United States District Court, M.D. Alabama, Northern Division
RASHAD C. LEE, # 213823, Petitioner,
GWENDOLYN GIVENS, et al., Respondents.
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
the court is Alabama inmate Rashad C. Lee's self-styled
motion for relief from judgment under Rules 60(b)(4) and
60(d)(1)(3) of the Federal Rules of Civil Procedure. Doc. #
1. By his motion, Lee challenges his guilty plea conviction
for murder entered in the Circuit Court of Bullock County in
November 2000. He is serving a life sentence for that
court's records reflect that Lee has filed several prior
petitions for habeas corpus relief under 28 U.S.C. §
2254 challenging his murder conviction and life sentence. Lee
filed the first such § 2254 petition in this court on
September 30, 2005. See Lee v. Mitchem, Civil Action
No. 2:05cv968-WKW (M.D. Ala. 2006). In that action, this
court denied Lee relief and dismissed his claims with
prejudice, finding his petition to be time-barred under 28
U.S.C. §2244(d). Id., Docs. # 22, 26 & 27.
filed a second § 2254 petition in this court challenging
his murder conviction and life sentence on March 19, 2009.
See Lee v. Giles, Civil Action No. 2:09cv234-TMH
(M.D. Ala. 2009). This court dismissed that petition under
the provisions of 28 U.S.C. § 2244(b)(3)(A), because it
constituted a second or successive habeas petition filed
without the required authorization from the Eleventh Circuit
Court of Appeals. Id., Docs. # 5, 12 & 13.
filed a third habeas petition in this court on July 22, 2013.
See Lee v. Estes, Civil Action No. 2:13cv797-WHA
(M.D. Ala. 2013). Although Lee styled that petition as one
for relief under 28 U.S.C. § 2241, this court construed
the petition as one filed under § 2254, because it
attacked Lee's murder conviction and life sentence. The
court then dismissed that petition under the provisions of
§ 2244(b)(3)(A), because it constituted a successive
habeas petition filed without the required authorization of
the Eleventh Circuit Court of Appeals. Id., Docs. #
3, 5 & 6.
reasons that follow, the Magistrate Judge finds that
Lee's instant motion for relief from judgment under Rules
60(b)(4) and 60(d)(1)(3) of the Federal Rules of Civil
Procedure constitutes yet another successive petition for
habeas corpus relief under 28 U.S.C. § 2254, which
should be summarily dismissed because Lee has not obtained
the required appellate court authorization to file a
successive habeas application.
to Lee, he is seeking relief under Rules 60(b)(4) and
60(d)(1)(3) of the Federal Rules of Civil
Procedure. “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). Rule 60, like all Federal Rules of Civil Procedure,
applies only to civil actions and proceedings in the United
States District Court. See Fed.R.Civ.P. 1. Rule 60
provides no vehicle for relief from a judgment in a criminal
case. See United States v. Fair, 326 F.3d 1317 (11th
Cir. 2003); United States v. Mosavi, 138 F.3d 1365,
1366 (11th Cir. 1998).
pro se inmate, like Lee, brings a motion under Rule
60, the district court may appropriately construe it as a 28
U.S.C. § 2254 habeas petition, and, if applicable, treat
it as an unauthorized second or successive petition. See
Williams, 510 F.3d at 1293-95. If construed as a second
or successive petition, the district court lacks subject
matter jurisdiction on the merits of any claims in the
petition. Id. at 1295.
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005), the
Supreme Court provided guidance on how prisoner claims in a
Rule 60 motion should be construed where the prisoner has
filed a previous § 2254 petition that has been denied.
If the nominal Rule 60 motion seeks to add a new ground for
relief from the underlying judgment of conviction or
sentence, or otherwise attacks the district court's
resolution of any previous § 2254 claims on the merits,
then the court should construe the Rule 60 motion as a second
or successive § 2254 petition attacking the conviction
and sentence, and dismiss it accordingly. Id.;
see also Williams, 510 F.3d at 1293-94. By contrast,
when a Rule 60 motion attacks some defect in the integrity of
the prior federal habeas proceedings, courts should not treat
the Rule 60 motion as a successive § 2254 petition.
Gonzalez, 545 U.S. at 532-33; see also
Williams, 510 F.3d at 1294. Such motions can be ruled on
by the district court without the precertification from the
court of appeals ordinarily required for a second or
successive § 2254 petition. Gonzalez, 545 U.S.
instant motion, Lee argues that he was indicted for
intentional murder under § 13A-6-2(a)(1), Ala. Code
1975, but the trial court accepted his guilty plea to the
“nonexistent offense” of first-degree murder.
Doc. # 1 at 2-7. Therefore, he says, his conviction and
sentence are void. Id. Relatedly, Lee asserts that
the transcript of his guilty plea colloquy included in the
record on his direct appeal was falsified by state officers.
Id. at 19-23. The grounds asserted by Lee challenge
the validity of his state conviction and sentence. They do
not point to or allege a defect in the integrity of this
court's prior judgment denying his original § 2254
petition. Because Lee only asserts claims attacking his
conviction and sentence, this court must construe his
self-styled Rule 60 motion as a successive § 2254
petition. See Gonzalez, 545 U.S. at 531-32.
28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or
successive application permitted by this section is filed in
the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C.
§ 2244(b)(3)(A). “A motion in the court of appeals
for an order authorizing the district court to consider a
second or successive application shall be determined by a
three-judge panel of the court of appeals” and may be
granted “only if [the assigned panel of judges]
determines that the application makes a prima facie showing
that the application satisfies the requirements of [28 U.S.C.
§ 2244(b)(1) or (b)(2)].” 28 U.S.C. §
2244(b)(3)(B) & (C).
instant § 2254 petition is a successive petition subject
to the limitations of § 2244(b). Lee furnishes no
certification from the Eleventh Circuit Court of Appeals
authorizing this court to proceed on his successive petition
for habeas corpus relief. “Because this undertaking [is
a successive] habeas corpus petition and because [Lee] had no
permission from [the Eleventh Circuit] to file a [successive]
habeas petition, . . . the district court lack[s]
jurisdiction to grant the requested relief.”
Gilreath v. State Board of Pardons and Paroles, 273
F.3d 932, 933 (11th Cir. 2001). See Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003) (providing
that, without an order from the court of appeals authorizing