United States District Court, M.D. Alabama, Eastern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
the court is Tony Terrell Moses, Sr.'s motion for relief
from judgment under Rule 60(b)(4) & (6) of the Federal
Rules of Civil Procedure. Doc. # 2. Moses asks the court to
set aside its September 2, 2014 judgment denying the §
2255 motion he filed in July 2011. For the reasons indicated
below, Moses' instant motion is due to be dismissed as a
successive § 2255 motion filed without the required
appellate court authorization.
2009 Moses pleaded guilty to robbery of a credit union, in
violation of 18 U.S.C. § 2113(a) (Count 1); brandishing
a firearm in furtherance of the crime of violence set forth
in Count 1, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Count 2); robbery of a bank, in violation of 18 U.S.C.
§ 2113(a) (Count 3); and brandishing a firearm in
furtherance of the crime of violence set forth in Count 3, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 4).
See United States v. Moses, No. 3:08cr235-MHT (M.D.
Ala. 2009). After a sentencing hearing on September 18, 2009,
the district court sentenced Moses to 444 months in prison.
That sentence consisted of concurrent terms of 60 months'
imprisonment on Counts 1 and 3, a consecutive term of seven
years' imprisonment on Count 2, and another consecutive
term of 25 years' imprisonment on Count 4.
instant motion for relief from judgment under Rule 60(b)(4)
& (6), Moses asserts that the magistrate judge at his
change of plea hearing informed him that Count 4 of the
indictment, which charged him with violating 18 U.S.C. §
924(c), carried “a maximum punishment of not less than
seven years' imprisonment” when the
enhanced-penalty provisions of the statute required that his
conviction under Count 4, as a second § 924(c)
conviction, carry a mandatory consecutive sentence of not
less than 25 years.Doc. # 2 at 2-3. Moses suggests that this
statement by the magistrate judge induced him to plead guilty
and rendered his guilty plea involuntary and unknowing.
Id. at 3. He then argues that the district
judge's imposition of the consecutive 25-year term on
Count 4 showed that the district judge and magistrate judge
had differing interpretations of the penalty provisions of
§ 924(c), and imposing the consecutive 25-year term
therefore constituted “fraud or a scam” by the
two judges. Id.
faced with what purports to be a Rule 60(b) motion . . .
federal courts must determine if it really is such a motion
or if it is instead a second or successive application for
habeas relief in disguise.” Moreland v.
Robinson, 813 F.3d 315, 322 (6th Cir. 2016). When a
federal inmate brings a motion under Rule 60(b), the district
court may construe it as a 28 U.S.C. § 2255 motion and,
if applicable, treat it as an unauthorized second or
successive motion. See Galatolo v. United States,
394 Fed.Appx. 670, 671 (11th Cir. 2010). If the nominal Rule
60(b) motion is properly construed as a second or successive
§ 2255 motion, and the movant has failed to obtain
authorization from the court of appeals, the district court
lacks subject matter jurisdiction on the merits of any
Gonzalez v. Crosby, 545 U.S. 524 (2005), a Rule
60(b) motion is a second or successive § 2255 motion if
it contains a “claim.” See 545 U.S. at
530. For purposes of determining whether a motion is a §
2255 motion, a “claim” is an asserted ground for
relief attacking the underlying conviction or sentence,
or an attack on the district court's previous
merits resolution of any previous § 2255 claim.
Id. at 531-32. On the other hand, no
“claim” is asserted “when a Rule 60(b)
motion attacks, not the substance of the federal court's
resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings.”
Id. at 532-33. A Rule 60(b) motion can properly be
used to attack a true “defect in the integrity of the
federal habeas proceedings, ” id. at 532, or
to “assert[ ] that a previous [habeas] ruling which
precluded a merits determination was in error, ”
id. at 532 n.4. Courts should not treat such a Rule
60 motion as a successive § 2255 motion. Id. at
532-33. Such motions can be ruled on by the district court
without the pre-certification from the court of appeals
ordinarily required for a second or successive § 2255
motion. Id. at 538; see Galatolo, 394
Fed.Appx. at 672.
argument in his nominal Rule 60(b) motion constitutes a claim
attacking his underlying conviction and sentence. It is not
an argument that, in the end, impugns the integrity of this
court's ruling denying his first § 2255 motion or
challenges the court's application of a procedural rule
to preclude a merits ruling on any claim presented in his
first § 2255 motion. Moses' first § 2255 motion
did not contain a claim that the magistrate judge induced him
to plead guilty by telling him that Count 4 of the indictment
carried a maximum punishment of not less than seven
years' imprisonment. Moses first presented such a claim
to this court in a prior self-styled Rule 60(b) motion he
filed in September 2018. Like that motion, his instant
“Rule 60(b) motion” is actually a second or
successive § 2255 motion, because it asserts a ground
for relief that constitutes a “claim” under
Gonzalez-i.e., a ground for relief that, at bottom,
attacks his underlying conviction and sentence.
tries to pay lip service to the requirement that a true Rule
60(b) motion point to some defect in the integrity of prior
habeas proceedings by arguing that this court's denial of
relief in his previous § 2255 actions indicates an
“illicit and tireless intent to cover up [the
court's] own wrongdoing.” Doc. # 2 at 6. However,
as already noted, Moses' first § 2255 motion
contained no claim that the magistrate judge induced him to
plead guilty by telling him that Count 4 of the indictment
carried a maximum punishment of not less than seven
years' imprisonment, and his prior nominal Rule 60(b)
motion constituted a successive § 2255 motion where he
was attempting to assert (for the first time) this new claim
that was not asserted in his first § 2255 motion. The
instant nominal Rule 60(b) motion constitutes little more
than another attempt by Moses to assert the same new claim
not asserted in his first § 2255 motion.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that, to file a second or
successive § 2255 motion in the district court, the
movant must first move in the appropriate court of appeals
for an order authorizing the district court to consider the
motion. See 28 U.S.C. § 2244(b)(3)(A). The
appellate court, in turn, must certify that the second or
successive § 2255 motion contains “(1) newly
discovered evidence that, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder
would have found the movant guilty of the offense; or (2) a
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable.” See 28 U.S.C. § 2255(h). A
district court lacks the jurisdiction to consider a
successive § 2255 motion where the movant has failed to
obtain permission from the appellate court to file a
successive motion. See, e.g., Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003).
has not obtained prior authorization from the Eleventh
Circuit Court of Appeals to file a successive § 2255
motion. This court therefore lacks jurisdiction to consider
the merits, and the motion should be dismissed on this
ground. Farris, 333 F.3d at 1216.
it is the RECOMMENDATION of the Magistrate Judge that
Moses' instant motion (Doc. # 2), which constitutes a
successive § 2255 motion, be summarily dismissed because
Moses has not received permission from ...