[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

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No. 22-13353

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

WAYNE BURCKS,

a.k.a. Wayne Burkes, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:15-cr-60330-WPD-1

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2 Opinion of the Court 22-13353

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Before LAGOA, BRASHER, and BLACK, Circuit Judges.

PER CURIAM:

Wayne Burcks, a federal prisoner proceeding pro se, appeals 

the district court’s denial of his Federal Rule of Criminal Procedure

35 motion to correct an illegal sentence for lack of jurisdiction. He 

asserts the district court could not sua sponte raise the issue of its 

subject matter jurisdiction, the court erred when it denied his Rule 

35 motion, and the Government waived any opposition to his Rule 

35 motion by failing to object in the district court. The Government responds by moving for summary affirmance of the district 

court’s order denying Burcks’s Rule 35 motion and asserts the district court did not err in concluding it lacked jurisdiction to consider Burcks’s motion under both Rule 35, as it was untimely, and 

under 28 U.S.C. § 2255, as it was an unauthorized successive 

§ 2255 motion. 

The Government is entitled to summary affirmance of the 

district court’s order denying Burcks’s Rule 35 motion for a lack of 

subject matter jurisdiction because its position is clearly correct as 

a matter of law.1 Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 

1 We review de novo whether a district court had the authority to resentence 

the defendant under Rule 35(a) and § 2255. United States v. Sjeklocha, 

114 F.3d 1085, 1087 (11th Cir. 1997). 

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22-13353 Opinion of the Court 3

1162 (5th Cir. 1969)2 (stating summary disposition is appropriate, 

in part, 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”). 

First, Burcks’s Rule 35(a) motion was untimely as it was filed 

years after the district court imposed his sentence, which was far 

outside the 14-day window for filing a Rule 35(a) motion. See Fed. 

R. Crim. P. 35(a). The timely filing of a Rule 35(a) motion is a jurisdictional prerequisite, so the district court did not err when it 

found it lacked jurisdiction to consider Burcks’s untimely Rule 

35 motion. See United States v. Phillips, 597 F.3d 1190, 1196-97 

(11th Cir. 2010) (holding the time limitation in Rule 35(a) is jurisdictional, as there is no inherent authority for a district court to 

modify a sentence). 

Second, even construing Burcks’s motion as a § 2255 motion, the district court did not err in finding it lacked jurisdiction to 

consider it because he failed to obtain prior authorization from this 

Court to file a successive § 2255 motion. See Farris v. United 

States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“[T]o file a second 

or successive § 2255 motion, the movant must first file an application with the appropriate court of appeals for an order authorizing 

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), 

this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981. 

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4 Opinion of the Court 22-13353

the district court to consider it.”). Thus, the district court did not 

have the jurisdiction to consider his construed successive 

§ 2255 motion. Id. (“Without authorization, the district court lacks 

jurisdiction to consider a second or successive petition.”).

Burcks’s argument the district court erred when it sua 

sponte raised the issue of its subject matter jurisdiction over his 

motion is without merit because the district court had the duty to 

ensure it had subject matter jurisdiction and it was permitted to do 

so sua sponte. See Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th 

Cir. 2001) (stating a federal court “must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt 

about jurisdiction arises,” as it is “powerless to act beyond its statutory grant of subject matter jurisdiction”). Likewise, because subject matter jurisdiction cannot be waived, the Government did not 

waive the defense by failing to raise the issue below, and Burcks’s 

argument to the contrary fails. See United States v. De La Garza, 

516 F.3d 1266, 1271 (11th Cir. 2008) (stating subject matter jurisdiction cannot be waived). 

Therefore, we GRANT the government’s motion for summary affirmance of the district court’s denial of Burcks’s pro se Rule 

35 motion and DENY as moot its motion to stay the briefing schedule. 

AFFIRMED. 

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