USCA11 Case: 21-13219 Date Filed: 02/22/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13219
Non-Argument Calendar
____________________
SPURGEON GREEN, JR.,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent- Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:07-cr-00002-CAR-CHW-1
____________________
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2 Opinion of the Court 21-13219
Before WILSON, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Spurgeon Green, Jr., a federal prisoner proceeding pro se,
appeals the district court’s dismissal without prejudice of his “mo-
tion to vacate the applicability of 21 U.S.C. § 841(b)(1)(C),” which
it construed as an unauthorized second or successive motion to va-
cate under 28 U.S.C. § 2255. He asserts that the district court
should have, instead, construed his motion under Rule 35 of the
Federal Rules of Criminal Procedure. Under Rule 35, he argues,
the court had the authority to correct his total sentence at any time
because it was illegal, as his misconduct was not the but-for cause
of the death of the victim in the count at issue, and the 20-year
statutory minimum under § 841(b)(1)(C) was thus improper.
The government responds by moving this Court to summar-
ily affirm the district court’s order dismissing Green’s motion with-
out prejudice. It argues that, because he sought to collaterally chal-
lenge his sentence, the district court properly construed his motion
as one under § 2255, and it properly dismissed it on that basis be-
cause his previous § 2255 motion was denied with prejudice in
2016.
Summary disposition is appropriate when, among other
things, “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 out-
come of the case, or where, as is more frequently the case, the
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21-13219 Opinion of the Court 3
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
We review questions of jurisdiction de novo. Williams v.
Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). We also review de
novo whether a motion to vacate under § 2255 is second or succes-
sive. Armstrong v. United States, 986 F.3d 1345, 1348 (11th Cir.
2021). Pro se pleadings are held to a less stringent standard than
pleadings drafted by attorneys and will be liberally construed.
Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014).
However, a court may not “serve as de facto counsel for a party [or]
rewrite an otherwise deficient pleading in order to sustain an ac-
tion.” Id. at 1168–69.
A prisoner in federal custody may file a motion to vacate, set
aside, or correct his sentence on the grounds “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
sentence, or that the sentence was in excess of the maximum au-
thorized by law, or is otherwise subject to collateral attack.”
28 U.S.C. § 2255(a). Pursuant to the Anti-terrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), only one § 2255 motion may
be adjudicated unless we authorize the district court to consider a
second or successive motion. Boyd v. United States, 754 F.3d 1298,
1301 (11th Cir. 2014). Without authorization, the district court
lacks jurisdiction to consider a second or successive § 2255 motion.
Armstrong, 986 F.3d at 1347.
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4 Opinion of the Court 21-13219
A § 2255 motion is “the exclusive mechanism for a federal
prisoner to seek collateral relief unless he can satisfy the saving
clause,” which encompasses claims for which a § 2255 motion is an
“adequate and effective means for testing such an argument.”
McCarthan v. Dir. of Goodwill Industries-Suncoast, Inc., 851 F.3d
1076, 1081 (11th Cir. 2017) (en banc) (quotation marks omitted);
see also 28 U.S.C. §§ 2241, 2255(e). However, “[a] motion to vacate
is inadequate or ineffective to test the legality of a prisoner’s deten-
tion only when it cannot remedy a particular kind of claim,” i.e.,
when that claim is not cognizable under § 2255 at all. McCarthan,
851 F.3d at 1099. We have explained that two categories of cases fit
within the saving clause to permit federal prisoners to seek relief
under § 2241. Amodeo v. Coleman, 984 F.3d 992, 999 (11th Cir.
2021), cert. denied, (U.S. Jan. 10, 2022) (No. 21-6554). The first cat-
egory consists of prisoners who challenge the execution of their
sentences, as opposed to their legality, such as the deprivation of
good-time credits or parole determinations. Id. The second cate-
gory consists of cases where the sentencing court is unavailable or
dissolved, or where practical considerations, like multiple sentenc-
ing courts, prevent a prisoner from filing a § 2255 motion. Id. at
999–1000.
We have held that a district court did not err in construing a
motion as a successive § 2255 motion where the movant was mov-
ing to vacate his sentences and had previously filed a § 2255 mo-
tion. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).
There, we also held that the district court did not err in denying the
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21-13219 Opinion of the Court 5
movant’s motion under Rule 60(b) of the Federal Rules of Civil
Procedure as an unauthorized successive § 2255 motion because it
lacked jurisdiction. Id.
Rule 35 allows a district court to correct a defendant’s sen-
tence (i) within 14 days of sentencing, if the sentence resulted from
clear error, (ii) upon government motion within one year of sen-
tencing, if the defendant provided substantial assistance in investi-
gating or prosecuting another person, or (iii) upon government
motion more than one year after sentencing, if the defendant pro-
vided substantial assistance and certain other conditions are met.
See Fed. R. Crim P. 35. Under a prior version of Rule 35 no longer
in effect, district courts had the authority to “correct an illegal sen-
tence at any time.” Hill v. United States, 368 U.S. 424, 430 n.7
(1962); see also Fed. R. Crim. P. 35 advisory committee’s note to
1984 amendment.
Here, summary affirmance is appropriate. Although a prior
version of Rule 35 allowed district courts to correct an illegal sen-
tence at any time, see Hill, 368 U.S. at 430 n.7, under the current
version of the Rule, the district court could only have done so ei-
ther within 14 days or on motion of the government, and Green
failed to show that either condition was satisfied. See Fed. R. Crim.
P 35. Further, although he disclaimed any intent to proceed under
§ 2255, the district court correctly construed his motion as one un-
der § 2255 because he was collaterally challenging the legality of an
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6 Opinion of the Court 21-13219
aspect of his sentence. 1 See McCarthan, 851 F.3d at 1081. On that
basis, the court properly denied his “motion to vacate” as an unau-
thorized second or successive § 2255 motion, given the dismissal
with prejudice of his prior § 2255 motion in 2016.
Accordingly, the government’s position is clearly correct as
a matter of law, and no substantial question remains as to the out-
come of the case. See Groendyke Transp., Inc., 406 F.2d at 1162.
Therefore, we GRANT the government’s motion for summary af-
firmance.
1To the extent the district court could have construed Green’s motion as one
under 28 U.S.C. § 2241, any such argument, even if preserved here, lacks merit
because he challenged the legality of his sentence, not its execution. See Amo-
deo, 984 F.3d at 999.