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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11328
Non-Argument Calendar
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D.C. Docket No. 0:05-cr-60160-KAM-10
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCUS RIVERS,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 22, 2019)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Marcus Rivers is a federal prisoner serving a 180-month sentence for
conspiracy to possess with intent to distribute cocaine and a mixture and substance
containing a detectable amount of marijuana. Earlier this year, Rivers sought to set
aside his conviction on the grounds that the government’s chief witness committed
perjury during Rivers’s trial. Rivers, proceeding pro se, submitted his motion
under Federal Rule of Civil Procedure 60(d)(3), which permits the district court to
“set aside a judgment for fraud on the court.” The district court issued an order the
very next day dispatching with Rivers’s motion. The district court began its order
by stating that Rule 60 is a rule of civil procedure and so cannot provide for relief
from judgment in a criminal case. As a result, the district court construed Rivers’s
motion as seeking relief under 28 U.S.C. § 2255.1 Because Rivers had already
submitted one § 2255 motion attacking his conviction—in 2010, arguing
ineffective assistance of counsel—the district court held it was without jurisdiction
to consider his successive § 2255 motion because the court of appeals had not
permitted Rivers to make such a motion. See 28 U.S.C. § 2255(h). The district
court then denied Rivers’s § 2255 motion. Rivers appealed, still proceeding pro se.
1
Because Rivers’s motion seeks relief from the judgment of conviction and does not
point to a defect in the integrity of his federal habeas proceedings, this was the correct decision.
Gilbert v. United States,
640 F.3d 1293, 1323 (11th Cir. 2011) (en banc), overruled on other
grounds by McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076 (11th Cir. 2017)
(en banc); Galatolo v. United States, 394 F. App’x 670, 672 (11th Cir. 2010) (per curiam)
(unpublished). For this reason, we refer to Rivers’s motion as a “§ 2255 motion.”
2
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In every case, we must ensure both that we have jurisdiction over an appeal
and that the district court had jurisdiction to consider the case on the merits. Boyd
v. Homes of Legend, Inc.,
188 F.3d 1294, 1297–98 (11th Cir. 1999). If the district
court lacks jurisdiction to consider the case on the merits, we have jurisdiction on
appeal solely to correct the district court’s error.
Id. at 1298.
Although Rivers’s briefing mostly focuses on the merits of his motion, we
cannot address any of those points because we conclude the district court was
without jurisdiction to hear them. As the district court correctly noted, a federal
prisoner must receive permission from the court of appeals before he can file a
second or successive § 2255 motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); United
States v. Holt,
417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam). But we have
held that this requirement is jurisdictional—that is, if the petitioner failed to seek
permission from the court of appeals for his second or successive § 2255 motion,
the district court lacks jurisdiction to consider the motion. In re Bradford,
830 F.3d
1273, 1277 (11th Cir. 2016) (per curiam); see Paige v. United States, 684 F. App’x
902, 903–04 (11th Cir. 2017) (per curiam) (unpublished).
However, the district court here erred by denying—rather than dismissing—
Rivers’s § 2255 motion. See Paige, 684 F. App’x at 903–04. The government
concedes this is the case. We therefore vacate the district court’s order and remand
to the district court with instructions to dismiss the motion for lack of jurisdiction.
3
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VACATED AND REMANDED.
4
