Opinion
21-13960
06-28-2022
KEITH BRYAN WEBB, Petitioner-Appellant, v. WARDEN, FCC COLEMAN 1, Respondent-Appellee.
DO NOT PUBLISH
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 5:21-cv-00475-TPB-PRL
Before WILLIAM PRYOR, Chief Judge, LAGOA and ANDERSON, Circuit Judges.
PER CURIAM.
Keith Bryan Webb, a federal prisoner, appeals pro se the sua sponte dismissal of his successive motion to vacate his sentence. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h). The United States moves for a summary affirmance and to stay the briefing schedule. Because "the position of [the United States] . . . is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case," Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969), we grant the motion for summary affirmance and dismiss as moot the motion to stay the briefing schedule.
"Section 2255 allows a federal prisoner to seek post-conviction relief from a sentence imposed in violation of the Constitution or laws of the United States or if it is otherwise subject to collateral attack." Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir. 2011). A federal prisoner must file a motion to vacate, 28 U.S.C. § 2255, to collaterally attack the legality of his sentence. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1081 (11th Cir. 2017) (en banc). The prisoner must obtain permission from "the appropriate court of appeals" to file a second or successive motion to vacate. 28 U.S.C. § 2255(h). "Without authorization, [a] district court lacks jurisdiction to consider a second or successive petition." United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
Summary affirmance is appropriate because there is no substantial question that the district court lacked jurisdiction to entertain Webb's motion to vacate. See Groendyke, 406 F.2d at 1162. Despite labeling his filing as a petition for a writ of habeas corpus, 28 U.S.C. § 2241, Webb challenged the life sentence he received for murdering his son. United States v. Webb, 796 F.2d 60, 62 (5th Cir. 1986). He repeated the argument made in several post conviction motions that his conviction and sentence were unconstitutional due to a flaw in his indictment. In re Webb, 575 U.S. 994 (2015) (dismissing petition for writ of habeas corpus and restricting future filings);Webb v. Warden Allenwood USP, 735 Fed.Appx. 42 (3d Cir. 2018) (affirming the denial of Webb's fourth post conviction petition, 28 U.S.C. § 2241); United States v. Webb, 165 F.3d 24 (5th Cir. 1998) (affirming the denial of Webb's third motion to vacate). Webb had to challenge the validity of his sentence in a motion to vacate, which he had to file in the "court which imposed the sentence," 28 U.S.C. § 2255(a), instead of in the "district wherein . . . [he is] restrain[ed]," id. § 2241(a). And because Webb previously filed a motion to vacate that was denied on the merits, he had to obtain permission to file his present motion. Id. § 2255(h). Because Webb failed to obtain permission from the Fifth Circuit Court of Appeals to file a successive motion in the district court that sentenced him, the district court was required to dismiss his motion to vacate.
We GRANT the motion for summary affirmance, AFFIRM the dismissal of Webb's motion to vacate, and DISMISS AS MOOT the motion to stay the briefing schedule.