           Case: 18-15265   Date Filed: 03/26/2020   Page: 1 of 6



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-15265
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:12-cr-00228-RAL-TBM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff–Appellee,

                                 versus

CALVIN JOSEPH MOORE,

                                                        Defendant–Appellant.

                      ________________________

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

                            (March 26, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Calvin Moore, a federal prisoner serving a 120-month sentence for

attempting to possess cocaine with intent to distribute, appeals the district court’s

sua sponte denial of his post-conviction discovery motion. Moore argues that he

needed the discovery to make a prima facie showing for leave from this Court to

file a successive 28 U.S.C. § 2255 petition, so that he could file a Fourth

Amendment claim under the Supreme Court’s decision in Carpenter v. United

States, 138 S. Ct. 2206 (2018). We affirm the district court’s denial of Moore’s

motion for discovery.

      Moore was convicted of conspiracy to distribute cocaine in 2012 and was

sentenced to a 120-month prison term. We affirmed Moore’s conviction on

appeal. See generally United States v. Moore, 535 F. App’x 795 (11th Cir. 2013).

Since then, Moore has repeatedly attempted to collaterally attack his conviction.

He filed a motion under 28 U.S.C. § 2255 in 2014, alleging that law enforcement

violated his Fourth Amendment rights by conducting a warrantless search of his

cell phone, relying on the Supreme Court’s then-recent decision in Riley v.

California, 573 U.S. 373 (2014). The district court denied Moore’s petition,

determining that his claim was procedurally barred because he did not raise it on

direct appeal and denying a certificate of appealability. We denied a COA for the

same reason.




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      Following the denial of his 2014 petition, Moore has filed three pro se

discovery motions. All three motions were filed with the explicit purpose of

gathering evidence to support a Carpenter-based Fourth Amendment claim that

would enable him to file a second or successive section 2255 petition. The district

court, however, denied each of Moore’s three motions sua sponte without

providing any explanation.

      In Moore’s third motion—the denial of which is before us—Moore

requested that the government provide: (1) all reports prepared by law enforcement

for the confidential informant in his case; (2) all warrants used during the

government’s investigation; (3) all discovery related to his cell phone, including

his physical location; (4) all subpoenaed or court-ordered courts for his phone; and

(5) all government trial exhibits related to subpoenaed phone tolls from his phone.

On appeal, he argues that the district court erred in denying his motion because the

evidence he requested was needed to make a prima facie showing for leave from

this Court to file a successive section 2255 motion to assert his Carpenter claim.

He claims that with the discovery material, “there is an overwhelming reasonable

probability that the jury verdict would have been not guilty.” The government, in

turn, responds that the district court did not have jurisdiction because this Court

had not granted Moore leave to file a successive section 2255 petition and,

therefore, there was no live case before the district court. It also argues that, even


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if the district court had jurisdiction, Moore did not establish good cause for

discovery.

      We review de novo questions concerning subject matter jurisdiction of the

district court, United States v. Grimon, 923 F.3d 1302, 1305 (11th Cir.), and

review a district court’s denial of a post-conviction discovery motion for abuse of

discretion, United States v. Espinosa–Hernandez, 918 F.2d 911, 913 (11th Cir.

1990). We construe pleadings filed by pro se parties liberally. See Sanders v.

United States, 113 F.3d 184, 187 (11th Cir. 1997).

      Collateral attacks on the legality of a federal sentence typically must be

brought under a section 2255 motion. Darby v. Hawk-Sawyer, 405 F.3d 942,

944 (11th Cir. 2005). A federal prisoner who fails to raise a claim on direct appeal

may be procedurally barred from raising the claim in a section 2255 motion, absent

a showing of cause that excuses the default and prejudice, or actual innocence.

Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004). A federal prisoner

who wishes to file a successive section 2255 motion is required to move the court

of appeals for an order authorizing the district court to consider such a motion. See

28 U.S.C. § 2255(h), cross-referencing 28 U.S.C. § 2244. Absent prior

authorization from a court of appeals, a district court lacks jurisdiction to consider

a successive section 2255 motion. United States v. Holt, 417 F.3d 1172,

1175 (11th Cir. 2005).


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       In Carpenter, the Supreme Court held that an individual maintains a

legitimate expectation of privacy in his physical movements captured by wireless

carriers—which collect a user’s location from a time-stamped record known as

cell-site location information—and, therefore, the government needs a warrant

supported by probable cause to access that information. See 138 S. Ct. at 2211,

2217, 2219, 2220–21, 2223.

       We have not had the occasion to address the specific issue of whether a

district court has jurisdiction over a federal prisoner’s post-conviction discovery

motion in anticipation of his filing a section 2255 motion or a successive section

2255 motion. 1 But we do not need to resolve that thorny question to address the

merits of Moore’s appeal. Even assuming, arguendo, that the district court had

jurisdiction to decide Moore’s triad of discovery motions, we cannot conclude that

it abused its discretion in denying Moore’s third motion. The Supreme Court’s

opinion in Carpenter concerned a person’s expectation of privacy in his physical

movements gathered by wireless carriers. That holding does not affect Moore’s

conviction. None of the trial evidence that Moore references specifically shows


1
  We note that, in United States v. Felix, an unpublished opinion from 2008, we affirmed the denial
of a petitioner’s discovery motion, which was filed after he was convicted, sentenced, and his first
section 2255 motion denied. 298 F. App’x 905, 906 (11th Cir. 2008). In support of its conclusion,
the Felix panel stated that the district court lacked jurisdiction to provide relief under Federal Rule
of Criminal Procedure 16, because nothing in that rule authorized discovery after a criminal case
concluded, and to the extent that Felix’s motion sought relief from his convictions and sentences,
it was due to be denied because this Court had not authorized a successive section 2255 motion.
Id.
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that law enforcement obtained, or that the government relied on or used, records of

his physical location that his wireless carrier gathered. Instead, the evidence

introduced in support of the government’s case at trial served as direct proof that

Moore had attempted to acquire cocaine with the intent to subsequently distribute

it—e.g., a recorded phone call between Moore and a confidential informant and a

videotape of the attempted exchange of drugs between Moore and the informant.

That evidence was introduced at trial as direct proof that Moore committed the

crime. No indirect proof based on cell-tower data of Moore’s physical location

was introduced. Accordingly, we conclude that the district court did not abuse its

discretion in granting Moore’s third discovery motion.

      Moreover, even if the evidence was the sort implicated by the Supreme

Court’s holding in Carpenter, Moore has procedurally defaulted his Carpenter claim

because, like his Riley claim from his first section 2255 petition, he failed to raise it

on direct appeal and cannot demonstrate cause for his failure to do so, or prejudice.

See Darby, 405 F.3d at 944.

      Accordingly, we affirm.

      AFFIRMED.




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