           Case: 16-13932   Date Filed: 06/30/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13932
                         Non-Argument Calendar
                       ________________________

       D.C. Docket No. 1:15-cv-24177-CMA; 1:12-cr-20291-CMA-10



ALINA FEAS,

                                                          Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.

                       ________________________

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

                              (June 30, 2017)

Before MARCUS, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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       Alina Feas, a federal prisoner represented by counsel, appeals the district

court’s denial of her 28 U.S.C. § 2255 motion to vacate. The district court denied

the motion because: (1) it was an unauthorized second or successive application;

(2) it was barred by the one-year statute of limitations of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”); and (3) Feas did not show a

reasonable probability that she would not have entered a guilty plea but for the

alleged Rule 11 error. On appeal, Feas argues that the instant motion is not second

or successive because the factual basis for her claim did not exist at the time she

filed her first § 2255 motion. Citing United States v. Pinto, 838 F.2d 1566, 1569

(11th Cir. 1988), she argues that the prejudice required to succeed on her Rule

11(b)(1)(A) claim did not occur until she was actually threatened with a perjury

prosecution, which threat did not occur until after the resolution of her first § 2255

motion. She also argues the merits of her Rule 11(b)(1)(A) claim. 1

       We review de novo the dismissal of a § 2255 motion as second or

successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).

       Pursuant to § 2255, a prisoner in federal custody may move the court that

imposed his sentence to vacate, set aside, or correct the sentence if it was imposed


       1
         Because, as discussed below, the district court correctly dismissed Feas’s § 2255 motion
as second or successive, the court lacked jurisdiction to consider the merits of her Rule 11 claim.
Accordingly, we need not reach her arguments on that issue, or whether that issue is properly
raised on appeal in the absence of a COA. See Murray v. United States, 145 F.3d 1249, 1250-51
(11th Cir. 1998) (holding that the scope of appellate review in § 2255 proceedings is limited to
the specific issues indicated in the COA).
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in violation of federal constitutional or statutory law, was imposed without proper

jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject

to collateral attack. 28 U.S.C. § 2255(a). However, when a prisoner previously

has filed a § 2255 motion to vacate, she must apply for and receive permission

from this Court before filing a successive § 2255 motion. Id. § 2244(b)(3),

2255(h). Without authorization, the district court lacks jurisdiction to consider a

second or successive § 2255 motion. Farris v. United States, 333 F.3d 1211, 1216

(11th Cir. 2003).

      We have recognized that “the phrase ‘second or successive’ is not

self-defining and does not refer to all habeas applications filed second or

successively in time.” Stewart v. United States, 646 F.3d 856, 863 (11th Cir. 2011)

(citing Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007)). Specifically, there

are “a small subset of unavailable claims that must not be categorized as

successive.” Id. However, those small subset of claims involve previously

unavailable “facts,” such as the subsequent vacatur of a prior state conviction after

the initial federal habeas proceedings concluded. See id. at 863-65.

      In Pinto, a defendant appealed his conviction based on the district court’s

denial of a motion to withdraw his guilty plea. Pinto, 838 F.2d at 1568. The

defendant claimed, in part, that he was not warned at the plea hearing that his

statements could be used against him in a prosecution for perjury. Id. at 1569. We


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stated that the defendant’s claim merited “little discussion,” because “a failure to

warn under Fed. R. Crim. P. 11(c)(5)[2] is not a sufficient basis for attacking a plea

absent a threat of prosecution for perjury or some other showing of prejudice,” and

the defendant had made no such showing. Id.

      The district court correctly found that Feas’s motion was an unauthorized

second or successive § 2255 motion. Feas filed a previous § 2255 motion that the

district court denied on the merits on August 12, 2014. In the instant motion, she

makes a claim that was available to her at the time of the first motion. Feas’s Rule

11 claim ripened on the day she pled guilty, May 7, 2013. While Feas argues that,

because Pinto requires that a defendant making a Rule 1 1(b)(1)(A) claim show a

threat of prosecution for perjury or make some other showing of prejudice, and

because AUSA Medina did not threaten to prosecute her for perjury until

November 17, 2014, she did not have a ripe claim until that day,this argument fails

for two reasons. First, although Pinto states that a defendant making a Rule 11

failure-to-warn claim on direct appeal must show either a threat of prosecution for

perjury or make some other showing of prejudice, Pinto does not address the issue

of her case on appeal, namely, whether a newly made threat of prosecution for

perjury qualifies as a “new fact” that would disqualify a second-in-time § 2255




      2
          Rule 11(c)(5) has since been recodified as Rule 11(b)(1)(A).
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motion from being categorized as “second or successive” under the AEDPA. See

28 U.S.C. §§ 2244(b)(3), 2255(h).

      Second, Feas’s argument relying on Pinto fails because this Court lists an

alternative option in the same sentence, stating that a defendant raising a Rule 11

claim may make “some other showing of prejudice.” Pinto, 838 F.2d at 1569.

Feas’s claim is, in part, based on “some other showing of prejudice,” in that she

claims that she would not have pled guilty had she been properly advised that

statements made during the change-of-plea hearing could be later used against her

in a perjury prosecution. Although Feas characterizes her Rule 11 claim as being

based on both the district court’s initial failure to warn and AUSA Medina’s later

threat of a perjury prosecution, a Rule 11 claim already was available to her at the

time she filed her first § 2255 motion based on her claim that she would not have

pled guilty had she been properly advised that statements made during the change-

of-plea hearing could be later used against her in a perjury prosecution. That Feas

was later threatened with a perjury prosecution did not change the fact that the

alleged defect at the heart of her Rule 11 (b)(1)(A) claim occurred on the day of

her plea hearing. As of that day--May 7, 2013--Feas had a cognizable Rule 11

claim based on her assertion that she would not have pled guilty had she been

properly warned by the district court.




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      Therefore, the essential facts underlying her claim were available at the time

she filed her first § 2255 motion, and she failed to raise this claim in her first

motion. Further, Feas has not demonstrated that her claim falls into the small

subset of claims that should not be categorized as successive. Stewart, 646 F.3d at

863-63. Because the instant motion was, therefore, a second or successive § 2255

motion, the district court did not have subject matter jurisdiction to consider

the motion or its merits. See 28 U.S.C. § 2244(b)(3), 2255(h); Farris, 333 F.3d at

1216. Accordingly, we vacate and remand with instructions for the district court to

dismiss the petition for lack of jurisdiction.

      VACATED AND REMANDED




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