FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14482

Non-Argument Calendar

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D. C. Docket No. 99-00186-CR-5-CC-1

JOHNNY TORRES,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(September 24, 2009)

Before CARNES, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

Federal prisoner Johnny Torres, proceeding pro se, appeals the district
court’s denial of his motion seeking relief from judgment under Federal Rule of

Civil Procedure 60(b)(5) or (6). The district court found that Torres’ Rule 60(b)

motion was an impermissibly successive 28 U.S.C. § 2255 motion to vacate

pursuant to Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005). The court

also deemed the motion untimely because it was filed twenty-two months after

Torres’ § 2255 motion was denied. Torres argues that because the court did not

address during his § 2255 proceedings his argument that two probation-related

criminal history points should have been eliminated when the court corrected his

sentence, his Rule 60(b) motion reasserting that argument was not a successive

attack on the court’s previous resolution of the issue. He also argues that his

motion was not untimely because extended court proceedings justified any delay.

We review de novo whether a district court has subject matter jurisdiction to

consider a Rule 60(b) motion. Williams v. Chatman, 510 F.3d 1290, 1293 (11th

Cir. 2007). Rule 60(b) provides:

On motion and just terms, the court may relieve a party or its legal

representative from a final judgment, order, or proceeding for the

following reasons:

. . .

(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)(5), (6).

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In Gonzalez, the Supreme Court held that a Rule 60(b) motion may be

treated as a successive § 2254 habeas petition when it seeks to add a new ground

for relief or attacks a federal court’s previous resolution of a claim on the merits.

545 U.S. at 532, 125 S. Ct. at 2648; see also Gonzalez v. Sec’y Dep’t of Corr., 366

F.3d 1253, 1262 (11th Cir. 2004) (“In the context of certificates of appealability

and Rule 60(b) motions, we apply 28 U.S.C. § 2254 and § 2255 cases

interchangeably.”). A Rule 60(b) motion is not a successive habeas petition,

however, if it attacks only “some defect in the integrity of the federal habeas

proceedings.” Gonzalez, 545 U.S. at 532, 125 S. Ct. at 2648. A Rule 60(b) motion

that qualifies as a second or successive habeas petition must comply with the three

requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Williams, 510 F.3d at 1294.

Under AEDPA,

any claim that has already been adjudicated in a previous petition

must be dismissed. Second, any claim that has not already been

adjudicated must be dismissed unless it relies on either a new and

retroactive rule of constitutional law or new facts showing a high

probability of actual innocence. Third, before the district court may

accept a successive petition for filing, the court of appeals must

determine that it presents a claim not previously raised that is

sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence

provisions.

Gonzalez, 545 U.S. at 529–30, 125 S. Ct. 2646 (citations omitted). When a Rule

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60(b) motion is treated as a successive habeas petition, then, a defendant must ask

us for an order authorizing the district court to consider it. Williams, 510 F.3d at

1295. Without that authorization, the district court lacks subject matter

jurisdiction. Id.

Torres first raised his probation-related criminal history point argument in

his reply to the government’s response to his § 2255 motion. And contrary to

Torres’ assertion to us now, the district court did address it: The court specifically

noted that it had considered Torres’ reply and had weighed “the merits and

demerits” of the parties’ positions in finding for the government. Torres’ Rule

60(b) motion did not attack “some defect in the integrity” of his § 2255

proceeding, Gonzalez, 545 U.S. at 532, 125 S. Ct. at 2648, but simply reasserted

the same argument he had offered in his § 2255 reply. Torres’ Rule 60(b) motion

was thus a successive motion to vacate. Because we did not authorize the district

court to consider Torres’ successive motion, that court lacked jurisdiction to decide

it. Accordingly, we vacate the district court’s order denying Torres’ Rule 60(b)

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motion and remand with instructions to dismiss the motion for lack of jurisdiction.

VACATED and REMANDED.

 We do not decide whether Torres’ Rule 60(b) motion was timely filed because, even if 1

it was, it would still be an impermissible successive motion to vacate and the district court would

not have been authorized to hear it. 

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