                                                       [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________
                                                                 FILED
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                               No. 05-12827
                                                             March 28, 2006
                           Non-Argument Calendar
                                                           THOMAS K. KAHN
                         ________________________              CLERK

                  D. C. Docket No. 99-00008-CR-001-WLS-6

VERT L. WASHINGTON,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                          Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                               (March 28, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      Vert Washington appeals the district court’s dismissal of his “motion to

compel specific performance of his plea agreement,” which the district court

construed as a second or successive motion to vacate, set aside, or correct his
sentence, pursuant to 28 U.S.C. § 2255. We granted a certificate of appealability

(“COA”) to consider the following issue: “Whether the district court erred by

construing appellant’s ‘Emergency Motion to Compel Specific Performance of His

Plea Agreement’ as an impermissibly successive motion to vacate, 28 U.S.C. §

2255?” After careful review, we affirm.

      This is Washington’s third appearance in this Court. On August 7, 2000,

pursuant to a written plea agreement, Washington pled guilty to one count of

possession with the intent to distribute cocaine and, inter alia, consented to the

following terms: (1) he agreed to cooperate fully with the government; (2) if the

cooperation was completed subsequent to sentencing, the government would

consider whether such cooperation qualified as substantial assistance, warranting

the filing of a motion for a reduction of sentence within one year of the imposition

of the sentence, pursuant to Rule 35(b); and (3) the determination as to whether

Washington provided substantial assistance rested solely with the government.

Moreover, Washington waived the right to appeal his sentence, directly or

collaterally, on any ground, with some exceptions not relevant to this appeal.

      Prior to sentencing, Washington moved to withdraw his guilty plea, arguing

that the government had breached the plea agreement by failing to provide

Washington with an opportunity to give “substantial assistance” information to the



                                          2
government.    After holding a hearing, the district court denied Washington’s

motion and found that Washington had not shown that the government breached

the plea agreement or that he actually provided substantial assistance. The district

court subsequently sentenced Washington to 84 months’ imprisonment.             We

dismissed his direct appeal “due to a valid appeal waiver.”       United States v.

Washington, No. 01-11284 (11th Cir. Oct. 25, 2001) (“Washington I”).

      One year after the imposition of his sentence, Washington, proceeding pro

se, filed a motion to vacate or modify his sentence, pursuant to 28 U.S.C. § 2255.

Washington alleged that his plea was involuntary because he had relied on the

government’s “substantial assistance” promise in the plea agreement, and the

government had not adhered to the promise. A magistrate judge recommended the

denial of Washington’s § 2255 motion, reasoning that, in connection with

Washington’s motion to withdraw his guilty plea, the district court had previously

considered and rejected the claims Washington again asserted in the context of a

§ 2255 motion.     Over Washington’s objections, the district court adopted the

magistrate judge’s recommendation and denied the motion.

      Washington then petitioned this Court for a COA on the denial of his § 2255

motion. We denied a COA based on Washington’s failure to make a substantial

showing of the denial of a constitutional right. We also found that Washington’s



                                         3
claim -- that the government breached the plea agreement -- had previously been

considered and rejected by the district court in its denial of Washington’s motion to

withdraw his guilty plea. We also noted that by our dismissal in Washington I, we

“necessarily rejected his challenges to the voluntariness of his plea.” Thus, we

concluded the claim was barred by the law of the case doctrine. See Washington v.

United States, No. 02-17036 (11th Cir. Apr. 4, 2003) (“Washington II”)

      Thereafter, Washington, again proceeding pro se, filed the instant

“emergency motion to compel specific performance of his plea agreement” in the

district court. As he had argued in his motion to withdraw his guilty plea and his

initial § 2255 motion, in the “emergency motion,” Washington again contended

that the government had not abided by the terms of the plea agreement because it

had not debriefed Washington concerning “substantial assistance” information.

      The magistrate judge recommended that Washington’s motion constituted a

second or successive § 2255 motion and, thus, the district court did not have

jurisdiction over it because Washington had not first obtained permission from this

Court to proceed. The district court agreed after finding that the motion “clearly

contemplat[ed] a review of the validity of his sentence in light of his allegation of

breach of the plea agreement” and constituted “still another, although different,

attempt to collaterally attack [Washington’s] conviction and sentence.”          The



                                         4
district court concluded, therefore, that it did not have jurisdiction because

Washington’s motion was actually a second or successive § 2255 motion, for

which Washington did not first obtain authorization from this Court to file. The

district   court   denied   Washington’s    “emergency    motion.”      This   appeal,

“Washington III,” followed.

       A prisoner may file a habeas petition requesting that the district court vacate,

set aside, or correct his sentence where (1) the sentence was imposed in violation

of law or the Constitution; (2) the sentencing court was without jurisdiction; (3) the

sentence imposed was beyond the statutory maximum; or (4) the sentence is

“otherwise subject to collateral attack.”      28 U.S.C. § 2255.     Under 28 U.S.C.

§ 2244, before an applicant may file a second or successive habeas petition, he

must apply, in the appropriate Court of Appeals, for “an order authorizing the

district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without

authorization from this Court, then, a district court lacks jurisdiction to consider a

successive § 2255 motion. See Farris v. United States, 333 F.3d 1211, 1216 (11th

Cir. 2003).

       In his motion to compel specific performance, Washington made the same

arguments he previously asserted, both in his motion to withdraw his guilty plea

and in his initial § 2255 motion. He also sought the same remedy -- a modification



                                           5
and reduction of his sentence -- in both his initial § 2255 motion and            the

“emergency motion.” In Washington’s two previous appearances in this Court, we

have rejected his claims.     In short, the “emergency motion” constituted the

functional equivalent of a successive § 2255 motion, which is subject to the

requirements of § 2244. See Fugate v. Dep’t of Corr., 301 F.3d 1287, 1288 (11th

Cir. 2002). Because Washington previously filed a § 2255 motion, but did not

seek our authorization for the instant motion, the motion was not properly before

the district court.

       Finally, following the lead of our sister circuits, we construe Washington’s

notice of appeal and appellate brief as an implied request for authorization to file a

second § 2255 petition. See, e.g., United States v. Winestock, 340 F.3d 200, 208

(4th Cir.) (treating motion for specific performance of plea agreement as

successive § 2255 motion and construing notice of appeal and appellate brief as

request for authorization to file second or successive § 2255 motion), cert. denied,

540 U.S. 995 (2003); United States v. Torres, 282 F.3d 1241, 1246 (10th Cir.

2002) (internal quotation marks and citation omitted) (treating petition for writ of

error coram nobis and writ of audita querela as successive § 2255 motions and

construing notice of appeal and appellate brief as “implied application under 28

U.S.C. § 2244(b)(3)(A) for leave to file second habeas petition in the district



                                          6
court”). As he did in Washington II, Washington argues the government breached

the plea agreement by not providing him with the opportunity to supply substantial

assistance.1 In Washington II, we denied a COA on this very issue, finding that it

was barred by the law of the case. We again conclude that the law of the case bars

Washington from proceeding on his claim in a successive § 2255 motion and again

deny a COA on this issue.

       Accordingly, we affirm the district court’s denial of Washington’s

“emergency motion” and, to the extent Washington is seeking leave to file a

successive § 2255 motion, we deny such leave.

       AFFIRMED.




       1
          Washington has made no assertion that the government’s failure to file a substantial
assistance motion was based on an unconstitutional motive or was not related to a legitimate
governmental interest. Cf. Wade v. United States, 504 U.S. 181, 185-86 (1992) (holding that
district courts have the authority to review the government’s refusal to file a substantial
assistance motion and grant a remedy if the defendant makes a threshold showing that the refusal
was based on an unconstitutional motive or was not related to a legitimate governmental
interest).

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