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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12051
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:17-cv-00542-RH-GRJ



EDWARD DANE JEFFUS,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

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

                            (December 19, 2018)

Before MARTIN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:
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       Edward Dane Jeffus, proceeding pro se, appeals the district court’s dismissal

of his petition for a writ of habeas corpus, brought under 28 U.S.C. § 2254, as well

as its denial of his motion to alter or amend the judgment brought under Federal

Rule of Civil Procedure 59(e). Jeffus contends the district court erred in

concluding it lacked jurisdiction over his § 2254 petition on the basis that the

petition was impermissibly second or successive. In addition, he contends that,

even if his petition were impermissibly second or successive, the district court had

jurisdiction over his third claim under 28 U.S.C. §§ 2241 and 2255(e). Finally, he

contends the district court abused its discretion by denying his Rule 59(e) motion

for the same reasons it erred in dismissing his § 2254 petition. After review, we

affirm.

                                       I. DISCUSSION

A. Second or Successive1

       Before a prisoner files a second or successive habeas petition, he must first

obtain an order from the court of appeals authorizing the district court to consider

the petition. 28 U.S.C. § 2244(b)(3)(A). Without such authorization, the district

court lacks jurisdiction. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir.

2003). A dismissal of a § 2254 petition as untimely constitutes a dismissal with


       1
          We review de novo whether a petition for writ of habeas corpus is successive, such that
a district court lacks jurisdiction to consider it without prior authorization. Patterson v. Sec’y,
Fla. Dep’t of Corr., 849 F.3d 1321, 1324 (11th Cir. 2017) (en banc).
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prejudice on the merits for purposes of restricting a second or successive § 2254

petition. See, e.g., Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353, 1359

(11th Cir. 2007) (denying a petitioner’s successive petition after noting the

petitioner’s first habeas action was dismissed “with prejudice” for being untimely).

       Jeffus, who has had two previous § 2254 petitions dismissed (the latter of

which was dismissed with prejudice as untimely), contends the district court erred

in dismissing his instant § 2254 petition as second or successive. First, he

contends his petition was not second or successive because each of his previous

petitions was erroneously dismissed. This argument lacks merit, and it is based on

premises that have been rejected repeatedly by both the district court and this

Court.2 Jeffus did not receive an order from this Court authorizing review of any

second or successive petition. Thus, to the extent his instant § 2254 petition was

successive, the district court lacked jurisdiction to consider it.

       Jeffus nevertheless contends his instant § 2254 petition was not successive

because the claims raised in it were not yet ripe at the time he filed his two

previous petitions. As we have explained, “the phrase ‘second or successive’ is not


       2
          See, e.g., Jeffus v. Ray, 377 F. App’x 963 (11th Cir. 2010) (holding that the district
court did not abuse its discretion by denying relief under Rule 60(b) as to its dismissal of Jeffus’s
first § 2254 petition as unexhausted), cert. denied, 562 U.S. 969 (2010); Jeffus v. Sivley, No. 98-
cv-00751, at Docs. 41, 43, 49–51, 55, 60, 65 (M.D. Fla.) (denying relief from dismissal of
second § 2254 petition despite arguments that the petition was timely); Jeffus v. Ray, No. 97-cv-
00448, at Docs. 55, 74, 76, 82 (M.D. Fla.) (denying relief from dismissal of initial § 2254
petition despite arguments that the initial petition should not have been dismissed as
unexhausted).
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self-defining and does not refer to all habeas applications filed second or

successively in time.” Stewart v. United States, 646 F.3d 856, 859 (11th Cir.

2011). Indeed, we have recognized a small subset of claims that may be raised in a

subsequent petition without being categorized as successive. Id. at 863. Among

that small subset are claims that—because of a nonexistent factual predicate—were

not yet ripe when the original petition was filed. See id. at 863–65. For example, a

claim challenging a sentence enhanced by a prior conviction that is subsequently

vacated does not exist until the prior conviction is, in fact, vacated. See id.

      In contrast, a claim based on a subsequent change in the law will be

considered second or successive as long as the factual predicate for the claim

existed at the time of the initial petition. Such a claim may nevertheless be

pursued, but under the Antiterrorism and Effective Death Penalty Act (AEDPA),

the claim must be based on a new rule of constitutional law made retroactive to

cases on collateral review by the U.S. Supreme Court. 28 U.S.C. § 2244(b)(2)(A).

Moreover, permission to raise such a claim must first be obtained from the court of

appeals. Id. § 2244(b)(3)(A).

      Jeffus contends Claims 1 and 3 were not ripe when his previous petitions

were filed, because he filed the petitions before he was transferred to state custody.

This contention is meritless. The factual predicates for both claims—that his state

sentence was enhanced by a prior federal conviction that was unconstitutionally


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obtained and that his state sentence was otherwise obtained or sustained in

violation of the Constitution—existed (at the latest) when his state conviction and

sentence became final. Being in state custody was not a factual predicate

necessary for either challenge.

      Likewise, Jeffus’s contention that his claims were not ripe because the PSI

Report was not made part of the record until 2015 lacks merit. The factual

predicate for his state sentence necessarily existed at the time of his sentencing. To

the extent Jeffus contends he could not with reasonable diligence ascertain the

factual predicate for his state sentence until 2015, his claim would still be

successive. See id. § 2244(b)(2)(B)(i).

      Jeffus further contends that Claim 1 was not yet ripe when his previous

petitions were filed, because the Supreme Court had not yet issued its opinion in

Lackawanna Cty. Dist. Att’y v. Coss, 532 U.S. 394 (2001). Jeffus conflates claims

based on previously non-existent factual predicates, which might not be

successive, with claims based on previously non-existent legal precedents, which

are both successive and specifically addressed by AEDPA. See id.

§ 2244(b)(2)(A). The district court did not err in determining that Claims 1 and 3

were successive.

      Claim 2, which alleges an unconstitutional deprivation of access to the

courts, is based on events that occurred both before and after Jeffus filed his


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previous § 2254 petitions. Specifically, Jeffus challenges certain aspects of his

convictions, sentences, and post-conviction habeas proceedings. To the extent

Claim 2 was aimed at issues that arose before his convictions and sentences

became final, Claim 2 is successive for the same reasons discussed above with

respect to Claims 1 and 3. To the extent his claims are instead based on alleged

defects in subsequent habeas proceedings, they are not cognizable under § 2254

because they do not undermine the legality of Jeffus’s detention or conviction by

the state. See Alston v. Dep’t of Corr., 610 F.3d 1318, 1325 (11th Cir. 2010)

(“Federal habeas relief is available to remedy defects in a defendant’s conviction

and sentence, but an alleged defect in a collateral proceeding does not state a basis

for habeas relief.” (quotation omitted)); Carroll v. Sec’y, Dep’t of Corr., 574 F.3d

1354, 1365 (11th Cir. 2009) (“This Court has repeatedly held defects in state

collateral proceedings do not provide a basis for habeas relief.”), cert. denied, 558

U.S. 995 (2009). Accordingly, the district court did not err in concluding it lacked

jurisdiction to review Jeffus’s petition under § 2254.

B. Jurisdiction under §§ 2241 and 2255(e)3

       Jeffus next contends that, even if his claims are impermissibly successive,

the district court had jurisdiction over Claim 3 to the extent it challenged the


       3
         We review de novo whether a prisoner may bring a § 2241 petition under the savings
clause of § 2255(e). McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081
(11th Cir. 2017) (en banc), cert. denied sub nom McCarthan v. Collins, 138 S. Ct. 502 (2017).
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execution of his sentence. This argument fails for at least two reasons. First,

Jeffus is not eligible for relief under § 2255(e) because the instant § 2254 petition

was filed after both his federal sentence had expired and he was released from

federal custody. See 28 U.S.C. § 2255(a) (stating that § 2255 applies only to

prisoners “in custody” under a sentence from a federal court); Maleng v. Cook, 490

U.S. 488, 492 (1989) (“[O]nce the sentence imposed for a conviction has

completely expired, the collateral consequences of that conviction are not

themselves sufficient to render an individual ‘in custody’ for the purposes of a

habeas attack upon it.”); McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851

F.3d 1076, 1092–93 (11th Cir. 2017) (en banc) (holding that a federal prisoner

may proceed under § 2241 via § 2255(e) only when: (1) challenging the execution

of his sentence; (2) the sentencing court is unavailable; or (3) practical

considerations might prevent him from filing a § 2255 motion), cert. denied sub

nom McCarthan v. Collins, 138 S. Ct. 502 (2017).

      Second, even if § 2255(e) relief were available to a state prisoner whose

federal sentence had fully expired, Jeffus would be ineligible for relief because he

challenges the imposition—rather than the execution—of his sentence. Jeffus

contends the state violated the constitution by imposing a sentence that ran

consecutive to his federal sentence. He does not complain about the manner in

which the state went about executing the sentence once imposed. See McCarthan,


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851 F.3d at 1092–93 (“A prisoner sentenced by a federal court, for example, may

file a petition for a writ of habeas corpus to challenge the execution of his

sentence, such as the deprivation of good-time credits or parole determinations.”).

The district court did not have jurisdiction to consider Jeffus’s § 2254 petition

under §§ 2241 and 2255(e).

C. Rule 59(e) 4

       Finally, Jeffus contends the district court abused its discretion by denying

his post-dismissal motion, brought under Federal Rule of Civil Procedure 59(e),

seeking to alter or amend the judgment of dismissal. A Rule 59 motion may only

be granted on the basis of newly-discovered evidence or manifest errors of law or

fact. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). “A Rule 59(e) motion

cannot be used to relitigate old matters, raise argument or present evidence that

could have been raised prior to the entry of judgment.” Id. (alterations removed

and quotation omitted). Although Jeffus cast his arguments as pointing out

manifest errors of law and fact, he did nothing more than seek to relitigate the

issues decided against him through arguments he either made or could have made

before entry of judgment. Id. The district court did not abuse its discretion by

denying Jeffus’s Rule 59(e) motion.



       4
        We review the denial of a Rule 59(e) motion for an abuse of discretion. Arthur v. King,
500 F.3d 1335, 1343 (11th Cir. 2007).
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                                II. CONCLUSION

      The district court correctly determined it lacked jurisdiction over Jeffus’s

§ 2254 petition, and it did not abuse its discretion by denying Jeffus’s Rule 59(e)

motion seeking to alter or amend its judgment of dismissal.


      AFFIRMED.




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