                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                 April 10, 2007
                               No. 06-11630                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 00-00001-CR-JAL

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

EWIN OSCAR MARTINEZ,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (April 10, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Ewin Oscar Martinez, a federal prisoner proceeding pro se, appeals the

district court’s denial of his “Motion for Request Preserved Error Review as to
Sentencing,” which he filed pursuant to Rules 201(d) and (f) of the Federal Rules

of Evidence. The district court construed the filing as one seeking post-conviction

relief under 28 U.S.C. § 2255. We affirm.

        The relevant facts are these.    On June 2, 2000, Martinez and two co-

defendants were convicted of conspiracy to commit hostage-taking, in violation of

18 U.S.C. § 1203(a); hostage-taking, in violation of 18 U.S.C. § 1203(a);

conspiracy to commit carjacking, in violation of 18 U.S.C. § 1203(a); carjacking,

in violation of 18 U.S.C. §§ 2119(2) and 2; and using and carrying a firearm in

relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c) and 2. The

district court sentenced Martinez to a life term of imprisonment.     We affirmed

Martinez’s and his co-defendants’ convictions and sentences. See United States v.

Ferreira, 275 F.3d 1020 (11th Cir. 2001).

        In December 2002, Martinez filed a post-conviction motion to vacate,

pursuant to 28 U.S.C. § 2255, in which he sought retroactive application of

Apprendi v. New Jersey, 530 U.S. 466 (2000). From March 2003 to December

2005,    Martinez   filed   numerous    supplements   and   memoranda,   all   citing

Apprendi and its progeny, in support of his § 2255 motion. While his § 2255

motion remained pending, Martinez, proceeding under his direct criminal case,

filed the present “Motion for Request Preserved Error Review as to Sentencing”



                                            2
pursuant to Rules 201(d) and (f) of the Federal Rules of Evidence, in which he

sought the district court to take judicial review of Apprendi and its progeny.

      On January 27, 2006, the district court denied Martinez’s § 2255 motion,

and found, inter alia, that “the Eleventh Circuit has unequivocally held that the

Supreme Court’s ruling in Blakely[1] does not apply retroactively to cases on

collateral review.” On the same day, by separate order, the district court denied

Martinez’s “Motion for Request Preserved Error Review as to Sentencing,”stating

that the denial was based on “reasons stated in the Court’s Order of Final Judgment

in Case No. 03-23561-CIV-Lenard (D.E. ___), in which Petitioner’s Motion to

Vacate Sentence was denied.”

      On March 6, 2006, Martinez filed a notice of appeal (“NOA”) as to the

district court’s January 27, 2006 denial of his “Motion for Request Preserved Error

Review as to Sentencing.” We noted a possible lack of jurisdiction due to the

untimeliness of Martinez’s NOA, which although filed more than 10 days after the

order appealed, was filed within the 40-day extension period allowed in criminal

cases. For this reason, we remanded the matter to the district court for further

proceedings to determine whether Martinez had shown excusable neglect for the

late filing of his NOA. On remand, the district court construed Martinez’s NOA as



      1
          Blakely v. Washington, 542 U.S. 296 (2004).

                                              3
a motion for an extension of time for filing the NOA based on his assertion that he

did not receive its order denying his motion until February 28, 2006, nearly one

month after its issue, and, therefore, he demonstrated excusable neglect in his late

filing of the NOA.2

       On appeal, Martinez argues that the district court erred by denying his

“Motion for Request Preserved Error Review as to Sentencing” in which he

requested the court to take judicial notice of Apprendi and its progeny, pursuant to

Fed. R. Evid. 201(d), and that the district court illegally enhanced his sentence

based on an erroneous interpretation of the law. We disagree.

       Because Martinez’s “Motion for Request Preserved Error Review as to

Sentencing” constituted a collateral attack on his sentence as unconstitutional, the

proper avenue of relief was 28 U.S.C. § 2255. United States v. Holt, 417 F.3d

1172, 1175 (11th Cir. 2005) (affirming the district court’s denial of a motion for

audita querela). A prisoner in federal custody may file a motion to vacate, set

aside, or correct sentence pursuant to § 2255, “claiming the right to be released

upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such



       2
        We discern no error in the district court’s excusable-neglect determination and,
accordingly, have jurisdiction over the appeal and will proceed to the merits of Martinez’s
arguments.

                                                4
sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. § 2255. However, before filing

a second or successive motion or petition, a petitioner must obtain an order from

the court of appeals authorizing the district court to consider the second or

successive motion or petition. See 28 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2255

(cross-referencing § 2244).      Without such authorization, a district court lacks

jurisdiction to consider a second or successive petition. See Farris v. United States,

333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam).

       When Martinez filed the instant Motion, he already had filed an

unsuccessful § 2255 motion (asserting the same Apprendi claim). Accordingly, he

was required to seek the permission of this Court prior to proceeding with his

“Motion For Request Preserved Error Review As To Sentencing.” Because there

was no evidence in the record that he had obtained our authorization, the district

court had no jurisdiction to consider Martinez’s Motion, which, in fact, was a

second or successive § 2255 motion. Even though the district court denied

Martinez’s motion rather than dismissing it for lack of jurisdiction, we nevertheless

affirm the district court’s ruling.

       AFFIRMED.




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