Levon Bazemore v. United States , 292 F. App'x 873 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14453 September 12, 2008
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket Nos. 96-00141-CV-4 & 91-00176 CR-4
LEVON BAZEMORE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(September 12, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Levon Bazemore (“Petitioner”), a federal prisoner proceeding pro se,
appeals the district court’s denial of his motion to reopen the time for filing an
appeal, pursuant to Federal Rule of Appellate Procedure 4(a)(6). Petitioner
ultimately seeks to appeal the district court’s order denying his Rule 60(b) motion
for relief from judgment: the motion was a successive motion under 28 U.S.C. §
2255 filed without authorization from this Court. No reversible error has been
shown; we affirm.
This appeal is the latest event in a long history of post-conviction
proceedings dating back to 1996, when Petitioner filed his first section 2255
petition challenging his federal conviction for various drug offenses. After his
first petition was denied, Petitioner filed a motion under section 2255 and Rule
60(b) seeking to vacate his sentence because it was based in part on a prior state
conviction that had been subsequently vacated by the Georgia Supreme Court.
The district court again denied Petitioner’s motion; and on appeal, we affirmed on
grounds that Petitioner’s motion was a successive section 2255 petition that had
not been authorized by this Court. See Bazemore v. United States, No. 01-15448
(11th Cir. Oct. 7, 2002).1
Petitioner returned to the district court and filed a Rule 60(b) motion
seeking reconsideration of its ruling that Petitioner’s previous motion was a
successive section 2255 petition. Petitioner argued that reconsideration was
warranted in the light of the Supreme Court’s intervening decision in Gonzalez v.
1
Although this opinion was initially issued in 2002, the mandate was withheld until 2005.
2
Crosby, 125 S. Ct. 2641 (2005). The district court denied Petitioner’s Rule 60(b)
motion on the ground that Petitioner’s previous motion was properly treated, even
under the rationale of Gonzalez, as a successive section 2255 petition. This Court
denied Petitioner’s application for certificate of appealability.
Undeterred, Petitioner filed another Rule 60(b) motion, arguing among
other things that the district court had misapplied Gonzalez. The district court
once again denied Petitioner’s motion. In doing so, the district court concluded
that it was bound by the law of the case as established by our earlier decision that
Petitioner’s post-conviction motion challenging his sentence was an unauthorized
successive section 2255 petition. Thus, according to the district court, Petitioner
must first seek permission from this Court to challenge his sentence or to seek
otherwise an exception to the successiveness doctrine under Gonzalez.
The issue now before us arose when the district court mailed its order, dated
8 March 2007, to Petitioner’s old address at the federal penitentiary in Jonesville,
Virginia. The order was returned as undeliverable. Although Petitioner had filed
his latest Rule 60(b) motion from his now-current prison address in Jesup,
Georgia, nothing in the record shows that he statedly informed the district court of
3
this change of address.2 Unaware of the district court’s order, Petitioner filed a
motion for leave to supplement his Rule 60(b) motion in July 2007, which the
district court denied on 15 August.
Because the limitations period for filing an appeal of the district court’s 8
March order had lapsed, Petitioner filed a motion on 24 August to reopen the time
for filing an appeal, pursuant to Federal Rule of Appellate Procedure 4(a)(6).3
Petitioner claimed that he had not received the district court’s order until 17
August, even though he had earlier notified the court of his new address in
Georgia. He urged the district court to grant his motion to reopen, claiming that
the delay would not prejudice the Government.
The district court nonetheless denied Petitioner’s motion. Without
determining whether Petitioner satisfied the conditions of Rule 4(a)(6), the district
court reiterated its prior order and ruled this way: Petitioner’s “‘remedy now is to
2
According to the district court, no official record exists of any change of Petitioner’s address
since 1999, when he formally notified the district court by letter of his new address at a federal
prison in South Carolina. The district court became aware of his transfer to Virginia only after he
had filed an earlier motion from that address. No record exists that Petitioner expressly notified the
district court of his new address in Georgia. This time, the return address on his latest motion
unfortunately did not catch the attention of the district court clerk.
3
Rule 4(a)(6) provides that “[t]he district court may reopen the time to file an appeal . . . only if
all the following conditions are satisfied: (A) the court finds that the moving party did not receive
notice . . . of the entry of the judgment or order sought to be appealed within 21 days after entry; (B)
the motion is filed within 180 days after the judgment or order is entered or within 7 days after the
moving party receives notice . . . of the entry, whichever is earlier; and (C) the court finds that no
party would be prejudiced.”
4
present his arguments directly to the Eleventh Circuit and convince it to apply
Gonzalez to except him from the successiveness doctrine.’ The same must be said
now, and this moots any appeal-time extension issue.”
We review a district court’s denial of a motion to reopen under Rule 4(a)(6)
for abuse of discretion. See McDaniel v. Moore, 292 F.3d 1304, 1305 (11th Cir.
2002). On appeal, Petitioner mainly contends that the district court abused its
discretion by denying his motion to reopen notwithstanding that he satisfied all the
rule’s requirements.
Even if we were to accept that Petitioner met all the preconditions under
Rule 4(a)(6), he still would not be entitled to an extension of time to file his
appeal. The rule states that a “district court may reopen the time to file an appeal”
only if the relevant conditions are satisfied. Fed. R. App. P. 4(a)(6) (emphasis
added). By the rule’s terms, the preconditions – if satisfied – merely authorize the
district court to exercise its discretion about whether to extend the time for filing
an appeal. See Benavides v. Bureau of Prisons, 79 F.3d 1211, 1214 (D.C. Cir.
1996) (“The rule by its terms authorizes the district court to grant relief; it does not
direct the court to do so.”). As a result, we cannot say that, just because Petitioner
satisfied all the prerequisites of Rule 4(a)(6), the district court abused its discretion
in denying his motion to reopen.
5
In rejecting Petitioner’s motion, the district court noted that, for whatever
reason, Petitioner had not officially notified the court of his change of address
since 1999.4 This fact alone is a sufficient basis for denying Petitioner’s motion to
reopen. Accordingly, on the facts of this case, we are satisfied that the district
court did not abuse its discretion.
AFFIRMED.
4
Notification is required by the court’s local rules. See S.D. Ga. Local Rule 11.1 (“Each attorney
and pro se litigant has a continuing obligation to apprise the Court of any address change.”).
6