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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12051
Non-Argument Calendar
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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).
2
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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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