Case: 19-10047 Date Filed: 11/01/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10047 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:12-cv-23909-UU, 1:07-cr-20534-UU-5
VIVENS DELORME,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(November 1, 2019)
Before MARCUS, WILLIAM PRYOR and BRANCH, Circuit Judges.
PER CURIAM:
Vivens Delorme, a federal prisoner proceeding pro se, appeals the district
court’s denial of his self-styled motion for “Collateral Consequence” on the grounds Case: 19-10047 Date Filed: 11/01/2019 Page: 2 of 6
that it was an unauthorized second or successive motion to vacate his convictions
and sentence under 28 U.S.C. § 2255. The government has moved for summary
affirmance and to stay the briefing schedule.
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
We review questions of the district court’s subject matter jurisdiction de novo.
United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). “We may affirm
for any reason supported by the record, even if not relied upon by the district court.”
Id. (quotation marks omitted). “Pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A prisoner in federal custody may file a motion to vacate, set aside, or correct
his sentence by asserting “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
1 This Court is bound by cases decided by the former Fifth Circuit before October 1, 1981. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 2 Case: 19-10047 Date Filed: 11/01/2019 Page: 3 of 6
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
In order to file a second or successive § 2255 motion, a prisoner must first obtain
authorization from our Court and must allege either newly discovered evidence or
“a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Without
authorization from our Court, the district court lacks jurisdiction to consider a second
or successive § 2255 motion. Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003).
Typically, collateral attacks on the validity of a federal conviction or sentence
must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365
(11th Cir. 2003). Challenges to the execution of a sentence, rather than to its validity,
are properly brought under § 2241. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d
1348, 1352 (11th Cir. 2008). Typically, a petitioner who has filed a previous § 2255
motion may not circumvent the restriction on successive § 2255 motions simply by
filing a petition under § 2241. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1092 (11th Cir. 2017) (en banc). However, the “saving clause” of §
2255 permits a federal prisoner to file a habeas petition under § 2241 if the petitioner
establishes that the remedy provided under § 2255 is inadequate or ineffective to test
the legality of his detention. 28 U.S.C. § 2255(e); McCarthan, 851 F.3d at 1081.
3 Case: 19-10047 Date Filed: 11/01/2019 Page: 4 of 6
“The petitioner bears the burden of establishing that the remedy by motion was
inadequate or ineffective to test the legality of his detention.” McCarthan, 851 F.3d
at 1081 (quotation marks omitted).
Rule 60(b) provides an avenue for a petitioner to seek relief from a final civil
judgment on several narrowly defined grounds. Fed. R. Civ. P. 60(b). Rule 60(b)
has a limited application in habeas proceedings and may not be used to circumvent
the prohibition on filing a successive § 2255 motion without permission from our
Court. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). A Rule
60(b) motion is properly treated as a successive § 2255 motion if it: “(1) “seeks to
add a new ground of relief; or (2) attacks the federal court's previous resolution of a
claim on the merits.” See Williams, 510 F.3d at 1293-94 (quotation marks omitted).
A Rule 60(b) motion is not treated as a successive § 2255 motion if it attacks the
integrity of the prior federal habeas proceedings, rather than the substance of the
court’s resolution of the claim on its merits. See id. at 1294.
Delorme previously filed a § 2255 motion that was denied with prejudice.
Although his current motion that is the subject of this appeal was not styled as a
§ 2255 motion, the district court properly construed it as such. Delorme stated, both
in his motion and in his brief on appeal, that he was attacking the validity of his
convictions, which is not the proper use of a Rule 60(b) motion in a habeas case.
See Williams, 510 F.3d at 1293-94. Moreover, Delorme’s reiteration of the claims
4 Case: 19-10047 Date Filed: 11/01/2019 Page: 5 of 6
he raised in his initial § 2255 motion further evinces his intent to challenge the
validity of his convictions, and to challenge the resolution of his initial § 2255
proceedings, rather than to challenge the integrity of his initial § 2255 proceedings.
See id. Similarly, to the extent Delorme alleges that he seeks to “reopen” his initial
§ 2255 proceedings, he has not argued that there were any procedural errors with
Free access — add to your briefcase to read the full text and ask questions with AI
Case: 19-10047 Date Filed: 11/01/2019 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10047 Non-Argument Calendar ________________________
D.C. Docket Nos. 1:12-cv-23909-UU, 1:07-cr-20534-UU-5
VIVENS DELORME,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(November 1, 2019)
Before MARCUS, WILLIAM PRYOR and BRANCH, Circuit Judges.
PER CURIAM:
Vivens Delorme, a federal prisoner proceeding pro se, appeals the district
court’s denial of his self-styled motion for “Collateral Consequence” on the grounds Case: 19-10047 Date Filed: 11/01/2019 Page: 2 of 6
that it was an unauthorized second or successive motion to vacate his convictions
and sentence under 28 U.S.C. § 2255. The government has moved for summary
affirmance and to stay the briefing schedule.
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
We review questions of the district court’s subject matter jurisdiction de novo.
United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008). “We may affirm
for any reason supported by the record, even if not relied upon by the district court.”
Id. (quotation marks omitted). “Pro se pleadings are held to a less stringent standard
than pleadings drafted by attorneys and will, therefore, be liberally construed.”
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A prisoner in federal custody may file a motion to vacate, set aside, or correct
his sentence by asserting “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction
1 This Court is bound by cases decided by the former Fifth Circuit before October 1, 1981. Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 2 Case: 19-10047 Date Filed: 11/01/2019 Page: 3 of 6
to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
In order to file a second or successive § 2255 motion, a prisoner must first obtain
authorization from our Court and must allege either newly discovered evidence or
“a new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Without
authorization from our Court, the district court lacks jurisdiction to consider a second
or successive § 2255 motion. Farris v. United States, 333 F.3d 1211, 1216 (11th
Cir. 2003).
Typically, collateral attacks on the validity of a federal conviction or sentence
must be brought under 28 U.S.C. § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365
(11th Cir. 2003). Challenges to the execution of a sentence, rather than to its validity,
are properly brought under § 2241. Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d
1348, 1352 (11th Cir. 2008). Typically, a petitioner who has filed a previous § 2255
motion may not circumvent the restriction on successive § 2255 motions simply by
filing a petition under § 2241. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1092 (11th Cir. 2017) (en banc). However, the “saving clause” of §
2255 permits a federal prisoner to file a habeas petition under § 2241 if the petitioner
establishes that the remedy provided under § 2255 is inadequate or ineffective to test
the legality of his detention. 28 U.S.C. § 2255(e); McCarthan, 851 F.3d at 1081.
3 Case: 19-10047 Date Filed: 11/01/2019 Page: 4 of 6
“The petitioner bears the burden of establishing that the remedy by motion was
inadequate or ineffective to test the legality of his detention.” McCarthan, 851 F.3d
at 1081 (quotation marks omitted).
Rule 60(b) provides an avenue for a petitioner to seek relief from a final civil
judgment on several narrowly defined grounds. Fed. R. Civ. P. 60(b). Rule 60(b)
has a limited application in habeas proceedings and may not be used to circumvent
the prohibition on filing a successive § 2255 motion without permission from our
Court. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). A Rule
60(b) motion is properly treated as a successive § 2255 motion if it: “(1) “seeks to
add a new ground of relief; or (2) attacks the federal court's previous resolution of a
claim on the merits.” See Williams, 510 F.3d at 1293-94 (quotation marks omitted).
A Rule 60(b) motion is not treated as a successive § 2255 motion if it attacks the
integrity of the prior federal habeas proceedings, rather than the substance of the
court’s resolution of the claim on its merits. See id. at 1294.
Delorme previously filed a § 2255 motion that was denied with prejudice.
Although his current motion that is the subject of this appeal was not styled as a
§ 2255 motion, the district court properly construed it as such. Delorme stated, both
in his motion and in his brief on appeal, that he was attacking the validity of his
convictions, which is not the proper use of a Rule 60(b) motion in a habeas case.
See Williams, 510 F.3d at 1293-94. Moreover, Delorme’s reiteration of the claims
4 Case: 19-10047 Date Filed: 11/01/2019 Page: 5 of 6
he raised in his initial § 2255 motion further evinces his intent to challenge the
validity of his convictions, and to challenge the resolution of his initial § 2255
proceedings, rather than to challenge the integrity of his initial § 2255 proceedings.
See id. Similarly, to the extent Delorme alleges that he seeks to “reopen” his initial
§ 2255 proceedings, he has not argued that there were any procedural errors with
those proceedings, which is the proper use of a Rule 60(b) motion in habeas
proceedings. See id. at 1294 (stating that a Rule 60(b) motion is not treated as a
successive habeas motion if it attacks the integrity of prior federal habeas
proceedings).
To the extent Delorme’s mentions of § 2241 can be construed as an intent to
bring his claims under that statute instead, his motion would still be properly
construed as a second or successive § 2255 motion. Because Delorme’s claims
attack the validity of his convictions and sentence, they are cognizable under § 2255.
See Sawyer, 326 F.3d at 1365. Delorme has not raised any claims attacking the
execution of his sentence, which is the typical use of a § 2241 petition. See Antonelli,
542 F.3d at 1352. Delorme may not use a § 2241 petition to circumvent the ban on
second or successive § 2255 motions, and he has not alleged that his claims satisfy
the saving clause of § 2255(e), though it is his burden to do so. See McCarthan, 851
F.3d at 1081, 1092.
5 Case: 19-10047 Date Filed: 11/01/2019 Page: 6 of 6
Thus, because Delorme’s motion was properly construed as a § 2255 motion,
and he previously filed a § 2255 motion that was denied on the merits, he was
required to obtain authorization from our Court before he filed his second § 2255
motion. See 28 U.S.C. § 2255(h). As he failed to do so, the district court should
have determined that it lacked jurisdiction to consider his second or successive
§ 2255 motion and dismissed it without prejudice. See Farris, 333 F.3d at 1216.
Instead, here, the district court denied Delorme’s motion. Nonetheless, we may
affirm on any ground supported by the record, and because Delorme would be
required to seek permission from our Court to file another § 2255 motion regardless,
the district court’s denial will not prevent him from seeking further relief. See 28
U.S.C. § 2255(h); see also Al-Arian, 514 F.3d at 1189.
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 Transp., Inc.,
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.