David Clum, Jr. v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11976
Non-Argument Calendar
____________________
DAVID CLUM, JR.,
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 Nos. 0:22-cv-60954-WPD,
0:11-cr-60273-WPD-3
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2 Opinion of the Court 22-11976
____________________
Before G RANT, L AGOA, and BRASHER , Circuit Judges.
PER CURIAM:
David Clum, Jr., a federal prisoner proceeding pro se,
appeals the district court’s order dismissing his 28 U.S.C. § 2255
motion. The motion was dismissed for lack of jurisdiction because
it was an unauthorized second or successive motion. The
government responds by moving for summary affirmance of the
district court’s order. It argues that Clum’s § 2255 motion was
second or successive because his initial motion was dismissed on
the merits in 2017 and the predicates for his claims were ripe when
he filed his initial § 2255 motion. We agree and grant the
government’s motion for summary affirmance.
I.
Clum was convicted of one count of conspiracy to defraud
the United States, in violation of 18 U.S.C. § 286, and 41 counts of
making a false claim upon the United States, in violation of 18
U.S.C. §§ 287 and 2. He was sentenced to 293 months
imprisonment. On direct appeal, we affirmed his convictions and
sentence. See United States v. Clum, 607 F. App’x 922 (11th Cir.
2015).
In 2016, Clum petitioned for a writ of habeas corpus, under
28 U.S.C. § 2241. His petition was filed in the Eastern District of
Arkansas, where he was being held in custody. That court
recharacterized his petition as a § 2255 motion to vacate and
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22-11976 Opinion of the Court 3
transferred it to the Southern District of Florida, where he was
sentenced. In recharacterizing the petition, the Arkansas district
court informed Clum that he would be limited in his ability to file
successive motions and gave him a chance to withdraw. Clum did
not withdraw and his § 2255 motion was denied in the Southern
District of Florida.
Last year, Clum filed a second § 2255 motion. He claims
that he was actually innocent and did not participate in the
conspiracy to file fraudulent tax claims. In support, he attached an
affidavit from Penny Lea Jones, one of his codefendants, that he
says he could not have procured at trial. He also claims that the
prosecution withheld exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963), which he says he only discovered
during his initial § 2255 proceeding. And he claims that his trial
counsel was ineffective when he stated that he was unable to
review all the discovery evidence and by not calling Jones to testify
in Clum’s defense.
The district court sua sponte dismissed the motion for lack
of jurisdiction because the motion was second or successive and
filed without the permission of the court of appeals. Clum
appealed the district court’s order and the government now moves
for summary affirmance.
II.
We review de novo a district court’s dismissal of a § 2255
motion as second or successive. Boyd v. United States, 754 F.3d 1298,
1301 (11th Cir. 2014). Summary disposition is appropriate where
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4 Opinion of the Court 22-11976
“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 outcome of
the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969).
III.
Section 2255 allows a federal prisoner to collaterally attack
his conviction and sentence. See 28 U.S.C. § 2255(a). But the
statute only authorizes a single motion as of right; a federal
prisoner who wishes to file a second or successive motion to vacate
must move the court of appeals for an order authorizing the district
court to consider such a motion. See id. § 2255(h); id.
§ 2244(b)(3)(A). If a movant submits a second or successive § 2255
motion without first receiving authorization, a district court is
without jurisdiction to hear the case and must dismiss the motion.
Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).
Clum’s motion is second or successive because his initial
§ 2241 petition was recharacterized as a § 2255 motion and
dismissed on the merits. A numerically second or successive § 2255
motion, however, does not always qualify as second or successive.
See Stewart v. United States, 646 F.3d 856, 859–60 (11th Cir. 2011).
When the basis for a numerically second or successive motion did
not exist before proceedings on the initial § 2255 motion
concluded, the claim falls within “a small subset of unavailable
claims that must not be categorized as successive.” Id. at 863.
Claims that are based on facts that existed at the time of the first
habeas petition but were not discovered until later are still
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22-11976 Opinion of the Court 5
successive. See id. But a § 2255 motion filed based on the vacatur
of prior convictions is not successive when the convictions were
vacated after the movant’s first § 2255 motion was filed. See id.
The factual predicates to support Clum’s claims existed
when he filed his initial § 2255 motion and there has been no
intervening judgment. Clum says that the Jones affidavit, which he
included in support of his misjoinder claim, was unavailable to him
at the time of his first motion. But the facts that Jones attests to
existed at the time of his trial and when he filed his first motion, so
his claims based on this supposedly new evidence are still
successive. See id. Moreover, the Brady violations occurred at his
trial and before his initial § 2255 motion and his ineffective-
assistance-of-counsel claim is based on information available to
him at trial. Accordingly, Clum’s motion is second or successive
and the district court lacked jurisdiction to consider it. Because we
have not permitted Clum to file a second or successive motion, the
government’s position is clearly correct as a matter of law.
The government’s motion for summary affirmance is
GRANTED.
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