USA v. Gary Jay Goldberg

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10268
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY JAY GOLDBERG,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:13-cr-80082-KAM-1
____________________
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2 Opinion of the Court 22-10268
Before LUCK, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Gary Goldberg, a federal prisoner proceeding
pro se, appeals
the district court’s order denying his
pro se construed successive 28
U.S.C. § 2255 motion. In support, he argues that the district court
should have construed his motion as having been brought under
28 U.S.C. § 2241 and that it did not provide him with proper notice
when it construed his motion as one under § 2255, citing
Castro v.
United States, 540 U.S. 375 (2003). He also requests that we treat
his brief as an application for permission to file a successive § 2255
motion.
The government responded by moving for summary affir-
mance and for a stay of the briefing schedule. It contends that
Goldberg filed an earlier 28 U.S.C. § 2255 motion that the district
court denied on its merits, and thus, he had to get our permission
to file a successive 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,
or where, as is more frequently the case, the appeal is frivolous.”
Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir.
1969).
We review
de novo the district court’s dismissal of a § 2255
motion as successive.
McIver v. United States, 307 F.3d 1327, 1329
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22-10268 Opinion of the Court 3
(11th Cir. 2002). Under the Antiterrorism and Effective Death Pen-
alty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, a
federal prisoner may only file one § 2255 motion, and assuming
that it is denied in a “judgment on the merits,” he must obtain leave
from the Court of Appeals before filing a successive motion.
See
Boyd v. United States, 754 F.3d 1298, 1299-1302 (11th Cir. 2014); 28
U.S.C. § 2244(b)(3)(A). Without our authorization, the district
court lacks jurisdiction to consider a successive habeas petition.
Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003).
“Federal courts are obligated to look beyond the label of a
pro se inmate’s motion to determine if it is cognizable under a dif-
ferent statutory framework.”
United States v. Stossel, 348 F.3d
1320, 1322 n.2 (11th Cir. 2003). Therefore, a district court is au-
thorized to recharacterize a
pro se litigant’s motion for relief from
a criminal judgment as a § 2255 motion to vacate.
See Castro, 540
U.S. at 382-83. However, a district court must warn a
pro se litigant
about restrictions on second or successive § 2255 motions when it
construes his motion as a first § 2255 motion.
Id. at 383.
Pursuant to § 2241, federal courts may grant habeas relief to
prisoners who are being detained in violation of the Constitution.
See 28 U.S.C. § 2241(c)(3). “A prisoner in custody pursuant to a
federal court judgment may proceed under § 2241 only when he
raises claims outside the scope of § 2255(a), that is, claims concern-
ing execution of his sentence.”
McCarthan v. Dir. of Goodwill In-
dus.-Suncoast, Inc., 851 F.3d 1076, 1089 (11th Cir. 2017) (
en banc)
(quotation marks omitted) (“A motion to vacate covers only
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4 Opinion of the Court 22-10268
challenges to the validity of a sentence, but the saving clause and a
petition for a writ of habeas corpus cover challenges to the execu-
tion of a sentence.”).
Here, the district court properly determined that it lacked
jurisdiction because Goldberg’s initial § 2255 motion had been de-
nied on its merits and he had not received our permission to file a
successive § 2255 motion. To the extent that he argues that the
district court should have construed his motion as being filed under
§ 2241, his motion was not cognizable under § 2241 because he at-
tacked the validity of his sentence. Also, his
Castro argument is
unavailing because the district court did not construe his motion as
a first § 2255 motion but a successive one, so the
Castro warnings
were unnecessary. Finally, we deny his request to construe his in-
itial brief as a successive application because, while his appeal was
pending, he filed a separate application and raised the same argu-
ments that he raises in his initial brief, and we denied it.
Accordingly, we GRANT the government’s motion for
summary affirmance, DENY as moot its motion to stay the briefing
schedule, AFFIRM the denial of Goldberg’s construed § 2255 mo-
tion, and DENY his request to construe his initial brief as a succes-
sive application.
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