USCA11 Case: 20-11859 Date Filed: 10/03/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11859
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TORRI MCKNIGHT,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20816-MGC-1
____________________
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2 Opinion of the Court 20-11859
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No. 21-11398
Non-Argument Calendar
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TORRI MCKNIGHT,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket Nos. 1:20-cv-22473-MGC,
1:18-cr-20816-MGC-1
____________________
Before JORDAN, LAGOA, and LUCK, Circuit Judges.
PER CURIAM:
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20-11859 Opinion of the Court 3
In this consolidated appeal, Torri McKnight, a former fed-
eral prisoner, appeals the district court’s final judgment in her crim-
inal case, which was entered on August 5, 2019 (No. 20-11859). Ms.
McKnight also appeals the district court’s dismissal without preju-
dice of her
28 U.S.C. § 2255 motion to vacate, the denial of her mo-
tion for an indicative ruling, and the denial of her motion for re-
consideration (No. 21-11398). The government has moved to dis-
miss Ms. McKnight’s appeal in No. 20-11859 as untimely, to sum-
marily affirm the district court’s orders in No. 21-11398, and to stay
the briefing schedule in both appeals.
We have reviewed the parties’ briefs and the record. We
now grant the government’s motion to dismiss Ms. McKnight’s
criminal direct appeal (No. 20-11859). We also summarily affirm
the district court’s orders in Ms. McKnight’s § 2255 appeal (No. 21-
11398). Because we summarily affirm in No. 21-11398, we deny
the government’s motion to stay the briefing schedule as moot.
We explain our reasoning below.
I
In a criminal case, a defendant’s notice of appeal must be
filed within 14 days after entry of the judgment or order being ap-
pealed. See Fed. R. App. P. 4(b)(1)(A)(i). The time limits in crimi-
nal appeals are not jurisdictional, but instead represent a claim-pro-
cessing rule. See United States v. Lopez,
562 F.3d 1309, 1313 (11th
Cir. 2009). Nevertheless, if the government raises the issue of time-
liness, we must apply the time limits of Rule 4(b). See
id. at 1314.
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4 Opinion of the Court 20-11859
Ms. McKnight’s pro se notice of appeal in No. 20-11859 is
undated, so it is deemed filed when it was postmarked on May 12,
2020. See Fed. R. App. P. 4(c)(1)(A)(ii); see also Daniels v. United
States,
809 F.3d 588, 589 (11th Cir. 2015) (explaining that a pro se
prisoner’s filing is generally deemed filed on the date that he (or
she) delivered it to prison authorities for mailing). Her criminal
judgment became final on August 5, 2019. Therefore, her notice
of appeal—filed almost nine months later—is untimely pursuant to
Rule 4(b)(1)(A). See also Lopez,
562 F.3d at 1314.
The notice of appeal also cannot be construed as a motion
to extend the time to appeal because it was not filed within 30 days
after the appeal period expired. See Fed. R. App. P. 4(b)(4) (author-
izing the district court to grant a 30-day extension of the 14-day
deadline in a criminal case based on a finding of good cause or ex-
cusable neglect). See also United States v. Ward,
696 F.2d 1315,
1317–18 (11th Cir. 1983) (construing a late notice of appeal, filed
within the 30 days during which an extension is permissible, as a
motion for extension of time). Here the untimely appeal far ex-
ceeds the 30 days.
Because the government has raised the issue of timeliness,
we must enforce Rule 4(b)’s requirements. Accordingly, Ms.
McKnight’s appeal in No. 20-11859 is DISMISSED as untimely.
II
We review de novo a district court’s dismissal of a § 2255
motion for lack of jurisdiction. See Randolph v. United States, 904
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20-11859 Opinion of the Court
5
F.3d 962, 964 (11th Cir. 2018). We review the denial of a motion
for reconsideration for an abuse of discretion. See United States v.
Llewlyn,
879 F.3d 1291, 1294 (11th Cir. 2018). A district court
abuses its discretion when it “applies an incorrect legal standard”
or “follows improper procedures in making a determination.”
Diveroli v. United States,
803 F.3d 1258, 1262 (11th Cir. 2015) (quo-
tation marks omitted).
A
In June 2020, while her criminal direct appeal was pending,
Ms. McKnight filed a pro se § 2255 motion to vacate in which she
raised six claims of ineffective assistance of counsel. Relevant here,
Ground Six of her § 2255 motion was “ineffective assistance by fail-
ing to provide knowledge of appeal rights.” D.E. 1 at 13. The only
description of this claim that Ms. McKnight provided was one sen-
tence stating that her attorney “failed to provide knowledge of her
appeal rights before and after sentencing.” Id. 1
Ms. McKnight then moved the district court, through coun-
sel, to issue an “indicative ruling” on Ground Six. She acknowl-
edged that her notice of appeal in her criminal case was untimely
but argued that the district court could cure the untimeliness of her
direct appeal by indicating that it would grant relief on her § 2255
motion as to her ineffective-assistance claim that resulted in a fail-
ure to file a timely notice of appeal. See D.E. 5 at 2–3. She asserted
1The docket entries in this section will refer to Ms. McKnight’s appeal in No.
21-11398 (District Case No. 1:20-cv-22473).
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6 Opinion of the Court 20-11859
that, while her pending direct appeal would normally divest the
district court of jurisdiction to consider her § 2255 motion, the Fed-
eral Rules of Appellate Procedure and this Court’s rules provided a
process through which the district court could consider the claim
and let this Court know whether it would accept a remand to grant
relief. See id. at 3–4. She requested that the district court issue an
order of indicative ruling stating that it would find ineffective assis-
tance of counsel if this Court were to remand the appeal, vacate its
criminal judgment, and reenter its judgment against her to provide
her with a new timeframe for her criminal direct appeal. See id. at
4–5.
In April 2021, without requiring a response from the govern-
ment, the district court denied the motion for an indicative ruling
and dismissed without prejudice Ms. McKnight’s § 2255 motion for
lack of jurisdiction. See D.E. 6 at 1–2. The district court stated that
it could not grant the relief that she requested because a defendant
may not seek collateral relief while her direct appeal is pending. It
determined that Ms. McKnight had not shown an extraordinary cir-
cumstance warranting departure from the general rule that courts
lack jurisdiction to hear § 2255 motions filed while a direct appeal
is pending.
Ms. McKnight then moved for reconsideration, arguing that
the district court had ignored the process outlined in Rule 37 of the
Federal Rules of Criminal Procedure. See D.E. at 1, 5. She stated
that she filed her motion for an indicative ruling because she was
in a “legal bind” due to her former counsel’s ineffectiveness
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20-11859 Opinion of the Court 7
regarding her appellate rights and the procedural posture of her
case. Id. at 3–4. She argued that Ground Six was directly tied to
the timeliness and validity of her pending direct appeal and the dis-
trict court had authority to indicate whether it would grant relief,
pursuant to Rule 37, thereby making her appeal “valid and timely.”
See id. at 4.
The district court denied her motion for reconsideration,
noting that it “cannot give [Ms. McKnight] the relief she seeks[.]”
It could not “look at” the motion and determine whether it would
be inclined to grant Ground Six, as doing so would require exten-
sive litigation regarding the § 2255 motion, including ordering the
government to show cause, allowing Ms. McKnight to reply, and
potentially holding a hearing. See D.E. 9 at 1–2. It explained that
because it lacked jurisdiction over the § 2255 motion, it could not
authorize such extensive litigation regarding it and thus could not
determine whether it would grant it. See id. at 2. The district court
went on to say that because Ms. McKnight’s ineffective-assistance
claim in Ground Six was “wholly conclusory,” it would be “espe-
cially improper” for it to indicate to this Court that it would grant
her § 2255 motion. See id. at 2.
B
The government asks us to summarily affirm the district
court’s order dismissing Ms. McKnight’s § 2255 motion and deny-
ing her motion for an indicative ruling. We have recognized at
least two circumstances under which summary disposition is ap-
propriate. The first is where time is of the essence, such as
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8 Opinion of the Court 20-11859
“situations where important public policy issues are involved or
those where rights delayed are rights denied.” Groendyke
Transport, Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). The
second is where “the position of one of the parties is clearly right
as a matter of law so that there can be no substantial question as to
the outcome of the case, or where, as is more frequently the case,
the appeal is frivolous.”
Id. Here, the government contends that
Ms. McKnight’s appeal falls within that second category because
the district court’s ruling was clearly correct as a matter of law. We
agree and summarily affirm its orders in this appeal.
Generally, a defendant may not pursue collateral relief while
her direct criminal appeal is pending. See United States v.
Khoury,
901 F.2d 975, 976 (11th Cir. 1990). The filing of a notice of
appeal divests a district court of jurisdiction “over the aspects of the
case involved in the appeal” and bars the district court from taking
“any action with regard to the matter except in aid of the appeal.”
United States v. Diveroli,
729 F.3d 1339, 1341 (11th Cir. 2013) (in-
ternal quotation marks and citation omitted). Usually, the appro-
priate action for addressing a § 2255 motion filed during the pen-
dency of the direct appeal is to dismiss the § 2255 action without
prejudice so that the defendant can pursue his or her collateral rem-
edies when jurisdiction is revested in the district court after dispo-
sition of the direct appeal. See Khoury,
901 F.2d at 976.
But Rule 37 of the Federal Rules of Criminal Procedure—
entitled “Indicative Ruling on a Motion for Relief That Is Barred by
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20-11859 Opinion of the Court 9
a Pending Appeal”—does offer a discretionary carve out for this
typical course action. In relevant part, it provides:
If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has
been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion
if the court of appeals remands for that purpose
or that the motion raises a substantial issue.
Fed. R. Crim. P. 37(a) (emphasis added). If the district court states
that it would grant the motion or that the motion raises a substan-
tial issue, the movant must promptly notify the Clerk of this Court,
and we may remand for further proceedings. Fed. R. App. P. 12.1.
Eleventh Circuit Rule 12.1-1(c) provides, in relevant part,
that when a party files a motion in the district court that the court
lacks authority to grant because an appeal is pending, “the district
court may consider whether to grant or deny the motion without
obtaining a remand from this court.” 11th Cir. R. 12.1-1(c) (empha-
sis added). Rule 12.1-1 further states that “[i]f the district court de-
termines that the motion should be denied, the district court may
deny the motion without a remand by this court.” Id. 12.1-1(c)(1)
(emphasis added). But “[i]f the district court determines that the
motion should be granted, the district court should enter an order
stating that it intends to grant the motion if this court returns juris-
diction to it.” Id. 12.1-1(c)(2). Moreover, if the district court
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10 Opinion of the Court 20-11859
determines that the motion raises a substantial issue that warrants
further consideration, it “should enter an order so stating” and
“may without a remand conduct such further proceedings as are
necessary to determine whether the motion should be granted or
denied.” Id. 12.1-1(d) (emphasis added).
Ms. McKnight is correct that the district court could have
issued an indicative ruling regarding her § 2255 petition. But de-
parture from the general rule is discretionary. Rule 37 specifically
notes that a district court may state that it would grant the motion
if the court of appeals remands for that purpose or that the motion
raises a substantial issue. It does not say that a district court must
opine on the matter and issue an indicative ruling. The same is true
for Rule 12.1 of the Rules of Appellate Procedure and Eleventh Cir-
cuit Rule 12.1-1(c), both of which state that a district court may
pursue a different course of action from the general rule under cer-
tain circumstances and findings. Discretion to issue an indicative
ruling is not an obligation to do so, and Ms. McKnight has not pro-
vided any reason—other than her desire to fashion a work-around
for the timeliness issue in her criminal direct appeal—to impose
such a requirement.
Furthermore, the decision to exercise that discretion is pred-
icated on a finding by the district court that it would either grant
the motion if the court of appeals remands for the purpose raised
in the § 2255 motion (in this case ineffective-assistance) or that the
motion raises a substantial issue. But as the district court here
noted, Count Six of Ms. McKnight’s §2255 motion is incredibly
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20-11859 Opinion of the Court 11
brief and “wholly conclusory.” D.E. 9 at 2. Ms. McKnight claimed
that her counsel provided “ineffective assistance by failing to pro-
vide knowledge of appeal rights,” explaining only in one sentence
that her attorney “failed to provide knowledge of her appeal rights
before and after sentencing.” D.E. 1 at 13. As the government
notes, Ms. McKnight did not allege in her § 2255 motion that she
specifically asked her attorney to file a direct appeal on her behalf
and her attorney failed to do so or that she ever conveyed to her
attorney any desire to potentially appeal her conviction or sen-
tence. See Thompson v. United States,
504 F.3d 1203, 1206 (11th
Cir. 2007) (explaining that an attorney’s performance is deficient
where the attorney fails to file an appeal on behalf of a client who
specifically asks the attorney to do so). See also Martin v. United
States,
81 F.3d 1083, 1084 (11th Cir. 1996) (holding that “a defend-
ant is prejudiced where his attorney fails to file an appeal after being
requested to do so, even after the defendant pled guilty”).
Given Ms. McKnight’s conclusory allegation, the district
court expressly stated that it would be “especially improper” for it
to indicate that it would grant her § 2255 motion if her case were
remanded, see D.E. 9 at 2, which demonstrates that the district
court considered the procedures outlined in Rule 37(a) and
Rule 12.1-1(c). It simply did not find that Ms. McKnight had artic-
ulated a reason why it should exercise its discretion to her benefit.
Accordingly, the district court did not abuse its discretion in
denying Ms. McKnight’s motion for an indicative ruling or her sub-
sequent motion for reconsideration, as it applied the correct legal
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12 Opinion of the Court 20-11859
standard and followed the proper procedures set out in Rule 37(a)
of the Federal Rules of Criminal Procedure and Eleventh Circuit
Rule 12.1-1. We conclude that the district court’s rulings (both its
initial denial of Ms. McKnight’s § 2255 motion and the denial for
reconsideration) were correct as a matter of law and therefore sum-
marily affirm. 2
III
We GRANT the government’s motion to dismiss Ms.
McKnight’s criminal direct appeal as untimely in No. 20-11859, and
GRANT the government’s motion for summary affirmance of Ms.
McKnight’s § 2255 appeal in No. 21-11398. In so doing, we DENY
AS MOOT the government’s motion to stay the briefing schedule.
2 Our decision today does not necessarily leave Ms. McKnight without rem-
edy. Although she was released from federal prison on October 21, 2021, she
remains “in custody” for purposes of § 2255 because she is currently serving a
three-year term of supervised release. See Jones v. Cunningham,
371 U.S. 236,
239–40 (1963) (holding that a prisoner who had been placed on parole was still
“in custody” under his unexpired sentence). Therefore, as the district court
dismissed her § 2255 motion without prejudice, she may refile her § 2255 mo-
tion raising her various claims of ineffective assistance of counsel after dispo-
sition of her direct criminal appeal. See Khoury,
901 F.2d at 976 (stating that
a movant “may pursue his collateral remedies without prejudice when juris-
diction is revested in the district court”).
