Rateek Allah v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 21, 2020
• Docket: 19-14703
• Status: Unpublished

Opinion

Case: 19-14703 Date Filed: 09/21/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14703 Non-Argument Calendar ________________________

D.C. Docket No. 9:18-cv-80624-JIC

RATEEK ALLAH,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee. ________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(September 21, 2020)

Before JORDAN, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:

Rateek Allah, a federal prisoner proceeding pro se, appeals the district

court’s order denying his pro se Rule 60(b) motion challenging a prior district

court order dismissing his 28 U.S.C. § 2241 petition. The Government has Case: 19-14703 Date Filed: 09/21/2020 Page: 2 of 4

responded by moving to dismiss the appeal for lack of jurisdiction, for summary

affirmance, and to stay the briefing schedule.

I.

The Government’s motion to dismiss this appeal for lack of jurisdiction is

DENIED. The district court did not construe either Allah’s petition or his motion

as unauthorized successive 28 U.S.C. § 2255 motions. Accordingly, the

Government’s argument that we lack jurisdiction because Allah has not been

granted a certificate of appealability is incorrect. See Sawyer v. Holder, 326 F.3d

1363, 1364 n.3 (11th Cir. 2003) (noting that a certificate of appealability is not

required where a federal prisoner is proceeding under § 2241); see also 28 U.S.C.

§ 2253(c)(1).

II.

Summary disposition is appropriate either where time is of the essence, such

as “situations where important public policy issues are involved or those where

rights delayed are rights denied,” or where “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

outcome of the case, or where, as is more frequently the case, the appeal is

frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).1

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 2 Case: 19-14703 Date Filed: 09/21/2020 Page: 3 of 4

An appeal is frivolous if it is “without arguable merit either in law or fact.” Napier

v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quotations omitted).

A party may seek relief from a final judgment by filing a Rule 60(b) motion.

Fed. R. Civ. P. 60(b). We review the denial of a Rule 60(b) motion for relief from

judgment for an abuse of discretion. Stansell v. Revolutionary Armed Forces of

Colombia, 771 F.3d 713, 734 (11th Cir. 2014).

We GRANT the Government’s motion for summary affirmance because there

is no substantial question that the district court did not abuse its discretion in denying

Allah’s Rule 60(b) motion. See Groendyke, 406 F.2d at 1162. Allah argued in his

motion that he wanted to set aside the district court’s prior ruling as to his § 2241

petition because the court erred in construing his petition as an unauthorized

successive § 2255 motion. However, the district court clearly stated, both in the

original denial of Allah’s § 2241 petition and its denial of Allah’s Rule 60(b) motion

that it did not construe his petition as a § 2255 motion. Therefore, the district court

did not abuse its discretion in denying Allah’s Rule 60(b) motion. Moreover, on

appeal, Allah makes no arguments that the district court erred in denying his Rule

60(b) motion, only focusing on the merits of his petition that he no longer qualifies

as a career offender. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)

(explaining a pro se litigant who does not address an issue in his initial brief

abandons the issue on appeal).

3 Case: 19-14703 Date Filed: 09/21/2020 Page: 4 of 4

Thus, there is no substantial question as to the outcome of the case, and the

Government’s position is correct as a matter of law. See Groendyke, 406 F.2d at

1162. Accordingly, the Government’s motion for summary affirmance is

GRANTED and its motion to stay the briefing schedule is DENIED as moot. All

other pending motions are DENIED as moot.