           Case: 15-13281   Date Filed: 09/15/2017   Page: 1 of 11




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-13281
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:10-cr-14089-KMM-1



HIPOLITO ALEJANDRO FELIX,

                                              Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                              Respondent - Appellee.

                       ________________________

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

                            (September 15, 2017)

Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Hipolito Alejandro Felix, proceeding pro se on appeal, appeals from the

denial of his “Motion for Review of the Unlawful Sentence in the Above Styled

Action, Pursuant to 18 U.S.C. § 3742(a)(1).” The district court construed the

motion as an unauthorized second or successive 28 U.S.C. § 2255 motion and

denied it for lack of subject matter jurisdiction. On appeal, Felix argues that the

district court failed to look beyond the label of his motion, violated his due process

rights, lacked jurisdiction to hear the case, and committed manifest injustice. After

thorough review, we affirm.

                                I. BACKGROUND

A.    Underlying Criminal Case

      On November 18, 2010, a federal grand jury returned an indictment charging

Felix with: (1) attempting to employ, use, persuade, induce, entice, and coerce a

minor to produce child pornography, in violation of 18 U.S.C. § 2251(a) (“Count

One”); (2) knowingly persuading, inducing, enticing, and coercing a minor to

perform sex acts, in violation of 18 U.S.C. § 2422(b) (“Count Two”); and

(3) knowingly transferring obscene matter to another individual under the age of

sixteen years, in violation of 18 U.S.C. § 1470 (“Count Three”). On January 3,

2011, pursuant to a written plea agreement, and having conferred with his lawyer,

Felix pled guilty to Count One. In return, the government agreed to dismiss Counts




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Two and Three of the indictment and to request a three-level reduction to Felix’s

advisory guidelines range for acceptance of responsibility.

      In conjunction with the plea agreement, Felix and the government submitted

a statement of stipulated facts to which Felix agreed. The stipulated facts described

at length Felix’s attempts to convince his 15-year-old foster daughter to send

sexually explicit pictures of herself to Felix. From at least December 2009 to

January 14, 2010, Felix sent his foster daughter text messages—occasionally

including sexually explicit photos of himself—and requested that his foster

daughter send sexually explicit photos back to him.

      More specifically, per the stipulated facts, on January 19, 2010, Detective

Sheila LaGrega of the Port St. Lucie Police Department began an investigation into

inappropriate text messages sent to a 15–year–old female who was identified as

“AB.” United States v. Felix, 497 F. App’x 942, 944 (11th Cir. 2012) (per curiam)

(unpublished). AB advised LaGrega that she had received sexually explicit text

messages on her cell phone from a Yahoo! user named “tania_hot69.” Id. LaGrega

reviewed the contents of AB’s cell phone and discovered messages from

“tania_hot69” that contained sexually explicit pictures of Felix and requests for

similar photos from AB. Id. LaGrega also discovered that AB sent sexually explicit

photos of herself in return to “tania_hot69.” Id. AB asked “tania_hot69” to identify

himself or herself and received a response that the user was Felix. Id. LaGrega


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later interviewed Felix, who admitted that he created the “tania_ hot69” Yahoo!

username and sent text messages to AB using that username. Id.

B.    Sentencing

      Following Felix’s guilty plea, the probation officer prepared a presentence

investigation report (“PSI”). The PSI detailed the text messages that Felix sent his

foster daughter, including messages in which Felix told his foster daughter that he

wanted to have sex with her. According to the PSI, Felix told law enforcement that

he sent between 50 and 100 text messages to his foster daughter. After setting forth

Felix’s total offense level and criminal history category, the PSI recommended an

advisory guidelines range of 180 to 210 months’ imprisonment. Felix did not

object to the PSI’s advisory guidelines range calculation.

      On February 28, 2011, the district court held a sentencing hearing and heard

argument from Felix’s lawyer and from the government. Following argument, the

district court adopted the PSI’s undisputed advisory guidelines range and

sentenced Felix to 180 months’ imprisonment, the low end of that range.

C.    Felix’s Attempted Plea Change and Direct Appeal

      On March 8, 2011, Felix filed a pro se motion to withdraw his guilty plea,

stating that he was now “ready for trial.” The district court denied Felix’s motion

as both procedurally barred under Federal Rule of Criminal Procedure 11(e) and

otherwise unmeritorious.


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      On March 10, 2011, Felix filed a counseled appeal of his conviction, arguing

that the magistrate judge committed plain error by not fully advising him of the

charges prior to his guilty plea. In November 2012, this Court affirmed Felix’s

conviction, reviewing the plea colloquy and concluding that there was ample

support for the magistrate judge’s finding that Felix understood the facts to which

he was admitting and that there was no plain error in the plea colloquy. See Felix,

497 F. App’x at 951.

D.    First Motion to Vacate Under 28 U.S.C. § 2255

      On December 4, 2013, Felix filed a pro se motion to vacate his sentence

pursuant to 28 U.S.C. § 2255. In a supporting letter, Felix stated that he pled guilty

“knowing [he was] not guilty” because his trial lawyer told him that he would

otherwise receive a life sentence.

      Felix also filed a supporting memorandum arguing that his trial lawyer

provided him with ineffective assistance of counsel. Specifically, Felix argued that

his cell phone number was not the cell phone number linked to the sexually

explicit text messages but that his trial lawyer failed to investigate this discrepancy.

Felix argued that his trial lawyer’s failure to investigate “caused [Felix] to enter an

unknowing, unintelligent, and an involuntary plea of guilty.”

      On October 1, 2014, a magistrate judge recommended that Felix’s § 2255

motion be denied because Felix had shown neither deficient performance on the


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part of his trial lawyer nor prejudice on account of that performance. On October

21, 2014, the district court accepted the magistrate judge’s recommendation and

denied Felix’s § 2255 motion. Felix did not appeal.

E.    Successive § 2255 Motions

      On November 3, 2014, Felix filed a pro se motion titled, “Defense Motion

for Relief from Judgment under Fed. R. Civ. P. 60(b)(4).” In the motion, Felix

raised a series of claims concerning a coerced confession, an involuntary guilty

plea, a fraud on the court, and an absence of jurisdiction, among other claims. A

magistrate judge reviewed Felix’s motion, construed it as a second § 2255 motion

because it sought to vacate Felix’s sentence, and recommended that the motion be

denied for want of jurisdiction, having been filed without leave from this Court to

do so. On December 29, 2014, the district court accepted the magistrate judge’s

recommendation and denied Felix’s motion. Felix did not appeal.

      On January 20, 2015, Felix filed another pro se motion, titled, “Motion for

Review of Sentence Pursuant to U.S.C. § 3742(a)(l),” disputing the legality of his

guilty plea. Felix again asserted that his trial lawyer’s ineffective assistance

deprived him of due process and rendered his guilty plea invalid. Upon

recommendation from the magistrate judge, the district court determined that Felix

sought to vacate his sentence, construed Felix’s motion as a successive § 2255




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motion, and accordingly denied the motion for want of jurisdiction. Felix again did

not appeal.

F.    The Instant Motion

      On June 18, 2015, Felix filed the instant pro se motion, titled “Motion for

Review of the Unlawful Sentence in the Above Styled Action, Pursuant to 18

U.S.C. § 3742(a)(1).” In the motion, Felix argued that the grand jury charged him

in Count Two with persuading, inducing, enticing, and coercing a minor to perform

sex acts, in violation of 18 U.S.C. § 2422(b). Felix suggested that, per the factual

allegations in the indictment, he had in fact been charged with “Rape and Rape in

the Second Degree,” in violation of 18 U.S.C. §§ 2031 and 2032. Because

Congress repealed these statutes (§§ 2031 and 2032) in November 1986, Felix

argued that the district court lacked jurisdiction to consider his case under the

criminal statutory scheme.

      Felix also argued that the government was “circumventing” the repeal of

§§ 2031 and 2032 by prosecuting him under 18 U.S.C. § 2242(b) and that the

government was “usurp[ing] jurisdiction” to attempt to “regulate primary conduct

directly . . . within the state borders of Florida,” in violation of Congress’s

Commerce Clause Power. Felix asked the district court to accordingly “review” his

unlawful sentence and “dissolve” his case.




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       On July 8, 2015, the district court entered a paperless order denying Felix’s

motion for lack of jurisdiction. The district court construed Felix’s filing as a

motion to vacate under § 2255 because the relief sought—an order “dissolving” the

sentence on the ground that it was imposed in violation of the Constitution or laws

of the United States—was “precisely the type of collateral attack on a conviction

and sentence contemplated by § 2255.” The district court then noted that, because

Felix already filed a first § 2255 motion on December 4, 2013, he had to first

obtain authorization from this Court before filing the June 18, 2015 § 2255 motion.

See 28 U.S.C. § 2255(h). And because Felix did not do so, the district court

determined that it was without jurisdiction to address the June 18, 2015 § 2255

motion and denied it. 1

       On July 20, 2015, Felix timely appealed pro se.

                                       II. DISCUSSION

A.     Relevant Law

       Following direct appeal, a federal prisoner seeking to challenge his

conviction and sentence “typically must collaterally attack [them] through a 28

U.S.C. § 2255 motion.” Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir.




       1
        The district court also determined that Felix had not made a substantial showing of a
denial of a constitutional right and was not otherwise entitled to a certificate of appealability
under 28 U.S.C. § 2253(c).
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2014). 2 Only a single § 2255 is allowed, and successive attempts at relief are

limited. Id. A second or successive § 2255 motion cannot be considered by the

district court unless it has been certified by this Court as containing either:

(1) newly discovered evidence that, viewed in light of the evidence as a whole,

establishes by clear and convincing evidence that no reasonable factfinder would

find the defendant guilty or (2) a new retroactive rule of constitutional law that was

not previously available to the defendant. 28 U.S.C. § 2255(h); Boyd, 754 F.3d at

1301. Without such certification, the district court lacks jurisdiction to consider a

second or successive § 2255 motion and must dismiss it. United States v. Holt, 417

F.3d 1172, 1175 (11th Cir. 2005) (per curiam).

       “Federal courts have long recognized that they have an obligation to look

behind the label of a motion filed by a pro se inmate and determine whether the

motion is, in effect, cognizable under a different remedial statutory framework.”

United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). The phrase

“second or successive” is not self-defining and does not refer to all habeas petitions

filed second or successively in time. Boyd, 754 F.3d at 1301. However, if the

defendant “could have raised his or her claim for relief in an earlier filed motion”

but failed to do so “without a legitimate excuse,” the bar on second or successive

§ 2255 motions applies. Id.

       2
        “We review de novo the district court’s dismissal of a 28 U.S.C. § 2255 motion as
second or successive.” McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
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B.    Felix’s Motion Was a Successive § 2255 Motion Filed without Leave of
      This Court

      Here, the district court did not err in construing Felix’s June 18, 2015 motion

as a successive § 2255 motion. Although the motion was labeled as a “Motion for

Review of the Unlawful Sentence in the Above Styled Action, Pursuant to 18

U.S.C. § 3742(a)(1),” Felix sought to challenge the validity of his 2011 conviction

and sentence by challenging the district court’s jurisdiction over the originally

charged offenses and by questioning the constitutionality of the alleged statutory

charging scheme. This is the type of collateral attack contemplated by § 2255. See

28 U.S.C. § 2255(a); see also Holt, 417 F.3d at 1175 (“Because, in the instant case,

[the defendant] is collaterally attacking his sentence as violating the United States

Constitution, the proper avenue of relief is § 2255.”). Because Felix’s challenge in

the instant motion is thus a collateral attack on his conviction and sentence, the

district court properly construed Felix’s motion as an additional, and therefore

successive, § 2255 motion.

      The district court also did not err in denying Felix’s motion for want of

jurisdiction. It is undisputed that Felix’s claims in the instant § 2255 motion—that

his conviction was based upon a faulty indictment, that the district court lacked

jurisdiction to impose the sentence, and that the conviction and sentence are

unconstitutional—could have been raised in his initial December 4, 2013 § 2255



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motion. See Boyd, 754 F.3d at 1301. However, Felix did not do so and does not

offer an explanation as to why he did not.

      Felix’s stated theory of relief under § 3742(a)(1) also does not otherwise

apply here because that statute governs direct appeals and because Felix’s direct

appeal was considered and decided by this Court in 2012. See 18 U.S.C.

§ 3742(a)(1); see also Felix, 497 F. App’x at 951.

      Because Felix was required to obtain this Court’s permission before filing

the instant motion yet failed to do so, the district court lacked subject matter

jurisdiction over his claims and appropriately denied the motion. 28 U.S.C.

§ 2255(h); Holt, 417 F.3d at 1175.

                                III. CONCLUSION

      For all of the above reasons, we affirm the district court’s denial of Felix’s

motion.

      AFFIRMED.




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