           Case: 15-14978    Date Filed: 06/09/2016   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14978
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket Nos. 1:15-cv-22992-KMM,

                            2:09-cr-14016-KMM-6



DEWAYNE BERNARD MITCHELL, JR.,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

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

                               (June 9, 2016)

Before HULL, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Dewayne Bernard Mitchell, Jr., a federal prisoner proceeding pro se, appeals

the district court’s dismissal of his 28 U.S.C. § 2255 motion for lack of

jurisdiction. After review, we affirm. 1

       In 2010, Mitchell filed his first § 2255 motion, arguing, inter alia, that his

counsel was ineffective for failing to challenge his career offender classification

under the Sentencing Guidelines. In denying Mitchell’s § 2255 motion, the district

court acknowledged Mitchell’s valid collateral appeal waiver in his plea

agreement, but did not rely on that appeal waiver. Instead, the district court ruled

on the merits of Mitchell’s claims.

       In 2015, Mitchell filed the instant § 2255 motion, again arguing ineffective

assistance of counsel for failing to challenge his career offender classification. The

district court dismissed this § 2255 motion as an unauthorized successive § 2255

motion.

       On appeal, Mitchell asserts that the district court dismissed his first § 2255

motion in 2010 due to his appeal waiver in his plea agreement and that afterward

his appeal waiver was “removed upon instructions of the [United States] Attorney

General.” Mitchell argues that his current § 2255 motion was not second or

successive because, pursuant to § 2255(f)(2), his claim did not become ripe until

after the removal of the appeal waiver as an impediment.

       1
        We review de novo the district court’s dismissal of a § 2255 motion as second or
successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
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      Pursuant to § 2255, a federal prisoner claiming the right to be released on the

grounds that his sentence was imposed in violation of federal law or the

Constitution, the court lacked jurisdiction to impose sentence, his sentence is

beyond the maximum authorized by law, or his sentence is otherwise subject to

collateral attack, “may move the court which imposed the sentence to vacate, set

aside or correct the sentence.” 28 U.S.C. § 2255(a). If the district court

determines that relief is warranted, it must vacate and set aside the judgment and

discharge or resentence the prisoner, or grant a new trial or correct the sentence, if

appropriate. Id. § 2255(b).

      The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

provides for a one-year statute of limitations for filing a § 2255 motion, which

begins to run following the latest of four possible events:

      (1)    the date on which the judgment of conviction becomes final;

      (2) the date on which the impediment to making a [§ 2255] motion
      created by governmental action in violation of the Constitution or
      laws of the United States is removed, if the movant was prevented
      from making a motion by such governmental action;

      (3) the date on which the right asserted was initially recognized by
      the Supreme Court, if that right has been newly recognized by the
      Supreme Court and made retroactively applicable to cases on
      collateral review; or

      (4) the date on which the facts supporting the claim or claims
      presented could have been discovered through the exercise of due
      diligence.


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Id. § 2255(f).

      Before a prisoner may file a second or successive § 2255 motion, the

prisoner must first obtain an order from this Court authorizing the district court to

consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). Without this Court’s

authorization, the district court lacks jurisdiction to consider a second or successive

§ 2255 motion. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).

      A numerically second § 2255 motion may or may not be “second or

successive” under the AEDPA. See Stewart v. United States, 646 F.3d 856, 859-

60 (11th Cir. 2011); see also Slack v. McDaniel, 529 U.S. 473, 486, 120 S. Ct.

1595, 1605 (2000) (explaining that the phrase “second or successive,” as used in

the AEDPA, is a term of art). In Stewart, after a prisoner filed his first § 2255

motion, he successfully challenged in state court the state convictions that were

predicate convictions for his career offender sentence. See Stewart, 646 F.3d at

857-58. One month after his state convictions were vacated, the prisoner filed a

second-in-time § 2255 motion, and requested vacatur of the career offender

enhancement. Id. at 858. The district court dismissed the second-in-time § 2255

motion as successive. Id. In reversing, we explained that the basis for the second-

in-time § 2255 motion—vacatur of the predicate state convictions—did not exist at

the time of the prisoner’s first § 2255 motion, and thus the numerically second

motion was not “second or successive” within the meaning of AEDPA. Id. at 863-


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65. In Boyd v. United States, we applied Stewart and determined that a prisoner’s

previously dismissed § 2255 motions did not render a later § 2255 motion

“successive” because the prisoner’s claim did not exist before his initial § 2255

proceeding concluded and the rulings on subsequent motions were not on the

merits. 754 F.3d 1298, 1301-02 (11th Cir. 2014) (stating that “second or

successive status only attaches to a judgment on the merits”).

      Here, whether Mitchell’s current § 2255 motion would have been timely

filed under § 2255(f)(2) if it were his first § 2255 motion has no bearing on

whether the present motion is successive within the meaning of the AEDPA. See

28 U.S.C. § 2255(f). The district court did not err in dismissing Mitchell’s motion

to vacate as an unauthorized successive § 2255 motion because, unlike in Stewart

and Boyd, not only did Mitchell’s ineffective assistance claim exist when he filed

his first § 2255 motion in 2010, but he asserted essentially the same ineffective

assistance argument in his first § 2255 motion that he asserts in his current § 2255

motion. In his initial § 2255 proceeding, the district court clearly addressed the

merits of Mitchell’s ineffective assistance claim. Contrary to Mitchell’s claim, the

district court did not rely on the collateral appeal waiver in Mitchell’s plea

agreement to deny his first § 2255 motion. Therefore, the district court correctly

determined that Mitchell’s first § 2255 motion was adjudicated on the merits, and

as such, the current § 2255 motion is a “second or successive” motion within the


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meaning of the ADEPA. See Boyd, 754 F.3d at 1302. Accordingly, because

Mitchell did not obtain our authorization before filing his successive § 2255

motion, the district court properly concluded that it lacked jurisdiction over the

motion and dismissed it. See Holt, 417 F.3d at 1175. 2

       AFFIRMED.




       2
        On appeal, Mitchell does not argue that the district court should have construed his
§ 2255 motion as a § 2241 petition brought pursuant to § 2255’s savings clause. In any event,
the Southern District of Florida would have lacked jurisdiction to consider a § 2241 petition from
Mitchell, as he is incarcerated in the Middle District of Florida. See 28 U.S.C. § 2241(a);
Fernandez v. United States, 941 F.2d 1488, 1495 (11th Cir. 1991).
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