United States v. Charles Llewlyn

U.S. Court of Appeals for the Eleventh Circuit
United States v. Charles Llewlyn, 146 F. App'x 474 (11th Cir. 2005)

United States v. Charles Llewlyn

Opinion

PER CURIAM:

Charles Llewlyn (“Llewlyn”), a federal prisoner proceeding pro se, appeals the district court’s denial of his motion to dismiss his indictment, filed pursuant to Fed. R.Crim.P. 12(b). On March 7, 2005, Llewlyn, proceeding pro se, filed a “Nunc Pro Tunc Motion to Dismiss Indictment Pursuant to Fed.R.Crim.P. 6(f) & 12(b), et. seq.,” asserting various defects in his indictment.

In the instant case, Llewlyn is using Fed.R.Crim.P. 12(b) to attack his conviction and sentence after this court affirmed this conviction and sentence on direct appeal, and his § 2255 motion was unsuccessful. Because Llewlyn’s motion was the functional equivalent of a successive motion to vacate, within the meaning of § 2244(b)(3)(A), and because he never obtained leave to file a successive motion, it was subject to dismissal for lack of jurisdiction. Felker v. Turpin, 101 F.3d 657, 660-61 (11th Cir. 1996); see also 28 U.S.C. § 2244(b)(requiring the dismissal of successive petitions for which no leave is obtained). As such, we vacate the judgment of the district court and remand with instructions to dismiss for lack of jurisdiction.

VACATED AND REMANDED.

Reference

Full Case Name
UNITED STATES of America, Plaintiff-Appellee, v. Charles LLEWLYN, A.K.A. Charles Llewylin, Defendant-Appellant
Status
Unpublished