 2 of 4
Jose Elias Sepulveda, a federal prisoner, appeals the district court’s
dismissal of his pro se Federal Rule of Civil Procedure 60(b)(4) motion 1 for lack of
jurisdiction because it was an unauthorized second or successive 28 U.S.C. § 2255
motion. His Rule 60(b)(4) motion sought relief from his 1999 judgment of
conviction on the ground that the judgment was void because it was inconsistent
with due process as he lacked counsel at trial. The government moves for
summary affirmance of the district court’s order and for a stay of the briefing
schedule, arguing that the district court lacked jurisdiction to consider Sepulveda’s
motion because it was an unauthorized successive § 2255 motion.
Summary disposition is appropriate when “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question as to
the outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
We grant the government’s motion for summary affirmance because it is
clearly right as a matter of law. Sepulveda was convicted by a jury of two
conspiracy drug-related felony counts and sentenced to two concurrent life terms
of imprisonment in 1999. We denied his claim on direct appeal that his conviction
should be overturned because he was denied appointed counsel at trial in violation
1
Rule 60(b)(4) provides that “the court may relieve a party or its legal representative
from a final judgment, order, or proceeding . . . [if] the judgment is void.” Fed. R. Civ. P.
60(b)(4).
2
USCA11 Case: 20-14253 Date Filed: 06/02/2021 Page: 3 of 4
of the Sixth Amendment, and we affirmed his convictions and sentences. United
States v. Sepulveda, 55 F. App’x 900 (11th Cir. 2002) (unpublished) (table). In
2004, Sepulveda filed an unsuccessful pro se § 2255 motion to vacate, arguing in
part that the district court violated his right to counsel by failing to appoint him
counsel during his criminal proceeding.2
Subsequently, in 2019, Sepulveda filed the underlying pro se Rule 60(b)(4)
motion, arguing that his judgment of conviction was void because of his lack of
counsel during his criminal proceeding. Rule 60(b) motions are considered
successive habeas applications if the movant “attacks the federal court’s
previous resolution of a claim on the merits.” 3 Banister v. Davis, 140 S. Ct. 1698,
1709 (2020) (quoting Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). Before a
movant may file a second or successive motion to vacate, he first must obtain an
order from the court of appeals authorizing the district court to consider the
motion. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Absent authorization from this
Court, the district court lacks jurisdiction to consider a second or successive
2
Both the district court and this Court denied Sepulveda’s request for a certificate of
appealability.
3
It is well established that Rule 60(b) does not provide for any relief from a criminal
judgment. United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
3
USCA11 Case: 20-14253 Date Filed: 06/02/2021 Page: 4 of 4
motion to vacate sentence. See Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003).
Sepulveda’s Rule 60(b)(4) motion attacked his judgment of conviction on
the ground that it was void because he did not have appointed counsel at trial. He
raised virtually identical arguments on direct appeal and in his original § 2255
motion, which was denied on the merits. Thus, his Rule 60(b) motion constituted a
successive § 2255 motion. Banister, 140 S. Ct. at 1709; Gonzalez, 545 U.S. at
531–32. Sepulveda did not have authorization from this Court to file a second or
successive § 2255 motion. Consequently, the district court properly dismissed his
Rule 60(b)(4) motion for lack of jurisdiction. Id.; see Farris, 333 F.3d at 1216.
Accordingly, we GRANT the government’s motion for summary affirmance
and we DENY AS MOOT the accompanying motion to stay the briefing schedule.
4