           Case: 19-14137   Date Filed: 04/03/2020   Page: 1 of 4



                                                     [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-14137
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket Nos. 9:16-cv-81174-KAM,
                        9:12-cr-80033-KAM-1


HARRY O. DORCH,

                                                     Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                     Respondent-Appellee.

                      ________________________

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

                             (April 3, 2020)



Before WILSON, ANDERSON and EDMONDSON, Circuit Judges.



PER CURIAM:
               Case: 19-14137    Date Filed: 04/03/2020    Page: 2 of 4




      Harry Dorch, a federal prisoner proceeding pro se, appeals the district

court’s dismissal of his pro se 28 U.S.C. § 2255 motion to vacate. The government

has moved for summary affirmance and a stay of the briefing schedule. We

summarily affirm the dismissal and deny as moot the government’s motion to stay

the briefing schedule.

      In 2012, Dorch pleaded guilty to possessing a firearm as a convicted felon,

in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The district court sentenced Dorch

under the Armed Career Criminal Act (“ACCA”) to a mandatory minimum

sentence of 180 months’ imprisonment. Dorch filed no direct appeal.

      In 2016, Dorch filed pro se a section 2255 motion to vacate his sentence in

the light of the Supreme Court’s decisions in Johnson v. United States, 135 S. Ct.

2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). The district

court denied Dorch’s motion. The court concluded that Dorch’s ACCA-enhanced

sentence was supported by at least three convictions for serious drug offenses.

Both the district court and this Court denied Dorch a certificate of appealability.

      In October 2019, Dorch filed pro se the section 2255 motion at issue in this

appeal. By the motion, Dorch sought to withdraw his guilty plea. Briefly stated,

Dorch argued that his conviction and sentence were unconstitutional in the light of

the Supreme Court’s decision in Rehaif v. United States, 139 S. Ct. 2191 (2019).


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      The district court determined that Dorch’s 2019 motion constituted an

unauthorized second or successive section 2255 motion and was, thus, subject to

dismissal for lack of jurisdiction. This appeal followed.

      Summary disposition is appropriate where “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, 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 dismissal of a section 2255 motion as second or

successive. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). We

construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998).

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a prisoner who has filed a section 2255 motion to vacate is limited in

his ability to file a “second or successive” section 2255 motion. Boyd, 754 F.3d at

1301. “If a court determines that a § 2255 motion is ‘second or successive,’ the

motion must be certified by the court of appeals before the district court may reach

the merits of the motion.” Id. Without such authorization, “the district court lacks

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

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




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      The district court determined correctly that Dorch’s October 2019 section

2255 motion was second or successive. Dorch had already filed a section 2255

motion in 2016, and the district court denied that motion on the merits. Because

Dorch failed to receive authorization from this Court to file a second section 2255

motion, the district court concluded properly that the 2019 motion was subject to

dismissal for lack of jurisdiction. See Farris, 333 F.3d at 1216.

      No substantial question exists on the outcome of this appeal. Because the

government’s position is correct as a matter of law, summary affirmance is

appropriate. See Groendyke Transp., Inc., 406 F.2d at 1162. The government’s

motion for summary affirmance is GRANTED, and the government’s motion to

stay the briefing schedule is DENIED as moot.

      AFFIRMED.




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