USCA11 Case: 21-14048 Date Filed: 04/12/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14048
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GRANDA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:07-cr-20155-DMM-3
____________________
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2 Opinion of the Court 21-14048
Before LUCK, LAGOA, and MARCUS, Circuit Judges.
PER CURIAM:
Carlos Granda, a federal prisoner proceeding pro se, appeals
the district court’s denial with prejudice of his three post-judgment
motions: (i) for bond pending a motion to dismiss his 2007 indict-
ment; (ii) to set aside his original criminal judgment due to fraud
on the court (together, the motions “for bond and to set aside”);
and (iii) “to alter or amend” the court’s order denying the forego-
ing two motions on the substantive grounds raised. On appeal,
Granda argues that the district court should have granted his three
motions because his 2007 superseding indictment was jurisdiction-
ally defective, in that it lacked a signature by the foreperson of the
grand jury. In response, the government moves for summary af-
firmance of the district court’s orders, as well as a stay of the brief-
ing schedule, arguing that no substantial question exists that the
district court properly denied all three of Granda’s motions.1 After
1 Granda also requests, for the first time on appeal, that the government pro-
vide a statement under penalty of perjury, attesting to the fact that he was
legally indicted by a grand jury, or that it provide a copy of the grand jury
transcript. However, he has forfeited this argument by failing to raise it before
the district court, and we decline to consider it. See Dohrmann v. United
States,
442 F.3d 1279, 1282 (11th Cir. 2006) (“We generally will not consider a
habeas claim raised for the first time on appeal.”); see also United States v.
Campbell,
26 F.4th 860, 872 (11th Cir. 2022) (en banc) (noting that “forfeiture
is the failure to make the timely assertion of a right”) (quotation marks omit-
ted).
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21-14048 Opinion of the Court 3
thorough review, we grant the government’s motion, construe the
district court’s order denying his motions “for bond and to set
aside” as a dismissal without prejudice for lack of jurisdiction, and
summarily affirm.
Summary disposition is appropriate when, among other
things, “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 out-
come of the case, or where, as is more frequently the case, the ap-
peal is frivolous.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158,
1162 (5th Cir. 1969). 2
A district court’s subject matter jurisdiction is a question of
law we review de novo, Patel v. Hamilton Med. Ctr., Inc.,
967 F.3d
1190, 1193 (11th Cir. 2020), and we are “obligated to address juris-
dictional issues sua sponte whenever jurisdiction may be lacking.”
Reaves v. Sec’y, Fla. Dep’t of Corr.,
717 F.3d 886, 905 (11th Cir.
2013) (quotation marks omitted). We review the denial of a mo-
tion for reconsideration for abuse of discretion. United States v.
Simms,
385 F.3d 1347, 1356 (11th Cir. 2004). When review is only
for abuse of discretion, it “means that the district court had a ‘range
of choice’ and that we cannot reverse just because we might have
come to a different conclusion.” United States v. Harris,
989 F.3d
908, 912 (11th Cir. 2021) (quotation marks omitted). Further, a
2 In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all Fifth Circuit decisions issued before Oc-
tober 1, 1981.
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4 Opinion of the Court 21-14048
district court’s failure to discuss the reasons for dismissing a claim
“does not necessarily preclude affirmance where appropriate rea-
sons for dismissal are readily apparent.” Am. United Life Ins. Co.
v. Martinez,
480 F.3d 1043, 1071 (11th Cir. 2007) (quotation marks
omitted). We may also sua sponte modify a district court’s judg-
ment that is lawfully before us.
28 U.S.C. § 2106.
We construe pro se pleadings liberally. United States v.
Padgett,
917 F.3d 1312, 1316–17 (11th Cir. 2019). We “have an ob-
ligation to look behind the label of a motion filed by a pro se inmate
and determine whether the motion is, in effect, cognizable under a
different remedial statutory framework.” United States v. Jordan,
915 F.2d 622, 624–25 (11th Cir. 1990). However, all litigants must
comply with the applicable procedural rules, and we will not “serve
as de facto counsel for a party or . . . rewrite an otherwise deficient
pleading in order to sustain an action.” Padgett, 917 F.3d at 1317
(quotation marks omitted).
The circumstances under which a defendant may challenge
his convictions and total sentence are limited. Before entry of a
final judgment in a criminal case, the appropriate vehicle for chal-
lenging the sufficiency of an indictment is a motion pursuant to
Fed. R. Crim. P. 12(b), see United States v. deVegter,
198 F.3d 1324,
1326–27 (11th Cir. 1999), which a defendant may bring at any time
before trial. Fed. R. Crim. P. 12(b)(3)(B). However, a defendant’s
argument that the indictment against him failed to charge an of-
fense that implicates the district court’s jurisdiction cannot be for-
feited. See United States v. Thompson,
702 F.3d 604, 606 (11th Cir.
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21-14048 Opinion of the Court 5
2012). Nevertheless,
28 U.S.C. § 2255 serves as the primary method
of collateral attack on the validity of a federal sentence after a judg-
ment of conviction becomes final, see Jordan,
915 F.2d at 629, and
without our authorization, the district court lacks jurisdiction to
consider a second or successive § 2255 motion. See In re Bradford,
830 F.3d 1273, 1276–77 (11th Cir. 2016). If the district court lacks
subject matter jurisdiction, it has no power to render a judgment
on the merits, and it must dismiss the claim without prejudice.
Stalley v. Orlando Reg’l Healthcare Sys., Inc.,
524 F.3d 1229, 1234–
35 (11th Cir. 2008).
A § 2255 motion is “the exclusive mechanism for a federal
prisoner to seek collateral relief unless he can satisfy the saving
clause,” which encompasses claims for which a § 2255 motion is
not an adequate and effective means for testing the argument at
issue. McCarthan v. Dir. of Goodwill Industries-Suncoast, Inc.,
851
F.3d 1076, 1081 (11th Cir. 2017) (en banc) (quotation marks omit-
ted); see also
28 U.S.C. §§ 2241, 2255(e). We’ve explained that two
categories of cases fit within the saving clause to permit federal pris-
oners to seek relief under § 2241. Amodeo v. Coleman,
984 F.3d
992, 999 (11th Cir. 2021), cert. denied,
142 S. Ct. 836 (2022). The
first category consists of prisoners who challenge the execution (as
opposed to the legality) of their sentences.
Id. The second cate-
gory consists of cases where the sentencing court is unavailable or
dissolved, or where practical considerations, like multiple sentenc-
ing courts, prevent a prisoner from filing a § 2255 motion. Id. at
999–1000.
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6 Opinion of the Court 21-14048
Although the Federal Rules of Criminal Procedure do not
expressly authorize parties in a criminal case to file motions for re-
consideration, we have recognized these kinds of motions and held
that they may toll the time for filing a notice of appeal. See United
States v. Vicaria,
963 F.2d 1412, 1413–14 (11th Cir. 1992). How-
ever, a motion for reconsideration “cannot be used to relitigate old
matters, raise argument or present evidence that could have been
raised prior to the entry of judgment.” Wilchombe v. TeeVee
Toons, Inc.,
555 F.3d 949, 957 (11th Cir. 2009).
Here, because the district court lacked jurisdiction to con-
sider Granda’s unauthorized collateral challenges to his previous
convictions and total sentence, we conclude that summary affir-
mance is appropriate. As the record reflects, Granda’s motions “for
bond and to set aside” attempted to collaterally attack his convic-
tions and total sentence, so even though the district court did not
appear to construe the motions as having been filed pursuant to
§ 2255, we must look beyond the label of his motions and construe
them as § 2255 motions. See Am. United Life Ins. Co.,
480 F.3d at
1071; Jordan,
915 F.2d at 624–25. Yet as § 2255 motions, they were
successive ones the district court lacked jurisdiction to consider, be-
cause Granda filed two previous § 2255 motions that were denied
on the merits, and he never showed that he received our authori-
zation to proceed with any new § 2255 motions. See In re Bradford,
830 F.3d at 1276–77. Further, Granda’s challenge to his supersed-
ing indictment does not belong to either category of claims cog-
nizable under the saving clause, making it clear that the district
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21-14048 Opinion of the Court 7
court lacked jurisdiction over this claim. See Amodeo, 984 F.3d at
999–1000. 3
Finally, we construe Granda’s motion “to alter or amend” as
a motion for reconsideration of the district court’s order denying
his motions “for bond and to set aside.” See Jordan,
915 F.2d at
624–25. Nevertheless, the district court did not abuse its discretion
in denying that motion because it only reiterated prior arguments.
See Wilchombe,
555 F.3d at 957.
In short, the government’s position is clearly correct as a
matter of law, and no substantial question remains as to the out-
come of the case. See Groendyke Transp., Inc.,
406 F.2d at 1162.
We therefore construe the district court’s order denying his mo-
tions “for bond and to set aside” as a dismissal without prejudice
for lack of jurisdiction. See
28 U.S.C. § 2106. With that understand-
ing -- and thereby modifying the district court’s order to reflect a
dismissal without prejudice for lack of jurisdiction, see
id. -- we
GRANT the government’s motion for summary affirmance and
DENY as moot its motion to stay the briefing schedule.
3 We note that the government is incorrect that Granda forfeited his jurisdic-
tional challenge to the indictment in his original criminal proceeding, since
these kinds of challenges cannot be forfeited. See Thompson, 702 F.3d at 606.
Regardless, Granda cannot now pursue relief on this claim for the reason dis-
cussed above -- he did not obtain permission from our Court to proceed on
this claim in a second or successive § 2255 motion, so the district court lacked
jurisdiction to consider it.
