Dynza Mackey v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13094
Non-Argument Calendar
____________________
DYNZA MACKEY,
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-61610-BB
____________________
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2 Opinion of the Court 21-13094
Before J ORDAN, NEWSOM , and BRANCH, Circuit Judges.
PER CURIAM:
Dynza Cornelius Mackey, a federal prisoner proceeding
pro
se, appeals following,
inter alia, the district court’s: (i) denial of his
post-judgment motion to vacate his 2019 federal court conviction
based on ineffective assistance of counsel under 28 U.S.C. § 2255;
and (ii) dismissal, without prejudice, of certain non-habeas claims
concerning his conditions of confinement and compassionate re-
lease. The government, in turn, moves for summary affirmance
and to stay the briefing schedule.
I.
Court records show that a federal grand jury originally
charged Mackey with, in relevant part, one count of identity fraud
and one count of identity fraud with intent to commit unlawful ac-
tivity. He later pled guilty to those offenses. The district court
entered a final judgment in his case in 2019. He did not appeal.
In 2020, however, Mackey filed two motions with the dis-
trict court. First, he moved for home confinement or compassion-
ate release under the First Step Act,1 which the district court de-
nied.
1 Pub. L. No. 115-391, 132 Stat. 5194, 5239 (Dec. 21, 2018) (“First Step Act”).
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21-13094 Opinion of the Court 3
Second, and in the meantime, Mackey moved the district
court to vacate his 2019 convictions under 28 U.S.C. § 2255, argu-
ing that his trial counsel was ineffective and that his conditions of
incarceration at the private prison facility where he was incarcer-
ated fell below the standard of care in prisons operated by the gov-
ernment. Several of his conditions of confinement arguments were
consistent with his compassionate release motion.
The district court denied Mackey’s § 2255 motion, finding
that he was not entitled to relief on his ineffective assistance of
counsel claims, and that his conditions of confinement claim and
compassionate release claim were not cognizable under a 28 U.S.C.
§ 2255 motion. Mackey ultimately appealed this ruling.
We later denied Mackey a certificate of appealability
(“COA”) for his ineffective assistance of counsel claims, and we de-
nied a COA as unnecessary for his conditions of confinement and
compassionate release claims. We have subsequently dismissed
the portion of his appeal regarding his ineffective assistance of
counsel claims but have allowed his remaining claims to move for-
ward.
Mackey, who is still
pro se on appeal, raised several argu-
ments in his initial brief relating to the district court’s denial of in-
effective assistance of counsel claims, but he did not otherwise offer
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4 Opinion of the Court 21-13094
arguments relating to his conditions or confinement or compas-
sionate release claims.2
Rather than responding, the government moves for sum-
mary affirmance and to stay the briefing schedule, arguing that be-
cause Mackey does not mention his conditions of confinement and
compassionate release claims, they are abandoned, and summary
affirmance is warranted. Mackey has not responded to this motion.
II.
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). A motion for summary affirmance 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 appropriate, we will review legal issues in a § 2255
proceeding
de novo and factual findings under a clear error stand-
ard.
United States v. Walker, 198 F.3d 811, 813 (11th Cir. 1999).
Pro se pleadings are liberally construed.
Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998). Arguments not
2 Mackey does not expressly challenge the district court’s denial of a motion
for reconsideration he filed before appealing. Accordingly, he has abandoned
any argument in that respect.
Sapuppo v. Allstate Floridian Ins., Co., 739 F.3d
678, 680 (11th Cir. 2014).
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21-13094 Opinion of the Court 5
raised in an initial brief are abandoned, however.
Sapuppo v. All-
state Floridian Ins., Co., 739 F.3d 678, 680 (11th Cir. 2014). Forfei-
ture is the failure to make a timely assertion of a right, and the fail-
ure to raise an issue in an initial brief on direct appeal is treated as
forfeiture of the issue.
United States v. Campbell, 26 F.4th 860, 873
(11th Cir. 2022) (
en banc),
cert. denied, (U.S. Oct. 3, 2022) (No. 21-
1468).
Unless a circuit judge or district court judge issues a COA,
an appeal may not be taken to the court of appeals from the final
order in a proceeding under § 2255. 28 U.S.C. § 2253(c)(1)(B). As
a result, until a COA has been issued, federal courts of appeal lack
jurisdiction to rule on the merits of appeals filed by habeas petition-
ers.
United States v. Cody, 998 F.3d 912, 915 (11th Cir. 2021).
Claims challenging the fact or duration of confinement fall
within the core of habeas corpus, while claims challenging the con-
ditions of confinement fall outside that core and may be brought
pursuant to 42 U.S.C. § 1983.
Nelson v. Campbell, 541 U.S. 637,
643 (2004).
A district court has no inherent authority to modify a de-
fendant’s sentence and may do so “only when authorized by a stat-
ute or rule.”
United States v. Puentes, 803 F.3d 597, 605–06 (11th
Cir. 2015). The First Step Act expressly permits district courts to
reduce a previously imposed term of imprisonment.
Jones,
962 F.3d at 1297. That law, in part, amended 18 U.S.C.
§ 3582(c)(1)(A) to increase the use and transparency of compassion-
ate release of federal prisoners.
See First Step Act § 603. It provides
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6 Opinion of the Court 21-13094
that a “court may not modify a term of imprisonment once it has
been imposed” except under certain circumstances. 18 U.S.C.
§ 3582(c).
Here, we grant the government’s motion for summary affir-
mance and deny as moot its motion to stay the briefing schedule.
As noted above, we have already dismissed the portion of Mackey’s
appeal relating to his ineffective assistance of counsel claims, due
to the absence of a certificate of appealability, meaning that we can-
not consider those claims now.
See 28 U.S.C. § 2253(c)(1)(B);
Cody, 998 F.3d at 915. Additionally, he has abandoned his condi-
tions of confinement and his compassionate release arguments, as
he does not expressly or implicitly raise them on appeal.
Sapuppo,
739 F.3d at 680. Although we construe
pro se filings liberally, there
are no arguments related to those issues to construe, so they are
forfeited, and we do not have to consider them.
Campbell, 26 F.4th
at 873;
Tannenbaum, 148 F.3d at 1263.
Regardless, even assuming that Mackey’s brief implicitly
challenges the dismissal of his conditions of confinement and com-
passionate release claims, the record shows that the district court
properly dismissed them without prejudice. A federal prisoner
should bring conditions of confinement challenges in a civil-rights
suit filed under
Bivens,
see Correctional Services Corp. v. Malesko,
534 U.S. 61, 71–72 (2001), not in a motion filed under § 2255.
Nel-
son, 541 U.S. at 643. For his compassionate release arguments, the
proper vehicle to bring those claims was in a motion under 18
U.S.C. § 3582(c), not § 2255. 18 U.S.C. § 3582(c). Therefore, the
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21-13094 Opinion of the Court 7
district court did not err in dismissing those claims, as his motion
was not the proper vehicle to bring those claims.
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.
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