USA v. Shirley Denise Burk

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14753
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SHIRLEY DENISE BURK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:12-cr-00001-WLS-TQL-3
____________________
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2 Opinion of the Court 20-14753
Before L UCK , LAGOA , and J ULIE CARNES, Circuit Judges.
PER CURIAM:
Defendant Shirley Burk, proceeding
pro se, appeals the dis-
trict court’s denial of what she has styled a “Motion for Stay Pend-
ing a Hearing.” In support of her motion, Burk argued below that
her 2016 federal fraud conviction should be vacated and the order
of restitution imposed as part of her sentence in that case dismissed
because of various errors that allegedly occurred during her crimi-
nal trial. The district court denied Burk’s motion, concluding that
it was a frivolous and improper attempt to collaterally attack Burk’s
conviction and sentence.
Burk filed a notice of appeal, but she failed to challenge or
otherwise address in her appellate briefing the grounds upon which
the district court denied her motion. Accordingly, Burk has aban-
doned any argument that the district court erred when it denied
her motion. In addition, we discern no error on the merits of the
district court’s ruling on Burk’s motion. Thus, we AFFIRM.
BACKGROUND
Defendant Shirley Burk and two co-defendants were
charged in 2012 with one count of conspiracy to commit multiple
objects, including arson, mail fraud, and making false declarations
in violation of 18 U.S.C. § 371.
See United States v. Burk, 737
F. App’x 963, 965 (11th Cir. 2018). The conspiracy charges were
based on evidence of a scheme perpetrated by Burk and her co-
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20-14753 Opinion of the Court 3
defendants that involved acquiring various properties, transferring
the properties among each other, setting fire to the properties, and
then making fraudulent insurance claims to collect money for the
fire losses.
See id. After a jury trial, Burk and her co-defendants
were convicted of the conspiracy charge.
See id.
Burk was sentenced to 60 months in prison, followed by
three years of supervised release. The sentencing court determined
that restitution was a mandatory part of Burk’s sentence under 18
U.S.C. § 3663A(c)(1)(A), and it held a hearing to determine the
proper amount of restitution. Following the hearing, the amount
of restitution was set at $229,789.00. The restitution order specified
that Burk was jointly and severally liable with her co-defendants
for the full amount of restitution.
Burk directly appealed her conviction, arguing that there
was insufficient evidence to sustain her conviction for conspiracy
to commit arson.
See id. This Court rejected Burk’s argument,
finding substantial evidence in the record establishing Burk’s
“knowledge of and voluntary participation in the conspiracy to
commit arson” charged by the Government.
Id. at 966. Burk did
not assert any other ground in support of her appeal, and she did
not challenge any part of her sentence, including the restitution or-
der.
See id. Having rejected Burk’s sufficiency of the evidence ar-
gument, this Court thus affirmed Burk’s conviction and sentence
in an order issued on June 14, 2018.
See id.
On January 14, 2019, while in custody, Burk filed a motion
that a Magistrate Judge stated “appear[ed] to be” a motion to vacate
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4 Opinion of the Court 20-14753
her sentence pursuant to § 2255, but the judge noted that Burk had
not used the standard form required for § 2255 motions.1 The Mag-
istrate Judge advised Burk of the deficiency and, to give her an op-
portunity to adequately present her claim, the judge ordered Burk
to “file a complete [§ 2255] Petition on this Court’s standard form
if she in fact seeks to file” such a motion. The judge directed the
clerk to send Burk a copy of his order, along with the correct § 2255
form, and advised Burk that she should submit the form within 21
days of the order. Burk did not refile her § 2255 motion or other-
wise respond to the Magistrate Judge’s January 2019 order, and she
was released from custody in October 2019.
On September 22, 2020, well over a year after the Magistrate
Judge directed her to refile her § 2255 motion and over two years
after this Court affirmed her conviction on direct appeal, Burk filed
a
pro se motion in the district court that she styled a “Motion for
Stay Pending a Hearing.” Burk did not cite any legal authority in
her motion that would entitle her to a stay or a hearing. Instead,
Burk urged the court in her motion to vacate her conviction and
restitution order based on various errors that allegedly occurred
during her criminal trial and sentencing. For example, Burke ar-
gued that: (1) the district court failed to properly calculate the
1 Burk styled this pleading as a motion to dismiss the case and vacate her sen-
tence for lack of jurisdiction pursuant to 28 U.S.C. § 2072(b) and Federal Rule
of Criminal Procedure 60(d). Apparently Burk originally filed this pleading on
December 28, 2018, and she refiled it on January 14, 2019, after the initial
pleading was returned by the clerk for being deficient as unsigned.
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20-14753 Opinion of the Court 5
victim’s loss, (2) her indictment was defective, (3) the Government
used forged evidence during her criminal trial, and (4) there was a
statute of limitations problem with her conviction.
The district court denied Burk’s motion for a “stay pending
a hearing” on November 16, 2020, noting that it was “unsupported
aside from her own conclusory statements” and that it was an im-
proper and frivolous attempt to collaterally challenge “potential
missteps” during her criminal trial. The court observed that “there
were proper channels that Burk could have utilized to challenge
her judgment and sentence in addition to her formal appeal, which
she failed to use.” Specifically, the court determined that Burk had
failed to “timely and collaterally attack her judgment and sentence
by way of a § 2255 motion . . . despite being specifically afforded
the opportunity to do so.”
On the same day as the district court issued its order denying
her motion, Burk filed a second motion for a stay pending a hearing
that restated the arguments made in her first motion. The district
court denied Burk’s second motion as moot, noting that it was
nearly identical to the first motion Burk had filed and holding that
the court’s ruling on the first motion disposed of the second.
Burk filed a notice of appeal on December 15, 2020, arguing
that the district court had erred by denying her motion for a stay
pending a hearing. In her appellate briefing, Burk identifies four
issues for appeal: (1) whether the Government violated her due
process rights during her criminal trial, (2) whether she was
properly indicted for the charge on which she was convicted,
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6 Opinion of the Court 20-14753
(3) the alleged improper calculation of her restitution amount, and
(4) alleged ineffective assistance of counsel during her criminal
trial. In the argument section of her brief, Burk asserts more spe-
cifically that her conviction was unconstitutional because the Gov-
ernment violated her constitutional rights in various ways during
her criminal trial, including failing to obtain an indictment by
twelve or more grand jurors. Burk argues further that the amount
of her restitution order is invalid because she was unfairly ordered
to pay the same amount as her more culpable co-defendants and
because the court failed to properly calculate the victim’s loss in
the case. According to Burk, her defense counsel likewise provided
ineffective assistance of counsel by failing to properly calculate her
restitution amount. Finally, Burk again suggests that there was a
statute of limitations issue with her conviction and sentence.
As described above, Burk’s appellate briefing is nearly iden-
tical to the briefing she submitted in support of her first and second
motions in the district court, restating on appeal the substantive
arguments she made below in support of her motion for a stay and
hearing. But Burk does not in her appellate briefing challenge or
otherwise address the district court’s rationale for denying her mo-
tion: that the motion is conclusory and unsupported by any factual
basis or legal authority, and that it is an improper and untimely col-
lateral attack on Burk’s judgment and sentence.
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20-14753 Opinion of the Court 7
DISCUSSION
I. Standard of Review
Ordinarily, we would review a district court’s ruling on a
motion for a stay under an abuse of discretion standard.
See United
States v. Dean, 487 F.3d 840, 848 (11th Cir. 2007). Here though,
and as will be explained below, Burk’s motion appears in substance
to be a motion to vacate her conviction and sentence pursuant to
28 U.S.C. § 2255 rather than a motion to stay.
See 28 U.S.C.
§ 2255(a) (providing that a federal prisoner “claiming the right to
be released upon the ground that the sentence was imposed in vi-
olation 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 authorized by law, or is
otherwise subject to collateral attack . . . may move the court which
imposed the sentence to vacate, set aside or correct the sentence”).
“In a [§] 2255 proceeding, we review legal issues
de novo and fac-
tual findings under a clear error standard.”
Lynn v. United States,
365 F.3d 1225, 1232 (11th Cir. 2004) (quotation marks omitted).
As noted, Burk is proceeding
pro se in this appeal. This
Court construes a
pro se litigant’s pleadings liberally, and we hold
such pleadings to a less stringent standard than pleadings drafted
by an attorney.
See United States v. Cordero, 7 F.4th 1058, 1068
n.11 (11th Cir. 2021) (noting that “
pro se pleadings are liberally con-
strued”). However, the Court “may not serve as
de facto counsel”
for a
pro se litigant or “rewrite” a deficient pleading.
See id. (quo-
tation marks omitted).
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8 Opinion of the Court 20-14753
II. Procedural Issues
The Government notes that Burk’s notice of appeal argua-
bly is untimely, but it expressly waives any timeliness objection it
otherwise would have and asks the Court to resolve the appeal on
grounds other than timeliness. The Government also points out
that Burk only designated in her notice of appeal the district court’s
second order denying her motion as moot, rather than the first or-
der ruling on the merits of the motion. According to the Govern-
ment, this Court should thus only consider on appeal the district
court’s ruling on Burk’s second motion—holding the motion moot
because it was disposed of in the court’s ruling on her first mo-
tion—rather than the district court’s ruling on Burk’s first motion.
Given that Burk’s motion was effectively a § 2255 motion,
and that the district court denied the motion on November 16,
2020, Burk’s notice of appeal was timely filed on December 15,
2020.
See Fed. R. App. P. 4(a)(1)(B) (stating that the notice of ap-
peal in a civil proceeding may be filed by any party within 60 days
after entry of the judgment or order appealed from when one of
the parties to the case is the United States). Moreover, and given
Burk’s
pro se status, we liberally construe her notice of appeal to
include the district court’s first and second orders denying the mo-
tion.
See KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256,
1260 (11th Cir. 2006) (liberally construing the requirement in Fed.
R. App. P. 3(c)(1)(B) that a notice of appeal designate the judgment
or order being appealed where the party’s intent to appeal the dis-
trict court’s ruling was “overwhelmingly clear”). Although Burk
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20-14753 Opinion of the Court 9
only referenced the district court’s second order in her notice of
appeal, it is clear from her briefing that she intended to appeal the
court’s first order denying her initial motion on the merits, in addi-
tion to the court’s second order denying her motion as moot.
See
id. (noting that a litigant’s notice of appeal “could have been more
artfully drawn” but that “a liberal construction of that notice” re-
quired the Court to conclude that the litigant had “effectively ap-
pealed” the ruling at issue). Thus, we conclude that Burk has
timely and effectively appealed the district court’s first and second
orders denying her motion.
III. Abandonment
Nevertheless, and despite clearing the above procedural hur-
dles, Burk has abandoned on appeal any substantive challenge to
the district court’s ruling on her motion because she failed to ad-
dress in her appellate briefing the grounds asserted by the district
court in support of its ruling.
See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“While we read briefs filed by
pro se liti-
gants liberally, issues not briefed on appeal by a
pro se litigant are
deemed abandoned.” (citations omitted)). In her opening brief,
Burk identifies as issues for appeal the same issues she argued in the
district court, including an allegedly defective indictment, im-
proper calculation of the victim’s loss resulting in an unfair restitu-
tion order, allegedly forged evidence used to convict her at trial,
ineffective assistance of counsel, and an unspecified statute of limi-
tations issue with her conviction. Burk does not in her appellate
brief provide any additional factual or legal support for her motion,
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10 Opinion of the Court 20-14753
which the district court specifically determined was lacking. Nor
does she make any effort to address the district court’s ruling that
her motion is an unauthorized collateral attack on her conviction
and sentence.
“When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment,
[s]he is deemed to have abandoned any challenge of that ground,
and it follows that the judgment is due to be affirmed.”
Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“To
obtain reversal of a district court judgment that is based on multi-
ple, independent grounds, an appellant must convince [the Court]
that every stated ground for the judgment against h[er] is incor-
rect.”). That is what happened here. By failing to challenge either
of the grounds upon which the district court based its order, Burk
abandoned the issues on which she must prevail to succeed in her
appeal of the order.
See id. Accordingly, we affirm the district
court’s order denying Burk’s motion on the ground of abandon-
ment.
IV. Merits
We note also that the district court did not err on the merits
by denying Burk’s motion. Although styled as a motion for a stay
pending a hearing, the relief Burk seeks via her motion is for the
district court to vacate her conviction and nullify the restitution or-
der imposed as part of Burk’s sentence. On appeal and in her brief-
ing below, Burk asserted numerous arguments that purportedly
support her entitlement to such relief. But as the district court
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20-14753 Opinion of the Court 11
pointed out, Burk did not raise any of these arguments during her
direct appeal.
See Burk, 737 F. App’x at 965
.
As to Burk’s argument about restitution specifically, binding
circuit authority provides that Burk waived any challenge to that
issue by not raising it on direct appeal.
See Cani v. United States,
331 F.3d 1210, 1215 (11th Cir. 2003) (“[A]bsent exceptional circum-
stances . . . a criminal defendant who fails to object to the calcula-
tion of restitution at both of these stages of the judicial process”—
during the criminal proceedings and on direct appeal—“loses the
right to advance a challenge to this calculation.”). There is an ex-
ception to the waiver rule for exceptional circumstances, which
this Court has defined as a showing “analogous to a showing of
cause and prejudice to overcome a procedural default for raising a
claim for the first time in a habeas corpus petition.”
Dohrmann v.
United States, 442 F.3d 1279, 1281 (11th Cir. 2006). But Burk makes
no attempt to show exceptional circumstances as required to avoid
waiver here. She has thus waived any challenge to the district
court’s calculation of the amount of the restitution order.
Regarding the other arguments asserted in support of Burk’s
motion, the only possible avenue for the relief Burk requests at this
point would be a § 2255 motion.
See Antonelli v. Warden, U.S.P.
Atlanta, 542 F.3d 1348, 1351 (11th Cir. 2008) (“It is . . . clear that a
§ 2255 motion is the exclusive remedy for a federal prisoner to col-
laterally attack his conviction and sentence, except in the rare cases
where it is inadequate to do so.”). Burk cannot avoid the proce-
dural restrictions imposed on such a motion by naming her request
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12 Opinion of the Court 20-14753
a motion for a “stay pending a hearing.”
See id. (“[T]he cases in
this circuit consistently recognize that prisoners who seek to collat-
erally attack a conviction or sentence must satisfy the procedural
requisites of § 22542 or § 2255, however their petition is cap-
tioned.”). As a practical matter, the relief Burk seeks in her motion
is to have her federal conviction and sentence vacated on collateral
review, relief that—in Burk’s case—is available only under § 2255.
As the district court noted, Burk failed to file a timely § 2255
petition despite being “specifically afforded the opportunity to do
so.” And at this point, any such petition would be untimely. A
one-year statute of limitations applies to motions to vacate a con-
viction or sentence under § 2255.
See 28 U.S.C. § 2255(f). As rele-
vant here, the statute begins to run on “the date on which the judg-
ment of conviction becomes final.”
Id. § 2255(f)(1).3 The Govern-
ment asserts, and Burk does not dispute, that her conviction be-
came final on September 12, 2018, which is presumably the date
her time expired to file a petition for certiorari seeking review of
2 28 U.S.C. § 2254 applies to persons “in custody pursuant to the judgment of
a State court.” 28 U.S.C. § 2254(a). 28 U.S.C. § 2255 applies to federal prison-
ers. 28 U.S.C. § 2255.
3 There are three other potential starting dates for the statute of limitations,
but none of those dates are applicable here.
See 28 U.S.C. § 2255(f)(2)-(4)
(providing for a later starting date in cases where a movant was “prevented
from making a motion” by governmental action, where the Supreme Court
has “newly recognized” the right upon which the motion is based, and where
“the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence”).
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20-14753 Opinion of the Court 13
this Court’s opinion affirming her conviction and sentence on di-
rect appeal.
See Akins v. United States, 204 F.3d 1086, 1089 n.1
(11th Cir. 2000) (“A conviction ordinarily becomes final when the
opportunity for direct appeal of the judgment of conviction has
been exhausted.”);
cf. Clay v. United States, 537 U.S. 522, 527 (2003)
(“Finality attaches when this Court affirms a conviction on the
merits on direct review or denies a petition for a writ of certiorari,
or when the time for filing a certiorari petition expires.”). Burk did
not file her first motion in the district court until September 2020,
clearly outside the one-year limitations period.
This Court has recognized that the § 2255 limitations period
is subject to equitable tolling.
See Akins, 204 F.3d at 1089. Equita-
ble tolling is appropriate when a movant files his § 2255 motion
outside the limitations period “because of extraordinary circum-
stances that are both beyond his control and unavoidable even with
diligence.”
Id. (quotation marks omitted). But again, Burk has not
alleged any circumstances that would warrant equitable tolling
here. Accordingly, we agree with the district court’s ruling on the
merits finding that there is no legal basis for Burk’s motion for a
stay pending a hearing and that any relief she might otherwise be
able to seek under § 2255 is time-barred.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
first and second orders denying Burk’s motion for a stay pending a
hearing.
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