           Case: 19-11328   Date Filed: 10/22/2019   Page: 1 of 4


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11328
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 0:05-cr-60160-KAM-10


UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

MARCUS RIVERS,

                                                     Defendant - Appellant.

                       ________________________

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

                            (October 22, 2019)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Marcus Rivers is a federal prisoner serving a 180-month sentence for

conspiracy to possess with intent to distribute cocaine and a mixture and substance

containing a detectable amount of marijuana. Earlier this year, Rivers sought to set

aside his conviction on the grounds that the government’s chief witness committed

perjury during Rivers’s trial. Rivers, proceeding pro se, submitted his motion

under Federal Rule of Civil Procedure 60(d)(3), which permits the district court to

“set aside a judgment for fraud on the court.” The district court issued an order the

very next day dispatching with Rivers’s motion. The district court began its order

by stating that Rule 60 is a rule of civil procedure and so cannot provide for relief

from judgment in a criminal case. As a result, the district court construed Rivers’s

motion as seeking relief under 28 U.S.C. § 2255.1 Because Rivers had already

submitted one § 2255 motion attacking his conviction—in 2010, arguing

ineffective assistance of counsel—the district court held it was without jurisdiction

to consider his successive § 2255 motion because the court of appeals had not

permitted Rivers to make such a motion. See 28 U.S.C. § 2255(h). The district

court then denied Rivers’s § 2255 motion. Rivers appealed, still proceeding pro se.




       1
          Because Rivers’s motion seeks relief from the judgment of conviction and does not
point to a defect in the integrity of his federal habeas proceedings, this was the correct decision.
Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc), overruled on other
grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017)
(en banc); Galatolo v. United States, 394 F. App’x 670, 672 (11th Cir. 2010) (per curiam)
(unpublished). For this reason, we refer to Rivers’s motion as a “§ 2255 motion.”


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      In every case, we must ensure both that we have jurisdiction over an appeal

and that the district court had jurisdiction to consider the case on the merits. Boyd

v. Homes of Legend, Inc., 188 F.3d 1294, 1297–98 (11th Cir. 1999). If the district

court lacks jurisdiction to consider the case on the merits, we have jurisdiction on

appeal solely to correct the district court’s error. Id. at 1298.

      Although Rivers’s briefing mostly focuses on the merits of his motion, we

cannot address any of those points because we conclude the district court was

without jurisdiction to hear them. As the district court correctly noted, a federal

prisoner must receive permission from the court of appeals before he can file a

second or successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); United

States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam). But we have

held that this requirement is jurisdictional—that is, if the petitioner failed to seek

permission from the court of appeals for his second or successive § 2255 motion,

the district court lacks jurisdiction to consider the motion. In re Bradford, 830 F.3d

1273, 1277 (11th Cir. 2016) (per curiam); see Paige v. United States, 684 F. App’x

902, 903–04 (11th Cir. 2017) (per curiam) (unpublished).

      However, the district court here erred by denying—rather than dismissing—

Rivers’s § 2255 motion. See Paige, 684 F. App’x at 903–04. The government

concedes this is the case. We therefore vacate the district court’s order and remand

to the district court with instructions to dismiss the motion for lack of jurisdiction.



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VACATED AND REMANDED.




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