United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
Before
the Court is Gregory Lewis Davis's self-styled motion for
relief pursuant to Rule 60(b)(6) of the Federal Rules of
Civil Procedure, by which Davis challenges his 180-month
sentence imposed in 2009 under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). (Doc. 2). For
the reasons indicated below, Davis's motion is due to be
dismissed as a successive § 2255 motion filed without
the required appellate court authorization.
II.
DISCUSSION
In
December 2008, Davis pleaded guilty to possession of a
firearm as a convicted felony, in violation of 18 U.S.C.
§ 922(g)(1). See United States v. Davis, No.
2:07-CR-12-MHT (M.D. Ala. 2009). After a sentencing hearing
in July 2009, the district court sentenced Davis under the
ACCA to 180 months in prison. The Eleventh Circuit dismissed
Davis's direct appeal as untimely filed, and in September
2011, Davis filed a 28 U.S.C. § 2255 motion challenging
his conviction and sentence. See Civil Action No.
2:11-CV-760- MEF. This Court denied that § 2255 motion
in February 2014, finding that Davis's claims for relief
lacked merit. The Eleventh Circuit denied Davis's motion
for a certificate of appealability in June 2014, finding that
reasonable jurists would not debate this Court's denial
of § 2255 relief as to any of Davis's claims.
In his
instant motion for relief pursuant to Rule 60(b)(6), Davis
asserts that he was erroneously sentenced under the ACCA
because the government failed to present sufficient proof
that three prior drug convictions the district court relied
on in applying the ACCA were temporally
distinct.[1] As a consequence, he says, he did not have
the requisite number of qualifying convictions to be
sentenced under the ACCA. See (Doc. 2).
Rule
60(b) of the Federal Rules of Civil Procedure allows a party
to move for relief from a final judgment in a civil case on
the following grounds: (1) mistake, inadvertence, surprise,
or excusable neglect; (2) newly discovered evidence that,
with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment
that has been reversed or vacated; or applying it
prospectively is no longer equitable; or (6) any other reason
that justifies relief. Fed.R.Civ.P. 60(b). Rule 60(b)
“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).
“[W]hen
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
claims. Id.
Under
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.”[2] 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.
Davis'
argument in his nominal Rule 60(b)(6) motion constitutes a
claim attacking his underlying sentence. It is not an
argument that 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. Indeed, Davis raised the same claim he now asserts in
his original § 2255 motion, and that claim was addressed
on the merits and denied. The instant nominal Rule 60(b)(6)
motion constitutes little more than a second attempt by Davis
to obtain a favorable merits ruling on an already denied
claim.
The
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). Davis 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.
III.
CONCLUSION
Accordingly,
it is the RECOMMENDATION of the Magistrate Judge that
Davis's instant motion (Doc. 2), which constitutes a
successive § 2255 motion, be summarily DISMISSED because
Davis has not received permission from the appellate court to
file a second or successive § 2255 motion. It is further
ORDERED that the parties shall file any objections to this
Recommendation on or before June 11, 2019. A
party must specifically identify the factual findings and
legal conclusions in the Recommendation to which objection is
made; frivolous, conclusive, or general objections will not
be considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under 28
U.S.C. § 636(b)(1) will bar a party from a de
novo determination by the District Court of legal and
factual issues covered in the Recommendation and waives the
right of the party to challenge on appeal the District
Court's order based on unobjected to factual and ...