                                                             [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                      JANUARY 17, 2012
                                            No. 11-12216
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                                D.C. Docket Nos. 1:10-cv-20260-UU,
                                       0:02-cr-60200-UU-1

VICTOR G. BAXTER,

llllllllllllllllllllllllllllllllllllllll                             Petitioner-Appellant,

                                               versus

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                           Respondent-Appellee.
                                      ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________
                                       (January 17, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.

PER CURIAM:

         Victor Baxter, a federal prisoner, appeals pro se the district court’s denial of

his motion to release a hold on property, filed under Fed.R.Crim.P. 41(g), and his
motion to disqualify the district judge, filed pursuant to 28 U.S.C. § 455. For the

reasons set forth below, we affirm.

                                               I.

       In 2002, a federal grand jury issued a seven-count superseding indictment

against Baxter, charging him with several drug and firearm offenses. The

indictment contained a forfeiture count, wherein the government sought forfeiture

of cash and other property under 21 U.S.C. § 853(a)(1), (a)(2). In September

2003, a jury convicted Baxter on two counts (distributing and possessing with

intent to distribute illegal drugs) and acquitted him of the other five counts. In

October 2003, the forfeiture count against Baxter was dismissed, and the district

court ordered the government to return the property that had been seized from him.

       In March 2011, after Baxter’s direct criminal proceedings and his 28 U.S.C.

§ 2255 proceedings ended, he filed a motion to release a hold on property,

pursuant to Fed.R.Crim.P. 41(e).1 Baxter alleged that, in 2003, after the court had

ordered the return of his seized property, the government placed a “hold” on his

Ford F-150 pick-up truck in violation of the court’s order, and the hold was still

pending, causing distress to himself and his family.



       1
         Rule 41(e) is now codified as Rule 41(g). See United States v. Howell, 425 F.3d 971, 976
n.3 (11th Cir. 2005).

                                               2
      The district court issued an order denying and dismissing Baxter’s motion.

The court stated that the motion was unclear, that it was difficult to determine to

which docket (among several) the motion belonged, and that the court was “not

convinced” that it had jurisdiction to consider the motion on the merits, even if

Baxter’s allegations were true.

      Subsequently, Baxter moved to disqualify the district court judge, pursuant

to 28 U.S.C. § 455. Baxter’s sole reason for disqualification was the judge’s order

denying his motion to release the hold on property. He contended, essentially, that

the judge’s statement regarding the lack of jurisdiction constituted evidence of

bias. The district court denied Baxter’s motion on the merits.

                                          II.

      We review de novo questions concerning a district court’s subject matter

jurisdiction and may affirm “for any reason supported by the record, even if not

relied upon by the district court.” United States v. Al-Arian, 514 F.3d 1184, 1189

(11th Cir. 2008) (quotation omitted). Rule 41(g) provides, in part: “A person

aggrieved by an unlawful search and seizure of property or by the deprivation of

property may move for the property’s return.” Fed.R.Crim.P. 41(g). When an

owner “invokes Rule 41(g) after the close of all criminal proceedings, the court

treats the motion for return of property as a civil action in equity.” United States

                                          3
v. Machado, 465 F.3d 1301, 1307 (11th Cir. 2006) (quotation omitted), overruled

on other grounds, as recognized in United States v. Lopez, 562 F.3d 1309,

1311-13 (11th Cir. 2009). Consequently, such Rule 41(g) actions are subject to

the six-year statute of limitations found in 28 U.S.C. § 2401(a). Id.; see 28 U.S.C.

§ 2401(a) (“[E]very civil action commenced against the United States shall be

barred unless the complaint is filed within six years after the right of action first

accrues.”).

      In this case, the forfeiture allegations against Baxter were dismissed in

October 2003, and he asserted in his Rule 41(g) motion that the government

illegally placed a hold on his vehicle in 2003. Yet he waited more than six years,

until 2011, before filing the Rule 41(g) motion, rendering the motion untimely.

See 28 U.S.C. § 2401(a); Machado, 465 F.3d at 1307 (stating that the § 2401(a)

limitations period began to run from the final order of forfeiture). While the

government had not relied on the statute of limitations as a defense, the limitations

period in § 2401(a) is jurisdictional and cannot be waived. See Ctr. for Biological

Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir. 2006) (“Unlike an ordinary

statute of limitations, § 2401(a) is a jurisdictional condition attached to the

government’s waiver of sovereign immunity.” (quotation omitted)). As a result,

the district court had no jurisdiction to consider Baxter’s Rule 41(g) motion and

                                           4
correctly dismissed it for lack thereof. See Machado, 465 F.3d at 1307 (stating

that the defendant’s Rule 41(g) motion, filed after the six-year limitations period

expired, “had been rendered legally unpalatable by the passage of time.”).

      Because the district court had no jurisdiction to hear Baxter’s motion to

release the hold on property, there were no proceedings pending before the court

from which the judge could have disqualified herself. Accordingly, the court also

lacked jurisdiction over Baxter’s motion for disqualification. See United States v.

Elso, 571 F.3d 1163, 1165-66 (11th Cir. 2009) (holding that the district court

lacked jurisdiction over a motion for recusal because no proceedings were pending

before the court at the time the recusal motion was filed), cert. denied, 130 S.Ct.

2075 (2010). Therefore, we affirm.

      AFFIRMED.




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