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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13007
Non-Argument Calendar
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D.C. Docket Nos. 8:19-cv-02353-VMC-AEP,
8:11-cr-00307-VMC-AEP-1
YENER VAHIT BELLI,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 28, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and GRANT, Circuit
Judges.
PER CURIAM:
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Yener Belli, a federal prisoner, appeals the dismissal of his second motion to
vacate.
28 U.S.C. § 2255. The district court dismissed Belli’s motion for failure to
obtain leave to file a second or successive motion. See
id. §§ 2244(b)(3)(A),
2255(h). We affirm.
I. BACKGROUND
In 2012, Belli entered an agreement to plead guilty to using and brandishing
a Tec-9 semiautomatic firearm during and in relation to two armed robberies.
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U.S.C. § 924(c)(1)(A). Belli initialed the pages of the plea agreement stating that,
if he “cooperate[d] fully with the United States” “subsequent to sentencing, the
government agree[d] to consider whether such cooperation qualifie[d] as
‘substantial assistance’ . . . [that] warrant[ed] the filing of a motion for a reduction
of sentence within one year of the imposition of sentence pursuant to Fed. R. Crim.
P. 35(b).” The plea agreement stated that Belli “understands that the determination
as to whether ‘substantial assistance’ has been provided or what type of motion
related thereto will be filed, if any, rests solely with the United States Attorney for
the Middle District of Florida, and [Belli] agrees that [he] cannot and will not
challenge that determination, whether by appeal, collateral attack, or otherwise.”
And the agreement stated that it “constitutes the entire agreement between the
government and the defendant with respect to the aforementioned guilty plea and
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no other promises, agreements, or representations exist or have been made to the
defendant or defendant’s attorney with regard to such guilty plea.”
During the change of plea hearing, Belli entered pleas of guilty to the two
firearm offenses with the “understanding” that he faced “a minimum term of
imprisonment of seven plus 25, or 32 years” and he had “an opportunity to proceed
on a 5K[1.]1 at a later date.” A magistrate judge explained to Belli that “the
government . . . will consider your cooperation, and perhaps it will make a
recommendation of substantial assistance because of your cooperation.” The
magistrate judge also warned Belli that “all the government promises you is it’s
going to consider your cooperation,” it “doesn’t promise you that it will make a
recommendation of substantial assistance,” and Belli needed to “understand that’s
not guaranteed.” Belli acknowledged that he faced a “significant term[] of
incarceration” and that he “underst[ood] whatever sentence [he got], [he’s] going
to have to serve it.” Belli also acknowledged that he read and understood his plea
agreement, discussed its terms with counsel, and that no one “promise[d] [him]
anything other than what is set out in the plea agreement to get [him] to plead” or
“assured him of a particular sentence apart from the fact [he was] looking at certain
mandatory time.” After Belli “admitted committing the robberies and . . . using the
Tec-9 in the commission of them” as described in the factual basis of his plea
agreement, the magistrate judge accepted Belli’s pleas of guilty.
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Belli did not object to his presentence investigation report, which
recommended consecutive sentences of seven and 25 years of imprisonment. On
January 11, 2013, the district court sentenced Belli to 32 years of imprisonment.
In 2016, Belli moved, without success, to vacate his firearm convictions.
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U.S.C. § 2255. He argued that his predicate offenses of Hobbs Act robbery no
longer qualified as crimes of violence after Johnson v. United States,
576 U.S. 591
(2015), in which the Supreme Court held that the definition of “violent felony” in
the residual clause of the Armed Career Criminal Act was void for vagueness. The
district court denied Belli’s motion as untimely and, in the alternative, as without
merit. Belli appealed, but later he voluntarily dismissed his appeal. Belli v. United
States, No. 16-15173 (11th Cir. Jan. 6, 2017).
In 2019, Belli filed his second motion to vacate.
28 U.S.C. § 2255. He
argued that his trial counsel induced him to plead guilty with the false promise he
would receive a reduction of his sentence for his substantial assistance. Belli
contended that counsel broke his promise when he died in September 2018 without
obtaining a sentence reduction. Belli submitted affidavits in which he, his mother,
and his brother stated that counsel had assured them in the summer of 2018 that he
was “still working” on the sentence reduction.
On motion of the government, the district court dismissed Belli’s motion as
an unauthorized second or successive motion. See
id. §§ 2244(b)(3)(A), 2255(h).
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The district court identified “the lack of a timely Rule 35 motion” instead of the
death of Belli’s counsel “as the factual predicate for [the] current Section 2255
motion.” The district court determined that “the facts supporting [Belli’s] claim [of
ineffective assistance] were available when he filed his initial Section 2255
motion” because his plea agreement stated a motion to reduce would be filed
“within one year” of sentencing, see Fed. R. Crim. P. 35(b)(1), and “by January
2014, [he] was on notice” that the motion had not been filed and counsel had
broken his promise. The district court also stated that Belli’s “reliance on [the]
statement [of his attorney to obtain a sentence reduction in 2018] was unreasonable
because such promise would have directly contradicted the rule and the plea
agreement.” “Without authorization from the Eleventh Circuit to consider Belli’s
second or successive Section 2255 motion, [the district court ruled that it] lack[ed]
jurisdiction to consider [Belli’s] motion . . . .” Later, the district court denied
Belli’s motion to reconsider. See Fed. R. Civ. P. 60(b).
II. STANDARD OF REVIEW
We review de novo the dismissal of a motion to vacate for lack of
jurisdiction. Randolph v. United States,
904 F.3d 962, 964 (11th Cir. 2018).
III. DISCUSSION
A federal prisoner may file only one motion to vacate, set aside, or correct
his conviction unless he obtains leave from this Court to file a “second or
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successive” motion.
28 U.S.C. §§ 2255(h), 2244(b)(3)(A); Boyd v. United States,
754 F.3d 1298, 1301 (11th Cir. 2014). If the prisoner fails to request leave, the
district court lacks jurisdiction to consider the merits of a second or successive
motion. Armstrong v. United States,
986 F.3d 1345, 1348 (11th Cir. 2021).
Belli argues that his motion is not “second or successive.” But Belli’s
numerically second motion to vacate is “second or successive” unless it contains
an issue that could not have been raised in his initial motion because it had yet to
“ripen.” See Stewart v. United States,
646 F.3d 856, 863 (11th Cir. 2011). In other
words, Belli’s second motion to vacate is “second or successive” unless he
establishes that “the factual predicate for [his] claim could not have been
discovered previously through the exercise of due diligence.”
28 U.S.C.
§ 2244(b)(2)(B).
Belli was dilatory. The facts supporting his claim of ineffective assistance of
trial counsel existed before he filed his initial motion to vacate in 2016. Belli’s plea
agreement stated that the government would “consider whether [his] cooperation
qualifie[d] as ‘substantial assistance’ . . . warranting the filing of a motion for a
reduction of sentence within one year of the imposition of [his] sentence” as
provided in Federal Rule of Criminal Procedure 35(b)(1). Belli acknowledged
during his plea colloquy that he had read and understood his plea agreement, and
we presume that those statements are true. See United States v. Medlock,
12 F.3d
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185, 187 (11th Cir. 1994); see, e.g., Blackledge v. Allison,
431 U.S. 63, 73–74
(1977) (“[T]he representations of the defendant . . . at [a plea] hearing . . .
constitute a formidable barrier in any subsequent collateral proceedings. Solemn
declarations in open court carry a strong presumption of verity.”). So Belli knew
by the terms of his plea agreement that counsel had one year from sentencing on
January 11, 2013, to lobby the government to file a motion to reduce based on
Belli’s substantial assistance. When the one-year deadline expired in January 2014,
Belli knew his counsel had failed to fulfill his promise to obtain a sentence
reduction. So the district court correctly classified Belli’s motion as “second or
successive” because the factual predicate for his claim of ineffective assistance
existed approximately two years before he filed his initial motion to vacate.
Belli argues that his attorney’s promise was “broader” than the one-year
period specified in the plea agreement and premised on Federal Rule of Criminal
Procedure 35(b)(2). But, in the words of the district court, Belli failed to establish
that the “legal mechanism in Rule 35(b)(2) through which the United States may
file a motion for sentence reduction more than one year after sentencing . . . applies
to him.”
Belli’s argument is irreconcilable with the plain language of his plea
agreement and the statements he made during his change of plea hearing. The plea
agreement stated that the government would move for a sentence reduction “within
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one year of the imposition of sentence.” The agreement also stated that it
“constitute[d] the entire agreement between the government and the defendant with
respect to the aforementioned guilty plea and no other promises, agreements, or
representations exist or have been made to the defendant or defendant’s attorney
with regard to such guilty plea.” And Belli acknowledged during his change of
plea hearing that no one “promise[d] [him] anything other than what is set out in
the plea agreement to get [him] to plead” or “assured him of a particular sentence
apart from the fact [he was] looking at certain mandatory time.” By the terms of
the plea agreement, which Belli acknowledged applied to him, he could not obtain
a sentence reduction more than one year after sentencing. Belli’s situation is
distinguishable from that of the state prisoner in Davis v. Butler,
825 F.2d 892, 894
(5th Cir. 1987), who argued that he pleaded guilty based on his trial attorney’s
assurance that he would be pardoned in three years and where neither the plea
agreement nor plea colloquy addressed the issue.
The district court lacked jurisdiction to consider Belli’s second motion. Belli
failed to obtain leave of this Court to file a second motion to vacate.
28 U.S.C.
§§ 2255(h), 2244(b)(3)(A). Because Belli failed to obtain permission to file his
second motion to vacate, the district court correctly dismissed his filing as an
unauthorized second or successive motion. See Armstrong, 986 F.3d at 1348.
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IV. CONCLUSION
We AFFIRM the dismissal of Belli’s second motion to vacate.
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