USCA11 Case: 22-11978 Document: 16-1 Date Filed: 12/21/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11978
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL D. BEITER, JR.,
Defendant- Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:09-cr-60202-JIC-1
____________________
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2 Opinion of the Court 22-11978
Before LAGOA, BRASHER, and TJOFLAT, Circuit Judges.
PER CURIAM:
Michael David Beiter, Jr., a federal prisoner proceeding pro
se, appeals the District Court’s order denying his self-styled post-
judgment motion to “correct the record” in his underlying criminal
case. He also petitions for us to hear his appeal en banc. The gov-
ernment, in turn, has moved for summary affirmance and to stay
the briefing schedule.
I.
A grand jury originally charged Beiter with multiple felonies
in 2009. In a second superseding indictment, it charged him with,
inter alia, willfuly attempting to evade income taxes, in violation of
26 U.S.C. §§ 2, 7201 (“Counts 2–4”).
At several points before his case proceeded to trial, a magis-
trate judge questioned Beiter as to whether he would request ap-
pointed counsel or hire a private attorney, but he refused to answer
questions directly and insisted he was not the defendant. As such,
the magistrate judge found that he had not made a knowing and
intelligent waiver and appointed counsel from the Federal Public
Defender’s Office for him until he could show that he was exercis-
ing a knowing, voluntary, and intelligent waiver of his rights.
Eventually, Beiter’s appointed counsel moved to withdraw,
arguing that Beiter did not wish to be represented by the office and
that he refused to participate in the preparation of his defense.
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22-11978 Opinion of the Court 3
After Beiter again refused to make a knowing and intelligent
waiver of his right to counsel, or answer the magistrate judge’s
questions, the magistrate judge denied the motion. After Beiter’s
appointed counsel moved to set aside the magistrate judge’s order,
the District Court for the Southern District of Florida held a hear-
ing and overruled the motion.
A jury found Beiter guilty of all 10 counts, and the District
Court sentenced him to a total sentence of 120 months’ imprison-
ment followed by 5 years of supervised release in 2011. Beiter ap-
pealed, but we affirmed. See United States v. Beiter, 488 F. App’x
900 (11th Cir. 2011) (unpublished).
In May 2022, Beiter moved, pro se, to “correct the record.”
He argued that he never authorized the Federal Public Defender’s
Office to represent him, and the office continued to represent him
even after he fired his appointed counsel. He also contended that
he never had waived his rights.
The District Court denied his motion, however, finding that
the record indicated that the Federal Public Defender’s Office had
represented him as it had not been terminated as counsel of record
and it had denied his appointed counsel’s motion to deny. Beiter
appealed and now argues that the right to choose to have counsel
belonged to him, and the record showed that he did not request
appointed counsel and he had repeatedly fired the Federal Public
Defender’s Office. He asserts that the magistrate judge and District
Court violated his rights by forcing counsel on him and by not of-
fering viable alternative options.
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4 Opinion of the Court 22-11978
Rather than responding, the government moved for sum-
mary affirmance or to stay the briefing schedule. It argues that the
magistrate judge and District Court did not force counsel on Beiter.
Additionally, the government asserts that the District Court
properly denied his motion because there was nothing to correct
in the record. Finally, the government contends that Beiter’s argu-
ment that the magistrate judge and District Court forced counsel
on him was properly a 28 U.S.C. § 2255 motion, that would be un-
timely.
In response, among other arguments he previously raised,
Beiter argued that his motion would be properly construed as a
Fed. R. Civ. P. 60(b) motion.
Summary disposition is appropriate, in part, where “the po-
sition 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
. . . .” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969). 1 A motion for summary affirmance or summary rever-
sal shall postpone the due date for the filing of any remaining brief
until we rule on such motion. 11th Cir. R. 31-1(c).
When a criminal defendant fails to raise an argument before
the district court, we review for plain error. See United States v.
Monroe, 353 F.3d 1346, 1349 (11th Cir. 2003). Under plain error
1 Decisions of the United States Court of Appeals for the Fifth Circuit issued
prior to September 30, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, Ala., 661 F.2d 1206 (11th Cir. 1981) (en banc).
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22-11978 Opinion of the Court 5
review, a defendant must show that there is (1) an error; (2) that is
plain; and (3) that affects their substantial rights. Id. If all three
conditions are met, an appellate court may then exercise its discre-
tion to notice a forfeited error only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
Pro se pleadings are liberally construed. Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). We “may af-
firm for any reason supported by the record, even if not relied upon
by the district court.” United States v. Al-Arian, 514 F.3d 1184,
1189 (11th Cir. 2008) (quotation marks omitted).
The rules of criminal procedure do not explicitly provide for
rehearing or reconsideration of a criminal judgment; however, the
Supreme Court has allowed such motions. See Browdre v. Direc-
tor, 434 U.S. 257 (1978), United States v. Robinson, 361 U.S.
220 (1960). However, Fed. R. Civ. P. 60 does not apply in criminal
cases. See United States v. Fair, 326 F.3d 1317, 1318 (11th Cir.
2003).
Section 2255 permits a prisoner to contest his sentence by
motion upon the ground that the sentence was imposed in viola-
tion of the Constitution of the United States. 28 U.S.C. § 2255(a).
It allows a district court to provide the specified relief if it finds that
there has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable to col-
lateral attack. Id. §2255(b). However, a district court cannot re-
characterize a pro se litigant’s motion as a first § 2255 motion with-
out first notifying the litigant it intends to recharacterize the
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6 Opinion of the Court 22-11978
pleading, warn the litigant that this recharacterization means that
any subsequent § 2255 motion with be subject to the restrictions
on second or successive motions, and provide the litigant to with-
draw the motion or to amend it so that it contains all the § 2255 ar-
guments that he believes he has. Castro v. United States, 540 U.S.
375, 383 (2003). Moreover, the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) provides a one-year statute of limitations
for bringing a § 2255 motion. 28 U.S.C. § 2255(f).
Here, regardless of the standard of review, the District Court
properly denied Beiter’s motion “to correct the record” because the
District Court denied defense counsel’s motion to withdraw,
meaning the Federal Public Defender’s Office represented him.
Although he argues that the office never represented him, and that
the magistrate judge and District Court forced him to be repre-
sented by counsel, the office remained the counsel of record for the
case when the magistrate judge appointed counsel and after the
District Court overruled the objection to the denial of the motion
to withdraw.
To the extent that Beiter seeks to have his motion to “cor-
rect the record” construed as one under Rule 60(b), he is still not
entitled to relief, because such motions—based on a civil rule of
procedure—are not applicable in criminal cases, only civil ones.
Fair, 326 F.3d at 1318.
Further, the District Court did not err, plainly or otherwise,
or abuse its discretion by not considering his motion to be one un-
der 28 U.S.C. § 2255. Specifically, had the Court chosen to do so,
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22-11978 Opinion of the Court 7
it would have had to notify him that it intended to characterize his
motion as such, warn him of the consequences of recharacterizing
the motion, and give him the opportunity to withdraw it or all his
§ 2255 claims, events which did not occur here. Castro, 540 U.S. at
383. Moreover, that decision was reasonable, given that his request
was to “correct the record,” and such a motion would have been
subject to a challenge as untimely. 28 U.S.C. § 2255(f).
Accordingly, because the government’s position is clearly
correct as a matter of law, we GRANT the government’s motion
for summary affirmance and DENY its motion to stay the briefing
schedule as moot per 11th Cir. R. 31-1(c). Groendyke Transp., Inc.,
406 F.2d at 1162.
United States v. Michael D. Beiter, Jr.
Combined Opinion