                Case: 19-12731     Date Filed: 02/11/2020   Page: 1 of 4


                                                               [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 19-12731
                               Non-Argument Calendar
                             ________________________

            D.C. Docket Nos. 0:19-cv-61587-WPD; 0:98-cr-06128-WJZ-1



ROBERT MARVIN HARRIS,

                                                    Petitioner - Appellant,

versus

UNITED STATES OF AMERICA,

                                                    Respondent - Appellee.

                             ________________________

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

                                  (February 11, 2020)

Before GRANT, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

         Petitioner/Appellant Robert Marvin Harris appeals the district court’s order
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dismissing his pro se motion to modify or vacate his life sentence for his

conviction pursuant to 21 U.S.C. § 841. Harris contends that the district court had

jurisdiction over his motion and that he is entitled to relief because of the First Step

amendments that made retroactive the amendments of the Fair Sentencing Act to §

841 cases that were final before August 2010. The government responds with a

motion for summary affirmance and a motion to stay the briefing schedule. After

reviewing the record, we grant the government’s motion for summary affirmance

and deny its motion to stay the briefing schedule as moot.

       Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or 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). 1

       “In an appeal challenging a [28 U.S.C.] § 2255 ruling, we review legal

issues de novo and factual findings for clear error.” Murphy v. United States, 634

F.3d 1303, 1306 (11th Cir. 2011). We will also review de novo issues concerning

the district court’s subject matter jurisdiction. United States v. Al-Arian, 514 F.3d

1
  See Bonner v. City of Prichard, Ala, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (adopting
as binding precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981).
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1184, 1189 (11th Cir. 2008). We deem arguments not raised in a party’s initial

appellate brief to be abandoned. See United States v. Levy, 379 F.3d 1241, 1243

(11th Cir. 2004).

      “Section 2255 allows a federal prisoner to seek post-conviction relief from a

sentence imposed in violation of the Constitution or laws of the United States or if

it is otherwise subject to collateral attack.” Murphy, 634 F.3d at 1306. Thus, to

collaterally attack the validity of a federal sentence, a defendant must typically

proceed under § 2255. See Darby v. Hawk-Sawyer, 405 F.3d 942, 944–45 (11th

Cir. 2005). A federal prisoner who wishes to file a second or successive motion to

vacate, set aside, or correct sentence 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. “Without 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).

      In this case, the district court correctly determined that it lacked jurisdiction

over Harris’s § 2255 motion and dismissed the motion because it was a successive

motion that he filed without seeking and obtaining the proper authorization. See

id. Harris’s motion, although not labeled solely as one brought pursuant to § 2255,

sought relief from his sentence because Harris asserted that his sentence was

improperly enhanced by a prior Florida state court conviction and a prior federal

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conviction. Harris also claimed that his total sentence violated the Double

Jeopardy Clause. Hence, Harris was clearly attempting to challenge the validity of

his sentence, and such a challenge is properly brought under § 2255(a). See Darby,

405 F.3d at 944. However, because Harris had previously filed a § 2255 motion

that the court denied on the merits, the district court correctly determined that it

lacked jurisdiction over the present motion because Harris filed it without

obtaining the proper permission. 28 U.S.C. § 2255(h); Farris, 333 F.3d at 1216.

      Thus, we conclude from the record that there is no substantial question as to

the outcome of the case, and the government’s position is correct as a matter of

law. See Davis, 406 F.2d at 1162. Therefore, we do not need to address whether

Harris would otherwise be entitled to the relief that he requests. Accordingly, the

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

stay the briefing schedule is DENIED as moot. 2

      AFFIRMED and motion DENIED.




      2
          We also deny as moot Harris’s motion to expedite this appeal.
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