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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-15046
Non-Argument Calendar
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D.C. Docket No. 9:10-cr-80080-KAM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHRISTOPHER JOHNSON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 14, 2021)
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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Christopher Johnson, pro se, appeals the district court’s denial of his post-
judgment motion to appoint counsel to assist him in filing a
28 U.S.C. § 2255 motion
to vacate. After careful review, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
A grand jury indicted Johnson on one count of possessing a gun after a prior
felony conviction and one count of possessing ammunition after a prior felony
conviction, both in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). Johnson entered
into a plea agreement in which he pled guilty to possessing a firearm after a felony
conviction. In exchange, prosecutors agreed to dismiss the ammunition possession
charge. On November 19, 2010, after accepting the plea, the district court sentenced
Johnson to 192-months’ imprisonment and a four-year term of supervised release.
On June 23, 2014, Johnson filed a motion to vacate his sentence pursuant to
28 U.S.C. § 2255. In his motion, he argued that his sentence was a miscarriage of
justice and violated his due process rights under the Fifth Amendment based on the
United States Supreme Court’s decision in Descamps v. United States,
570 U.S. 254
(2013). On April 29, 2015, the district court denied the § 2255 motion as untimely.
Johnson moved, under Federal Rules of Civil Procedure 60(b), to reopen the district
court’s consideration of the motion due to inadvertence or excusable neglect. The
district court denied that motion, finding that Johnson could have raised an equitable
tolling argument in his original § 2255 motion. In April 2016, Johnson filed a
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Federal Rule of Civil Procedure 59(e) motion to either amend the district court’s
Rule 60(b) decision or alternatively issue a certificate of appealability. The district
court denied that motion, finding it untimely and explaining that it would have
denied Johnson’s § 2255 motion on the merits if the motion was timely. The district
court also denied a certificate of appealability.
On November 25, 2019, Johnson filed the motion on appeal, which asked the
district court to appoint him counsel to assist him with filing another § 2255 motion.
Johnson argued that the grand jury indictment alleged that Johnson was a felon in
possession of a firearm but did not allege that he knew of his status as a felon and
that, under Rehaif v. United States,
139 S. Ct. 2191 (2019), such an allegation is
required because knowledge is an element of the offense. On November 27, 2019,
the district court denied the motion. The district court noted that Johnson sought an
attorney to assist with what would be a successive § 2255 motion. Because Johnson
had not obtained permission from this Court to file a § 2255 successive motion, the
district court found that it would not have jurisdiction to entertain such a motion.
Further, the district court doubted that Rehaif could provide the requested relief
given this Court’s decision in In re Palacios,
931 F.3d 1314 (11th Cir. 2019). In
Palacios, this Court held that Rehaif neither announced a new constitutional rule nor
was made retroactive to cases on collateral review to allow for a successive petition
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under
28 U.S.C. § 2255(h)(2).
Id. at 1315. Thus, the district court found that there
was no basis to appoint Johnson. This timely appeal followed.
II. STANDARD OF REVIEW
Whether a party has the right to counsel is a legal question that we review de
novo. United States v. Webb,
565 F.3d 789, 793 (11th Cir. 2009). If no such right
exists, we review the district court’s decision not to appoint counsel for an abuse of
discretion.
Id.
III. ANALYSIS
On appeal, Johnson raises three issues—none of which address how the
district court erred in denying his motion to appoint counsel. Instead, he argues that:
(1) our decision in McCarthan v. Director of Goodwill Industries-Suncoast, Inc.,
851 F.3d 1076 (11th Cir. 2017) (en banc), violates the Suspension Clause; (2) he is
entitled to pre-Antiterrorism and Effective Death Penalty Act (“AEDPA”)
authorization to file for relief under Rehaif; and (3) the AEDPA is unconstitutional.
While we liberally construe the pleadings of pro se defendants such as Johnson,
Jones v. Fla. Parole Comm’n,
787 F.3d 1105, 1107 (11th Cir. 2015), issues not
briefed on appeal by a pro se litigant are deemed abandoned, see Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
As an initial matter, Johnson has likely abandoned his challenge to the district
court’s denial of his motion to appoint counsel because he does not explain why the
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district court erred in that respect in his brief. See
id. We nonetheless will consider
the issue on the merits. The right for an indigent party to have a court-appointed
attorney emanates from three different sources. First, the Fifth Amendment’s Due
Process Clause may provide the right when “fundamental fairness” requires it.
Webb,
565 F.3d at 794 (quoting Gagnon v. Scarpelli,
411 U.S. 778, 790 (1973)).
Second, the Sixth Amendment provides the right at “critical stages of a criminal
prosecution,” including during a first appeal.
Id. (quoting Williams v. Turpin,
87
F.3d 1204, 1209 (11th Cir.1996)). Third, a defendant has a statutory right to counsel
under 18 U.S.C. § 3006A when: (1) the defendant is entitled to appointment of
counsel under the Sixth Amendment to the Constitution; (2) the defendant “is under
arrest, [and] such representation is required by law”; and (3) the district court
determines that “the interests of justice so require” when a defendant seeks relief
under
28 U.S.C. §§ 2241, 2254, or 2255. 18 U.S.C. § 3006A. The Rules Governing
2254 Cases and Section 2255 Proceedings, in turn, require counsel to be appointed
for indigent parties if necessary for effective discovery or if an evidentiary hearing
is warranted. Rules Governing Section 2254 Cases and Section 2255 Proceedings,
Rules 6(a), 8(c).
Johnson has not shown that he has a right to counsel under any of these
sources. With respect to the Fifth Amendment’s Due Process Clause, Johnson has
not shown that a lack of court-appointed counsel would result in a fundamentally
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unfair proceeding, implicating his rights under the Due Process Clause. As to the
Sixth Amendment, it only applies to criminal proceedings, whereas a § 2255 motion
is civil. Barbour v. Haley,
471 F.3d 1222, 1231 (11th Cir. 2006). While Johnson
argues on appeal the merits of the claims he would raise if allowed to file a
successive § 2255 motion, he has not demonstrated that the interests of justice
require that an attorney litigate these claims on his behalf. Furthermore, Johnson
has not shown that an attorney is required to help with an evidentiary hearing or to
provide effective discovery. Accordingly, we conclude that Johnson is not entitled,
as a matter of law, to appointed counsel.
When a party does not have a constitutional, statutory, or rule-based right to
counsel, the district court may exercise its discretion as to whether to appoint
counsel. See Webb,
565 F.3d at 795; see also
28 U.S.C. § 2255(g) (allowing a court
to appoint counsel for proceedings brought under that section). We conclude that
the district court did not abuse its discretion in denying Johnson counsel to assist
with a § 2255 motion.
First, the district court acted within its discretion when it considered Johnson’s
inability to file another § 2255 motion because he has not obtained the requisite
authorization for a successive motion from this Court.
28 U.S.C. § 2244(b)(3)(A).
Further, the district court expressed doubt as to Johnson’s ability to obtain such an
authorization. To obtain permission for a successive petition, Johnson would have
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to show, as relevant here, that his “claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.”
Id. § 2244(b)(2)(A). If Johnson received the appointed
counsel he sought, it would be to seek relief based on the Supreme Court’s decision
in Rehaif. The district court correctly noted that, in In re Palacios, we held that
Rehaif did not create a constitutional rule retroactively applicable on collateral relief.
931 F.3d at 1315.
Johnson seems to argue that to the extent that a successive petition would not
be authorized, the saving clause of § 2255(e) allows him to file a habeas petition
pursuant to § 2241. However, our decision in McCarthan precludes that result. See
851 F.3d at 1090. Johnson has not demonstrated that the district court abused its
discretion by not appointing counsel to help him relitigate the holding in McCarthan.
As to Johnson’s contentions that he is entitled to pre-AEDPA relief and that
AEDPA is unconstitutional, these arguments lack merit. The Supreme Court held
in Felker v. Turpin,
518 U.S. 651, 664 (1996), that AEDPA does not violate the
Suspension Clause of the Constitution, and Johnson provides no binding legal
authority for the proposition that AEDPA should not apply in his case.
IV. CONCLUSION
Accordingly, we affirm the district court’s denial of Johnson’s motion to
appoint counsel.
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AFFIRMED.
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