Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

4:89cr4004-WS

vs. 4:06cv5-WS/WCS

CHARLES HUDSON,

Defendant.

 /

REPORT AND RECOMMENDATION ON MOTION FOR RELIEF FROM JUDGMENT

This cause is before the court on Defendant Hudson's "Motion for Relief from

Judgment or Order Pursuant to Federal Rule Civil Procedure 60(b)(1)(6) 'Mistake'

Gonzalez v. Crosby, US , No. 04-6432, June 23, 2005, and Incorporated

Memorandum of Law." Doc. 856. See Gonzalez v. Crosby, 545 U.S. , 125 S.Ct.

2641, 162 L.Ed.2d 480 (2005). Defendant then filed a "Timely Notice of Preservation of

Blakely/Booker Claim." Doc. 858. See United States v. Booker, 543 U.S. 220, 125

S.Ct. 738, 160 L.Ed.2d 621 (2005), Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000). 

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 1 of 6
Page 2 of 6

1

 The order denied Defendant's motion to recall or reconsider mandate or grant a

certificate of appealability and leave to amend to raise a claim under Blakely. Docs. 824

(motion) and 825 (order). Blakely was unrelated to the authorized second or successive

motion, which was based on newly discovered evidence: i.e., the state court's dismissal

of charges used to enhance Defendant's federal sentence. Doc. 818, p. 1. 

Case Nos. 4:89cr4004-WS and 4:06cv5-WS/WCS

Defendant previously filed a 28 U.S.C. § 2255 motion, which was denied with

prejudice and a certificate of appealability denied. Docs. 618, 627, 634, and 651. 

Defendant was granted authorization by the Eleventh Circuit to file a second or

successive § 2255 motion, and this court denied the motion as untimely. Docs. 818 and

821. A certificate of appealability was denied. Doc. 825.1

 

As Defendant has already been denied § 2255 relief, he must obtain

authorization from the Eleventh Circuit before filing a second (in this case, third) or

successive § 2255 motion. § 2255 (referencing § 2244); § 2255 Rule 9 (amended

effective December 1, 2004) ("[b]efore presenting a second or successive motion, the

moving party must obtain an order from the appropriate court of appeals authorizing the

district court to consider the motion, as required by 28 U.S.C. § 2255, para. 8."). 

Defendant quotes Gonzalez as holding that a Rule 60(b) motion is not

considered a second or successive 28 U.S.C. § 2254 habeas corpus petition if it does

not assert or reassert error in the conviction. Doc. 856, pp. 2-3. He contends "that in

recognition" of Apprendi, Blakely, and Booker, "that Rule 60(b) is the proper means to

permit the trial court to reconsider a petitioner's original mandatory guideline sentence

under the United States Sentencing Guidelines System." Id., p. 4. He claims that the

Booker opinion modified the guidelines as of November 1, 1987. Id. Defendant claims,

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 2 of 6
Page 3 of 6

Case Nos. 4:89cr4004-WS and 4:06cv5-WS/WCS

accordingly, that at the time of sentencing this court misunderstood the law to be that

the guidelines were mandatory rather than advisory. Id., p. 6. 

Defendant elaborates on the application to his case of Rule 60, Gonzalez, and

the Apprendi line of cases at pp. 6-14. He concludes:

that this Honorable Court made "mistakes" in constitutional dimensions in

petitioner's case that should and can be corrected pursuant to this Rule

60(b)(1)(6) motion and respectfully ask the court to correct this unjust and

unconstitutional sentence.

Id., p. 14. 

It is clear that Defendant seeks Rule 60 relief not from the prior § 2255 judgment,

but from the judgment of conviction and sentence. "Rule 60(b) simply does not provide

for relief from judgment in a criminal case." United States v. Mosavi, 138 F.3d 1365,

1366 (11th Cir. 1998); United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003)

(quoting Mosavi). 

To the extent this Rule 60(b) motion could be construed as seeking relief from a

judgment denying § 2255 relief, it should still be summarily dismissed. In this context, a

Rule 60(b) motion containing one or more "claims" for relief from the judgment of

conviction – whether a purported change in substantive law, a new ground for relief, or

challenging the prior resolution on the merits – is in substance a successive motion and

should be treated accordingly. Gonzalez, 125 S.Ct. at 2647-48 (2005) (in the context of

a Rule 60(b) motion seeking relief from prior denial of § 2254 petition) (citations

omitted). Defendant has not obtained authorization from the court of appeals for filing

his motion, and it is noted that authorization for filing a successive motion raising

Booker has been denied in this circuit. In re Anderson, 396 F.3d 1336, at 1339 (11th

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 3 of 6
Page 4 of 6

2

 Discussed in these cases and ahead is retroactive application on collateral

review, and § 2255 review is collateral review. In contrast, the Court in Booker

declared: "we must apply today's holdings – both the Sixth Amendment holding and our

remedial interpretation of the Sentencing Act – to all cases on direct review." 125 S.Ct.

at 769 (citations omitted, emphasis added). 

3

 Section 2255 recognizes a number of commencement dates for the one year

period. "In most cases, the operative date from which the limitation period is measured

will be the one identified in ¶ 6(1): 'the date on which the judgment of conviction

becomes final.'" 125 S.Ct. at 2481 (quoting § 2255, other citation omitted). 

Case Nos. 4:89cr4004-WS and 4:06cv5-WS/WCS

Cir. 2005) (denying leave to file successive motion as the Supreme Court has not made

Booker or Blakely retroactive on collateral review)2. See also Varela v. United States,

400 F.3d 864, 867 (11th Cir.), cert. denied, U.S. , 126 S.Ct. 312 (2005) (Blakely

and Booker do not apply retroactively on collateral review even when raised in an initial

§ 2255 motion). 

In his notice of preservation, Defendant gives notice of his intent to timely

preserve his right to relief if and when the Supreme Court declares Booker and other

cases retroactive on collateral review. Doc. 858. Defendant references Dodd v. United

States, 545 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Id., p. 2; doc. 856, p. 14. 

The Court in Dodd addressed the language of § 2255 ¶ 6(3), commencing the one year

limitations period for filing a § 2255 motion from "the date on which the right asserted

was initially recognized by the Supreme Court, if that right has been newly recognized

by the Supreme Court and made retroactively applicable to cases on collateral review." 

§ 2255, ¶ 6(3). 125 S.Ct. at 2481 (quoting the statute).3 The Court explained that

"Paragraph 6(3) identifies one date and one date only as the date from which the one 1-

year limitation period runs: 'the date on which the right asserted was initially recognized

by the Supreme Court.'" Id., at 2482 (emphasis in original). The second clause of ¶

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 4 of 6
Page 5 of 6

4

 Under that portion of § 2255, a second or successive motion based on "a new

rule of constitutional law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable," may be authorized by the court of appeals.

Case Nos. 4:89cr4004-WS and 4:06cv5-WS/WCS

6(3) limits application to rights "newly recognized" and "made retroactively applicable on

collateral review." Id.

That means that ¶ 6(3)'s date – "the date on which the right asserted was

initially recognized by the Supreme Court" – does not apply at all if the

conditions in the second clause – the right "has been newly recognized by

the Supreme Court and made retroactively applicable to cases on

collateral review" – have not been satisfied. As long as the conditions in

the second clause are satisfied so that ¶ 6(3) applies in the first place, that

clause has no impact whatsoever on the date from which the 1-year

limitation period in ¶ 6(3) begins to run. Thus, if this Court decides a case

recognizing a new right, a federal prisoner seeking to assert that right will

have one year from this Court's decision within which to file his § 2255

motion. He may take advantage of the date in the first clause of ¶ 6(3)

only if the conditions in the second clause are met.

Id. (emphasis added). 

The Court recognized that "because of the interplay between ¶ ¶ 8(2)[4

] and 6(3),

an applicant who files a second or successive motion seeking to take advantage of a

new rule of constitutional law will be time barred except in the rare case in which this

Court announces a new rule of constitutional law and makes it retroactive within one

year." Id., at 2483. 

Defendant Hudson is not entitled to take advantage of the first clause of ¶ 6(3) as

the conditions in the second clause have not been met. One year has passed since

Booker was decided on January 12, 2005, so it can be stated with certainty that this is

not "the rare case" in which a rule was both announced and made retroactive by the

Supreme Court within one year. To the extent Defendant's notice is construed as a

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 5 of 6
Page 6 of 6

Case Nos. 4:89cr4004-WS and 4:06cv5-WS/WCS

motion to preserve the issue so that Defendant will not be subject to the one year

limitations period of § 2255 in the future, it should be denied. 

It is therefore respectfully RECOMMENDED that Defendant Hudson's motion for

relief from judgment (doc. 856) be SUMMARILY DISMISSED as an unauthorized

second or successive § 2255 motion. It is further RECOMMENDED that Defendant's

notice for preservation of claim (doc. 858) be DENIED.

IN CHAMBERS at Tallahassee, Florida, on February 8, 2006.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 15 days after being served with a copy of this report and

recommendation. A party may respond to another party's objections within 10 days after

being served with a copy thereof. Failure to file specific objections limits the scope of

review of proposed factual findings and recommendations.

Case 4:89-cr-04004-WS-WCS Document 862 Filed 02/08/06 Page 6 of 6