Levert v. United States, 061008 FED11, 07-14254

Docket Nº:07-14254
Opinion Judge:PER CURIAM
Party Name:ANDREW LEVERT, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.
Judge Panel:Before MARCUS, PRYOR and FAY, Circuit Judges.
Case Date:June 10, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

ANDREW LEVERT, Petitioner-Appellant,


UNITED STATES OF AMERICA, Respondent-Appellee.

No. 07-14254

United States Court of Appeals, Eleventh Circuit

June 10, 2008


Appeal from the United States District Court for the Northern District of Alabama, D. C. Docket Nos. 04-08007-CV-LSC-S & 01-00164-CR-N-S

Before MARCUS, PRYOR and FAY, Circuit Judges.


Andrew Levert, a federal prisoner proceeding pro se, appeals the denial of his motion for handwriting analysis. On appeal, Levert argues that the district court abused its discretion in denying his motion, asserting that there was insufficient evidence to support his conviction in light of the fact that his purported signature on a waiver-of-rights form was, in fact, a forgery. Levert contends that, because the signature was forged, his conviction must be vacated because it was obtained in violation of his constitutional rights. For the reasons set forth more fully below, we vacate and remand to the district court for further proceedings in order to allow the court to correct its order and dismiss the motion for lack of jurisdiction.

We will examine questions regarding a district court's jurisdiction over an action sua sponte, even when the district court does not address those jurisdictional issues. Blue Cross & Blue Shield of Alabama v. Sanders, 137 F.3d 1347, 1351 (11th Cir. 1998); United States v. Alabama, 791 F.2d 1450, 1454 (11th Cir. 1985). Where a district court lacked jurisdiction, we have jurisdiction only for the limited purpose of correcting the district court's error in entertaining the suit. Boyd v. Homes of Legend, Inc., 188 F.3d 1294, 1298 (11th Cir. 1999).

Before a federal prisoner may file a second or successive motion under § 2255, the prisoner must obtain an order from the appropriate court of appeals, authorizing the district court to consider the motion. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); In re Blackshire, 98 F.3d 1293, 1293 (11th Cir. 1996). Without authorization, the district court lacks jurisdiction to consider a second or successive petition. Hill v. Hopper, 112 F.3d 1088, 1089 (11th Cir. 1997). The gatekeeping requirements of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.No. 104-132, 110 Stat. 1214 (1996), cannot be avoided by relabeling a claim as something other than a § 2255 motion. Felker v. Turpin, 101 F.3d 657, 661 (11th Cir. 1996).


To continue reading