Yency Nunez v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 26, 2021
• Docket: 20-11955
• Status: Unpublished

Opinion

USCA11 Case: 20-11955 Date Filed: 05/26/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11955 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:17-cv-20440-JEM; 1:13-cr-20295-JEM-6

YENCY NUNEZ,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee. ________________________

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

(May 26, 2021)

Before WILSON, ROSENBAUM and MARCUS, Circuit Judges.

PER CURIAM:

Yency Nuñez, a counseled prisoner serving a 135-month sentence for a

violation of the Maritime Drug Law Enforcement Act (“MDLEA”), appeals the

district court’s denial of his 28 U.S.C. § 2255 motion, in which he argued that the USCA11 Case: 20-11955 Date Filed: 05/26/2021 Page: 2 of 10

record of his underlying criminal conviction did not establish jurisdiction under the

MDLEA and his trial and appellate counsel were ineffective for failing to raise the

issue. On appeal, Nuñez argues that the district court erred by conducting an

evidentiary hearing in his § 2255 proceedings to determine whether subject matter

jurisdiction existed in his criminal case. After careful review, we affirm.

In a § 2255 proceeding, we review legal conclusions de novo and findings of

fact for clear error. Spencer v. United States, 773 F.3d 1132, 1137 (11th Cir. 2014)

(en banc). The federal habeas statute provides that upon the filing of a § 2255

motion, a district court “shall . . . grant a prompt hearing . . . [u]nless the motion and

the files and records of the case conclusively show that the prisoner is entitled to no

relief.” 28 U.S.C. § 2255(b). We review the decision to hold a hearing for abuse of

discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002).

The scope of appellate review in § 2255 cases is limited to the issues specified

in the certificate of appealability (“COA”). Kuenzel v. Allen, 488 F.3d 1341, 1343

(11th Cir. 2007). While we may sua sponte expand a COA under “exceptional

circumstances,” an appellant granted a COA on one issue cannot simply brief other

issues to compel this Court to address them. Dell v. United States, 710 F.3d 1267,

1272 (11th Cir. 2013). A party abandons an issue on appeal by failing to prominently

raise it in his initial brief, by only raising it in a perfunctory manner without

supporting arguments and authority, or by making only “passing references to it that

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are background to other arguments or [are] buried within other arguments, or both.”

United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019) (quotation omitted).

This applies to issues included in the COA that are not briefed or argued on appeal.

See Jones v. Campbell, 436 F.3d 1285, 1303 (11th Cir. 2006).

The nature of a § 2255 motion is that of a civil matter. Burgess v. United

States, 874 F.3d 1292, 1296 (11th Cir. 2017). Consequently, § 2255 motions are

governed by the Federal Rules of Civil Procedure and, to the extent the practice of

§ 2255 proceedings is not specified in a federal statute, the Rules Governing § 2255

Proceedings for the U.S. District Courts (“§ 2255 Rules”). Id. The § 2255 Rules

allow a district court to direct the parties to expand the record by filing additional

relevant materials, including letters predating the filing of the motion, documents,

and exhibits. § 2255 Rule 7(a), (b). The court then reviews the motion, answer, and

any material submitted under Rule 7 to determine whether an evidentiary hearing is

warranted. § 2255 Rule 8(a). A court may refer a motion to a magistrate judge to

conduct hearings and file proposed findings of facts and recommendations for

disposition, which the court may accept, reject, or modify. § 2255 Rule 8(b).

“Habeas corpus has long been available to attack convictions and sentences

entered by a court without jurisdiction.” United States v. Addonizio, 442 U.S. 178,

185 (1979); see 28 U.S.C. § 2255(a) (providing relief from a federal sentence if “the

court was without jurisdiction” to impose it). While a habeas proceeding generally

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cannot “do service for an appeal,” a challenge to a court’s jurisdiction is an

exception. Sunal v. Large, 332 U.S. 174, 178 (1947); Bowen v. Johnston, 306 U.S.

19, 26 (1939) (“[T]he remedy of habeas corpus may be needed to release the prisoner

from a punishment imposed by a court manifestly without jurisdiction to pass

judgment.”). In a habeas appeal, “[a] jurisdictional defect is one that strip[s] the

court of its power to act and ma[kes] its judgment void” and, thus, “a judgment

tainted by a jurisdictional defect must be reversed.” McCoy v. United States, 266

F.3d 1245, 1249 (11th Cir. 2001) (quotation omitted); Harris v. United States, 149

F.3d 1304, 1309 (11th Cir. 1998) (reversing and remanding for resentencing where

the district court lacked jurisdiction to impose an enhanced sentence), abrogated on

other grounds by United States v. DiFalco, 837 F.3d 1207, 1216 (11th Cir. 2016)

(“[O]ur decisions [holding] that [21 U.S.C.] § 851 imposes a jurisdictional limit on

a district court’s authority [to enhance a sentence] have been undermined to the point

of abrogation by subsequent decisions of the Supreme Court.”).

In Harris, a prisoner filed a § 2255 motion attacking his sentence on the

ground that the district court had lacked jurisdiction to impose an enhanced sentence.

149 F.3d at 1305-06. At the time, our precedent held that a court lacked jurisdiction

to enhance a sentence based on a prior conviction unless the government strictly

complied with the procedural requirements of 21 U.S.C. § 851(a), and the facts of

Harris’s case showed that the district court had lacked jurisdiction to impose his

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enhanced sentence. Id. at 1306-07. While Harris had failed to object to the

enhancement on jurisdictional grounds before pleading guilty and had not filed a

direct appeal, we held that jurisdictional claims could not be procedurally defaulted,

and reversed and remanded his case for resentencing. Id. at 1303, 1308-09.

The MDLEA prohibits any person from knowingly or intentionally possessing

with intent to manufacture or distribute a controlled substance on board a vessel

subject to the jurisdiction of the United States, or conspiring to do the same. 46

U.S.C. §§ 70503(a)(1), 70506(b). A “vessel subject to the jurisdiction of the United

States” includes “a vessel in the territorial waters of a foreign nation if the nation

consents to the enforcement of United States law by the United States.” Id.

§ 70502(c)(1). Notably, under the MDLEA, “[j]urisdiction of the United States with

respect to a vessel” is “not an element of an offense”; rather, “[j]urisdictional issues

arising under [the MDLEA] are preliminary questions of law to be determined solely

by the trial judge.” Id. § 70504(a). We’ve interpreted the “on board a vessel subject

to the jurisdiction of the United States” phrase of the MDLEA as a congressionally

imposed limit on courts’ subject matter jurisdiction. United States v. De La Garza,

516 F.3d 1266, 1271 (11th Cir. 2008). The government bears the burden of proving

that the statutory requirements of MDLEA subject matter jurisdiction are met.

United States v. Tinoco, 304 F.3d 1088, 1114 (11th Cir. 2002).

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In Tinoco, we ruled that the MDLEA “unambiguously mandates that the

jurisdictional requirement be treated only as a question of subject matter jurisdiction

for the court to decide.” Id. at 1106 (11th Cir. 2002) (applying the predecessor to §

70504(a), which had very similar language). As we explained, jurisdiction was not

“a traditional element, or otherwise an essential ingredient, of a criminal offense,”

so Congress’s removal of this issue from the jury’s consideration did not offend a

defendant’s due process or jury trial rights. Id. at 1107-12. In reaching our holding

-- that it was constitutional for Congress to define the MDLEA’s jurisdictional

requirement as a non-element of the crime -- we cited Apprendi v. New Jersey,

which held that other than a prior conviction, “any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt,” 530 U.S. 466, 490 (2000). See Tinoco, 304

F.3d at 1098. Thus, “the unique proscription upon legislative power in defining

crimes that was set forth in Apprendi . . . is not applicable here.” Id. at 1107.

Since Tinoco, we’ve repeatedly confirmed that the MDLEA’s jurisdictional

requirement is not an element of an MDLEA offense that must be decided by a jury.

See United States v. Iguaran, 821 F.3d 1335, 1336 (11th Cir. 2016) (describing the

MDLEA’s jurisdictional requirement that a defendant be on board a vessel “subject

to the jurisdiction of the United States . . . as a congressionally imposed limit on

courts’ subject matter jurisdiction, akin to the amount-in-controversy requirement

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contained in 28 U.S.C. § 1332”) (quotation omitted); United States v. Cruickshank,

837 F.3d 1182, 1192 (11th Cir. 2016) (“[T]he [MDLEA’s] jurisdictional

requirement is not an element of the offense, need not be determined by a jury, and

does not violate the Due Process Clause or the Sixth Amendment.”); United States

v. Estupinan, 453 F.3d 1336, 1339 (11th Cir. 2006) (holding that the MDLEA does

not violate due process and the right to a jury trial by removing the jurisdictional

inquiry from the jury); United States v. Rendon, 354 F.3d 1320, 1328 (11th Cir.

2003) (rejecting the defendant’s argument that “subject matter jurisdiction is an

element of the charged crimes . . . to be decided by a jury” as foreclosed by Tinoco).

In Iguaran, we allowed a defendant to challenge the district court’s subject

matter jurisdiction under the MDLEA -- on the ground that the subject vessel was

not subject to the jurisdiction of the United States -- for the first time on appeal,

because subject matter jurisdiction is a question of law that we review de novo and

can be raised at any time. 821 F.3d at 1336. Finding that the government needed to

“preliminarily show that the conspiracy’s vessel was, when apprehended, subject to

the jurisdiction of the United States,” and that the record in the case did not establish

a basis for subject matter jurisdiction, we vacated and remanded. Id. at 1336-38

(explaining that “[w]hen a party’s failure to challenge the district court’s jurisdiction

is at least partially responsible for the lack of a developed record, . . . the proper

course of action . . . is to remand the case to the district court for factual findings”)

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(quotation omitted). We advised that after both parties had the opportunity on

remand to present evidence about whether the vessel was subject to the jurisdiction

of the United States, the district court was to decide whether the government carried

its burden as to jurisdiction, and if so, to reinstate the defendant’s conviction. Id.

In United States v. Hernandez, a defendant argued on direct appeal that under

the MDLEA, the government had to have jurisdiction over the subject vessel before

the commission of the underlying offense. 864 F.3d 1292, 1297, 1303 (11th Cir.

2017). We held that the post-offense certification, which established the United

States’ jurisdiction, eliminated his timing argument because, to obtain jurisdiction

over a MDLEA prosecution, the government need only show that the MDLEA’s

statutory requirements were met. Id. at 1303-04.

And in United States v. Phillips, we held that when a district court finds that

an out-of-time appeal in a criminal case was warranted as the remedy in a § 2255

proceeding, it should: (1) vacate the original judgment of conviction; (2) reimpose

the same sentence; and (3) advise the defendant of his right to appeal and the time

for filing a notice of appeal from the reimposed sentence. 225 F.3d 1198, 1201 (11th

Cir. 2000). We later noted that the remedy outlined in Phillips “put the defendant

back in the position he would have been in had his lawyer filed a timely notice of

appeal,” i.e., the position had the error not occurred. McIver v. United States, 307

F.3d 1327, 1331 (11th Cir. 2002) (quotation omitted, alteration accepted).

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Under our prior panel precedent rule, “a prior panel’s holding is binding on

all subsequent panels unless and until it is overruled or undermined to the point of

abrogation by the Supreme Court or by this court sitting en banc.” United States v.

Archer, 531 F.3d 1347, 1352 (11th Cir. 2008). The intervening decisions must

“actually abrogate or directly conflict with, as opposed to merely weaken, the

holding of the prior panel.” United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir.

2009). There is no exception to the rule based upon an “overlooked reason” or

“perceived defect in the prior panel’s reasoning or analysis as it relates to the law in

existence at that time.” Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001).

Here, Nuñez argues that the district court should not have held an evidentiary

hearing during his § 2255 proceedings to allow the government to present evidence

to establish jurisdiction in his underlying criminal case. We disagree. For starters,

a district court “shall . . . grant a prompt hearing” when a petitioner files a § 2255

motion, “[u]nless the motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief,” 28 U.S.C. § 2255(b), and we cannot say that

the record of Nuñez’s criminal case conclusively showed that he was not entitled to

relief. Moreover, the procedure followed by the district court is in line with our

previous decisions. In Iguaran, we allowed the government to present new evidence

to establish the court’s MDLEA jurisdiction after judgment was entered, and in

Hernandez, we held that the time at which the government proved jurisdiction did

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not matter, so long as it showed that the MDLEA’s statutory requirements were met.

Indeed, our Court in Iguaran expressly permitted the government to belatedly present

evidence of the court’s jurisdiction, even while noting that the MDLEA provided

that jurisdiction was a threshold matter that the government had to “preliminarily

show.” 821 F.3d at 1336.

To the extent Nuñez claims that Iguaran and Tinoco were wrongly decided

and conflict with Apprendi, his argument is foreclosed by our prior precedent rule -

- especially since both cases cited to Apprendi and we’ve repeatedly affirmed

Tinoco. Similarly, Nuñez’s arguments challenging the prior precedent rule itself are

also foreclosed, because neither this Court sitting en banc nor the Supreme Court

has overruled or undermined it to the point of abrogation. 1

Accordingly, because our prior precedent allows the government to present

evidence establishing MDLEA jurisdiction after a final judgment, the district court

did not err in allowing the government to do so in these § 2255 proceedings.

AFFIRMED.

1 Finally, we decline to consider any of Nuñez’s arguments that are outside the scope of the district court’s COA, including his double jeopardy argument. See Kuenzel, 488 F.3d at 1343. Nuñez also has abandoned the argument that his trial and appellate counsel were ineffective for failing to raise the issue of the court’s jurisdiction. See Corbett, 921 F.3d at 1043. 10