United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
LOVELACE BLACKBURN, UNITED STATES DISTRICT JUDGE
case is presently pending before the court on petitioner
Michael Lewis Ivory's Motions for Relief from Judgment of
August 22, 2008 Pursuant to Fed. Rule of Civil Proc. 60(b)(5)
or, in the Alternative, a Motion under § 2255(f)(2).
(Docs. 24, 25.) For the reasons set forth below, the court
finds that Ivory's Motions for Relief are
asks the court to reconsider its prior Order dismissing his
Motion to Vacate. (See doc. 16.) As support for his
Motions, he cites Fed.R.Civ.P. 60(b)(5), (see doc.
25 at 2, 10, 30), which states that “the court may
relieve a party . . . from a final judgment [because] 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
. . . .” Fed.R.Civ.P. 60(b)(5).
60(b)(5) does not apply in federal
habeas proceedings, at least the typical ones where the
judgment is an unconditional denial of habeas relief with no
injunctive relief.” Griffin v. Sec'y, Fla.
Dep't of Corr., 787 F.3d 1086, 1090 (11th Cir.
2015)(citing, inter alia, Agostini v. Felton, 521
U.S. 203, 239 (1997))(emphasis added). Therefore, Ivory's
Rule 60(b)(5) Motion, challenging this court's Order of
August 22, 2008, dismissing his habeas case, (see
doc. 16), is DENIED.
assuming Rule 60(b)(5) could apply to challenge the denial of
his claim for habeas relief, Ivory's motion, based on
Alleyne v. United States, 570 U.S. 99 (2013), would
be denied as without merit under binding Eleventh Circuit
caselaw, see United States v. Harris, 741 F.3d 1245,
1249-50 (11th Cir. 2014).
contends that this court's prior decision denying his
claim for habeas relief must be set aside because the jury in
his criminal case did not find the fact of his prior
convictions before the court enhanced his sentence. The
Alleyne decision “was based largely on [the
Supreme Court's] reading of its earlier opinion in
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000).” Harris, 741
F.3d at 1249. “Notably, however, Apprendi
itself drew a distinction between ‘normal' judicial
factfinding and the use of prior convictions as a factual
basis for sentence enhancement, ” holding
“‘Other than the fact of a prior
conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable
doubt.'” Id. (quoting Apprendi,
530 U.S. at 490)(emphasis added in Harris). The
Eleventh Circuit held: “Nothing in the facts or holding
of Alleyne indicates that it eliminated
Apprendi's exception for judicial findings of
prior convictions that increase a criminal penalty.”
Id. at 1249. Moreover, the court stated that the
question of “whether a sentence can be increased
because of prior convictions without a jury finding the fact
of those convictions . . . continues to be governed by
Almendarez-Torres v. United States, 523 U.S. 224,
226-27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), where
the Court determined that the fact of a prior conviction is
not an ‘element' that must be found by a
jury.” Harris, 741 F.3d at 1249 (citing
Alleyne, 570 U.S. at 111 n.1).
has not been overruled. Therefore, Ivory's motion, asking
the court to set aside his conviction because the fact of his
prior convictions were not found by the jury, is without
alternative to his Rule 60(b)(5) motion, Ivory asks the court
to consider his Alleyne claim pursuant to §
2255(f)(2). (See doc. 25 at 1, 10-11.) A motion that
seeks to add a new ground of relief is to be treated as a
successive habeas petition. Gonzalez v. Crosby, 545
U.S. 524, 532 (2005). This includes motions asserting
“a subsequent change in the substantive law.”
Id. at 531-32. Ivory had previously filed a Motion
to Vacate pursuant to § 2255, which did not include a
claim based on the failure of the jury to determine the fact
of his prior convictions. (See generally docs. 1 and
2.) Also, the Eleventh Circuit has not authorized Ivory to
file a successive habeas petition. “Without
authorization, the district court lacks jurisdiction to
consider a second or successive petition.” United
States v. Holt, 417 F.3d 1172, 1175 (11th Cir.
2005)(citing Farris v. United States, 333 F.3d 1211,
1216 (11th Cir. 2003)); see 28 U.S.C. §§
2244 (a)-(b); 2255(h).
Ivory is not authorized to file a successive petition
challenging his conviction and sentence under the rule of law
announced in Alleyne, the court lacks jurisdiction
to consider this claim under § 2255(f).
. . . [O]nce a federal court determines that it is without
subject matter jurisdiction, the court is powerless to
continue. As the Supreme Court long ago held in Ex parte
McCardle, 74 U.S. (7 Wall.) 506, 19 L.Ed. 264 (1868),
“[w]ithout jurisdiction the court cannot proceed at all
in any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the
court is that of announcing the fact and dismissing the
cause.” Id. at 514; see also Wernick v.
Mathews, 524 F.2d 543, 545 (5th Cir. 1975)(“[W]e
are not free to disregard the jurisdictional issue, for
without jurisdiction we are powerless to consider the
Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d
405, 410 (11th Cir. 1999).
court is without jurisdiction to consider Ivory's
unauthorized successive habeas petition; therefore, his
motion to consider his claim under § 2255(f)(2) is
foregoing reasons, Ivory's Motions for Relief pursuant to
Fed.R.Civ.P. 60(b)(5) or, in the Alternative, Under §
2255(f)(2), (docs. 24, 25), are DENIED.