Case: 14-10034   Date Filed: 08/14/2014   Page: 1 of 5


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-10034
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:12-cv-03007-WSD

LLOYD STREATER,


                                                          Petitioner-Appellant,


                                  versus


WARDEN, USP ATLANTA,


                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                            (August 14, 2014)

Before HULL, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Lloyd Streater, a federal prisoner proceeding pro se, appeals from the district

court’s dismissal of his petition for a writ of habeas corpus, pursuant to 28 U.S.C.

§ 2241, and the denial of his motion for reconsideration of that dismissal. For the

reasons that follow, we dismiss in part and affirm in part.

       In August 2012, Streater filed a § 2241 petition,1 arguing, in pertinent part,

that because the jury in his criminal trial never made a finding of drug quantity, his

total 480-month sentence exceeded the applicable statutory maximum under 21

U.S.C. § 841(b)(1)(c). As such, his sentences violated the Fifth and Sixth

Amendments, as well as the rule announced in Apprendi v. New Jersey, 

, 490 (2000) (holding that “[o]ther than the fact of 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.”).

       The government moved to dismiss the petition on the basis that Streater did

not qualify for the savings clause in 28 U.S.C. § 2255(e), and thus could not

proceed under § 2241. A magistrate judge recommended granting the motion to

dismiss because none of Streater’s arguments “rest[ed] upon a circuit law-busting,

retroactively applicable Supreme Court decision,” and Streater could, and did, raise


1
 Following a jury trial in Connecticut, Streater was convicted and sentenced to a total 480-
month term of imprisonment for conspiracy to possess with intent to distribute cocaine and crack
cocaine and possession with intent to distribute cocaine. In 2002, the Second Circuit affirmed
his convictions and sentences. Through counsel, Streater unsuccessfully sought relief in a 28
U.S.C. § 2255 motion. Because Streater is currently incarcerated in Atlanta, this is the proper
venue for his § 2241 petition.
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the same claims in his unsuccessful § 2255 motion. On August 19, 2013, the

district court overruled Streater’s objections, adopted the magistrate judge’s report

and recommendation, and dismissed his § 2241 petition.

      Streater then submitted a filing titled, “Motion for Re-Consideration

Informal Brief Pro Se Review,” which he signed on September 19, 2013. He

asserted that the district court overlooked his argument that his sentence exceeded

the applicable statutory maximum. The district court construed Streater’s filing as

a motion for relief under Fed.R.Civ.P. 60(b), and denied him relief on December

17, 2003. That same day, Streater filed a notice of appeal from the “final order

entered in this action on the 17th day of December 2013.”

      On appeal, Streater argues that the Second Circuit wrongly applied plain-

error review in his direct appeal and his appeal from his § 2255 motion.

Additionally, he maintains that he is entitled to relief under § 2241 because he was

sentenced in excess of the statutory maximum.

      As an initial matter, we must determine the scope of our review in the instant

appeal. See Green v. Drug Enforcement Admin., 

, 1300-01 (11th

Cir. 2010) (noting that the timely filing of a notice of appeal in a civil action is a

jurisdictional requirement, and we may not entertain an appeal that is out of time).

Streater filed his notice of appeal more than 60 days after the district court’s entry

of the August 19, 2013 order denying his § 2241 petition. See


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Fed.R.App.P.4(a)(1)(B). Additionally, Streater’s motion for reconsideration,

signed on September 19, 2013, did not toll the time for filing the notice of appeal

because his motion was filed more than 28 days after the district court denied his

underlying § 2241 petition. See Fed.R.App.P. 4(a)(4)(A) (iv) & (vi) (explaining

that the time period for filing a notice of appeal may be tolled by the filing of a

motion to alter or amend judgment under Fed.R.Civ.P. 59(e) or for relief under

Rule 60 if the motion is filed within 28 days of the entry of judgment).

      Therefore, the instant appeal is untimely as to the underlying order denying

Streater’s § 2241 petition. Moreover, review of the denial of Streater’s motion for

reconsideration does not give us authority to review the denial of his § 2241

petition. See Rice v. Ford Motor Co., 

, 918-19 (11th Cir. 1996)

(generally, our review of an order denying a motion for reconsideration is limited

to the denial of the motion for reconsideration, not the underlying judgment itself).

Thus, to the extent that Streater appeals from the dismissal of his § 2241 petition,

his appeal is dismissed for lack of jurisdiction.

      Streater’s notice of appeal, however, was timely as to the district court’s

denial of his motion for reconsideration. We review a district court’s denial of a

Rule 60(b) motion for abuse of discretion. M.G. v. St. Lucie Cnty. Sch. Bd., 

, 1262 (11th Cir. 2014). Under Rule 60(b), relief from final judgment

may be granted based on, among other things, “newly discovered evidence” that


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could not have been discovered earlier with reasonable diligence or “any other

reason” justifying relief. Fed.R.Civ.P. 60(b).

      To succeed on appeal, Streater “must demonstrate a justification so

compelling that the district court was required to vacate its order.” Cano v. Baker,

, 1342 (11th Cir. 2006) (quotation and alteration marks omitted).

Streater fails to do so. Instead he reiterates that he was sentenced in excess of the

applicable statutory maximum, the same argument he unsuccessfully raised in his

direct appeal and § 2255 motion. Accordingly, the district court did not abuse its

discretion in denying Streater’s motion for reconsideration.

      DISMISSED IN PART; AFFIRMED IN PART.




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