United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant, Richard Nelson's
untitled handwritten letter to this Court, which has been
construed as a Motion to Reconsider the undersigned's
previous order denying Nelson's Motion to Vacate pursuant
to § 2255. (Doc. 136). For the reasons set forth herein
below, Nelson's Motion (Doc. 136) is DENIED.
a jury trial held July 14-15, 2008, Nelson was found guilty
of enticement of a minor to engage in sexual activity and
commission of a felony offense involving a minor by a
registered sex offender, in violation of 18 U.S.C.
§§ 2422(b) and 2260A. On October 24, 2008, Nelson
was sentenced to 525 months in the custody of the Bureau of
Prisons. (Doc. 84). The same day, Nelson filed a Notice of
Appeal (Doc. 79) and on July 13, 2009, the Court of Appeals
for the Eleventh Circuit affirmed his convictions. (Doc.
107). On October 15, 2009, the United States Supreme Court
denied certiorari. (Doc. 108).
1, 2013, Nelson filed a “motion for leave to file out
of time, ” which the district court denied via an
endorsed order. (Docs. 114-115). Nelson appealed the order
denying his motion and on March 5, 2014 the Court of Appeals
concluded that Nelson's appeal was frivolous, explaining:
In 201, Nelson filed the motion at issue in this appeal.
In this self-styled “motion for leave to file out of
time, ” Nelson asked the district court for leave to
file out of time, on the grounds that he had only recently
learned how to use computers to conduct legal research and
had limited computer time. He did not state what sort of
motion or other filing he sought to untimely file, but, based
on the nature of the issues that he indicated he wished to
raise -- ineffective assistance of counsel, pretrial
publicity, and conflict of interest --he apparently intended
to file an untimely 28 U.S.C. § 2255 motion to vacate.
He also asked the court to issue subpoenas for the press
coverage of his criminal trial from two local news sources.
In an endorsed order, the court denied his self-styled
motion. The district court also denied his motion to proceed
IFP on appeal.
As an initial matter, Nelson has not filed a motion to
vacate, pursuant to § 2255, and does not need a
certificate of appealability to proceed on appeal.
See 28 U.S.C. § 2253(c). Thus, the only issue
before us is whether his appeal would be frivolous. See
Id. § 1915(e)(2)(8)(1). An action is frivolous if
it is without arguable merit either in law or fact.
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
Although Nelson admits that any post-conviction motion he
might file would be untimely, the district court properly
denied his request to untimely file a motion challenging his
convictions because he does not need the district court's
permission to file a motion to vacate, untimely or otherwise.
(Doc. 125 at 2). In August 2017, nearly seven years after his
conviction became final, Nelson filed his first motion
pursuant to § 2255. (Doc. 130).
October 2, 2017, United States Magistrate Judge Katherine
Nelson entered an Order directing Nelson to show cause why
his § 2255 motion was not time-barred. (Doc. 131).
Nelson responded to the show cause order on October 25, 2017,
and requested that this Court “have leniency due to
lack of knowledge regarding legal information, terminology,
cites, statutes, limitations, and research
abilities…” and indicated that he had only
reviewed the presentence report in its entirety a few months
prior to the filing of his § 2255 motion and that he had
difficulty researching and getting help with his motion while
incarcerated. (Doc. 132 at 2, 4-6). On December 12, 2107,
Magistrate Judge Nelson entered a Report and Recommendation
recommending that Nelson's petition be dismissed as
time-barred (Doc. 133) and on January 9, 2018, the Report and
Recommendation was adopted as the opinion of this Court (Doc.
134). The Order additionally denied Nelson a certificate of
appealability, as he was not entitled to appeal in forma
August 16, 2018, Nelson filed the instant untitled,
handwritten letter, which this Court has construed as a
Motion to Reconsider and/or Re-open his § 2255 pursuant
to Fed. R. Civ. Pro. 60(b). (Doc. 136). Therein, Nelson takes
issue with this Court's finding that he failed to state
or address why his motion was not time-barred and for
support, he points out that his previous filings did, in
fact, state why his motion was untimely, but should not be
time-barred. (Doc. 136, generally). Nelson then requests this
Court review the pleadings previously filed in this action
and re-open his case. In the alternative, Nelson requests
permission to file a second or successive § 2255 motion
“which includes the same issues as contained within the
first motion, which were undoubtedly overlooked or ignored by
[the] District Court.” (Id. at 7).
60(b) allows a party to seek relief from a final judgment,
and request reopening of his case, under a limited set of
circumstances including fraud, mistake, and newly discovered
evidence. Fed.R.Civ.P. Rule 60(b). However, there are
limitations on habeas petitioners' ability to rely on
Rule 60(b) motions to circumvent statutory restrictions on
second or successive § 2254 or § 2255 petitions.
The Eleventh Circuit has explained that “Federal Rule
of Civil Procedure 60 provides a basis, but only a limited
basis, for a party to seek relief from a final judgment in a
habeas case.” Williams v. Chatman, 510 F.3d
1290, 1293 (11th Cir. 2007).
result, before considering the merits of Petitioner's
motion, this Court must determine whether it has
jurisdiction, i.e., whether Nelson's Rule 60(b) motion is
truly a second or successive § 2255 petition. “If
Petitioner's 60(b) motion is not really a second or
successive habeas petition, the district court has
jurisdiction to consider the merits of the motion.”
Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th
Cir. 2007). The law is clear that “a Rule 60(b) motion
is to be treated as a successive habeas petition if it: (1)
seeks to add a new ground of relief; or (2) attacks the
federal court's previous resolution of a claim on the
merits.” Williams, 510 F.3d at 1293-94
(quoting Gonzalez v. Crosby, 545 U.S. 524, 532, 125
S.Ct. 2641, 162 L.Ed.2d 480 (2005)). By contrast, the Rule
60(b) motion is not to be regarded as a successive petition