United States v. Horace Edward Lockhart

Opinion

Case: 11-14485 Date Filed: 07/20/2012 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 11-14485 Non-Argument Calendar ________________________

D.C. Docket No. 1:92-cr-00679-FAM-6

HORACE EDWARD LOCKHART, a.k.a. Clint,

Petitioner-Appellant.

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________ (July 20, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

Horace Lockhart, a federal prisoner proceeding pro se, appeals the district Case: 11-14485 Date Filed: 07/20/2012 Page: 2 of 3

court’s denial of Lockhart’s most-recent motion to dismiss his indictment pursuant

to Federal Rule of Civil Procedure 60(b). Lockhart has previously filed several

motions to vacate under 28 U.S.C. § 2255. This Court also affirmed the district

court’s denial of Lockhart’s previous Rule 60(b) motion—construed as another

§ 2255 motion—because Lockhart had not received permission to file successive

§ 2255 motions. See United States v. Lockhart, 409 F. App’x 307 (11th Cir. 2011)

(per curiam).

On appeal, Lockhart asserts that the indictment in his federal criminal case

failed to charge a federal offense, and thus, the district court lacked jurisdiction

over his case. Lockhart further argues that his counsel was ineffective at trial and

at sentencing in various ways.

We are obligated to inquire into subject-matter jurisdiction sua sponte

whenever it may be lacking and review de novo questions concerning jurisdiction.

Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (per curiam).

Where, in a purported Rule 60(b) motion, a defendant challenges the

validity of his conviction by seeking to add a new ground for relief or attacking a

district court’s previous resolution of a claim on the merits, the motion is properly

construed as a second or successive 28 U.S.C. § 2255 motion. See id. at 1293-94.

A prisoner may not file a second or successive § 2255 motion without prior

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permission from this Court. 28 U.S.C. § 2255(h); United States v. Diaz-Clark, 292

F.3d 1310, 1316 (11th Cir. 2002). Absent such permission, the district court lacks

jurisdiction to address the § 2255 motion and must dismiss it. See Williams, 510

F.3d at 1294-95.

Lockhart’s Rule 60(b) motion does not allege any error in his earlier § 2255

proceedings. Rather, it merely raises several bases for relief from his conviction.

His Rule 60(b) motion is therefore properly construed as a second or successive

§ 2255 motion. See id. at 1293-94. Lockhart failed to obtain authorization from

this Court to file this successive § 2255 motion and, accordingly, the district court

correctly determined that it did not have jurisdiction.

AFFIRMED.