USCA11 Case: 21-11744 Date Filed: 05/31/2022 Page: 1 of 3
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11744
Non-Argument Calendar
____________________
ROBERT MARVIN HARRIS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:20-cv-60828-KMW
____________________
USCA11 Case: 21-11744 Date Filed: 05/31/2022 Page: 2 of 3
2 Opinion of the Court 21-11744
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRANCH, Circuit Judges.
PER CURIAM:
Robert Marvin Harris, a federal prisoner, appeals pro se the
dismissal of his successive motion to vacate his sentence. 28 U.S.C.
§§ 2244(b)(3)(A), 2255(h). The United States moves for a summary
affirmance and to stay the briefing schedule. Because “the position
of [the United States] . . . is clearly right as a matter of law so that
there can be no substantial question as to the outcome of the case,”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969), we grant the motion for summary affirmance and dismiss as
moot the motion to stay the briefing schedule.
“Section 2255 allows a federal prisoner to seek post-convic-
tion relief from a sentence imposed in violation of the Constitution
or laws of the United States or if it is otherwise subject to collateral
attack.” Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir.
2011). A federal prisoner must file a motion to vacate, 28 U.S.C.
§ 2255, to collaterally attack the legality of his sentence. McCarthan
v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th
Cir. 2017) (en banc). The prisoner must obtain permission from this
Court to file a second or successive motion to vacate. 28 U.S.C.
§ 2255(h). “Without authorization, the district court lacks jurisdic-
tion to consider a second or successive petition.” United States v.
Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
USCA11 Case: 21-11744 Date Filed: 05/31/2022 Page: 3 of 3
21-11744 Opinion of the Court 3
Summary affirmance is appropriate because there is no sub-
stantial question that the district court lacked jurisdiction to con-
sider Harris’s motion to vacate. See Groendyke, 406 F.2d at 1162.
Despite labeling his filing as a “motion to reopen,” Harris repeated
the argument made in several of his postconviction motions that
his sentence was erroneously enhanced based on a prior conviction
for a drug offense. See Harris v. United States, 815 F. App’x 497
(11th Cir. 2020); Harris v. United States, 793 F. App’x 990 (11th Cir.
2020); Harris v. United States, 808 F. App’x 849 (11th Cir. 2020);
Harris v. United States, 667 F. App’x 736 (11th Cir. 2016); United
States v. Harris, 390 F. App’x 985 (11th Cir. 2010). Harris had to
challenge the validity of his sentence in a motion to vacate. See
McCarthan, 851 F.3d at 1081. Because Harris previously filed a mo-
tion to vacate that the district court denied on the merits, he had to
obtain permission to file the present motion. 28 U.S.C. § 2255(h).
And because Harris failed to obtain our permission to file a succes-
sive motion, the district court was required to dismiss his motion
to vacate. See Holt, 417 F.3d at 1175.
We GRANT the motion for summary affirmance, AFFIRM
the dismissal of Harris’s motion to vacate, and DISMISS AS MOOT
the motion to stay the briefing schedule.