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1

 The Secretary of the Florida Department of Corrections was named as

Respondent throughout the original habeas corpus proceedings. James McDonough

recently succeeded James Crosby as Secretary for the Department of Corrections, and

is automatically substituted as Respondent. Fed.R.Civ.P. 25(d).

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

WILTON AMOS ROSS,

Petitioner,

vs. Case No. 4:90cv40141-MP/WCS

JAMES MCDONOUGH,1

Respondent.

 /

REPORT AND RECOMMENDATION ON MOTION FOR RELIEF FROM JUDGMENT

This cause is before the court on Petitioner's motion for relief from judgment and

"memorandum of law in support of second motion for writ of habeas corpus." Doc. 177. 

Petitioner relies on Fed.R.Civ.P. 60(b), subsections (1), (2), and (6), and 28 U.S.C. §

2254. Id., pp. 1, 7-8. Petitioner also references 28 U.S.C. § 2244(B)(i),(ii), a subsection

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2

 In the referenced pages, Petitioner also claims violations of Brady v. Maryland,

373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United States, 405

U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), in the context of Dennis Harwood's

Case No. 4:90cv40141-MP/WCS

which does not exist; presumably he means § 2244(b)(2)(B)(i) and (ii). Id., p. 1. He

also cites § 2244(b)(3)(a). Id., p. 2.

Due to the age of the case, the file is in federal archives. The electronic docket

entries begin with doc. 102. With the exception of the current motion, none of the

documents were scanned, and citations to those documents are based on the docket

entries. 

Counsel was appointed for Petitioner, he was permitted discovery and services

of an expert, and an evidentiary hearing was held on August 22 and 23, 1994. Docs.

103, 105, 111, 117, 118, and 127. Relief was denied on recommendation of the

undersigned. Docs. 153 and 157. Judgment was entered on April 12, 1995. Doc. 158. 

The judgment was affirmed. Doc. 175. 

In his Rule 60(b) motion, Petitioner claims that he is entitled to relief based on

newly discovered DNA evidence of an unidentified female, not available at the time of

his § 2254 hearing, which establishes his innocence. See doc. 177, pp. 2-4, 10-11. As

it affects the prior § 2254 judgment, Petitioner claims the newly discovered DNA

demonstrates that this court's resolution of his prior petition was "tainted" because

based on facts the State knew or should have known were false, and the facts were

false because different results have been reached by testing and the test results in 1983

were different than test results on the same evidence in 2002. Id., pp. 3-4, 16-17, 21-

27.2

 For relief, Petitioner seeks an evidentiary hearing to determine the identity of the

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testimony at the criminal trial. He asserts that in addition to showing his innocence, the

new DNA evidence lends additional support to these claims. 

Case No. 4:90cv40141-MP/WCS

unidentified DNA donor, to decide which DNA results are accurate, and to grant other

appropriate relief. Id., p. 28. 

Given the prior § 2254 proceedings, Petitioner must obtain authorization from the

Eleventh Circuit before filing a second or successive § 2254 motion. § 2254 Rule 9

("[b]efore presenting a second or successive petition, the petitioner must obtain an order

from the appropriate court of appeals authorizing the district court to consider the

petition as required by 28 U.S.C. § 2244(b)(3) and (4)."); § 2244(b)(3)(A) ("[b]efore a

second or successive application . . . 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."). For authorization to be granted on the basis of newly

discovered evidence which could not have been discovered previously with due

diligence, Petitioner must show that "the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying offense." § 2244(b)(2)(B)(i) and (ii). 

Whether or not authorization should be granted under the statute is determined

by the court of appeals. Petitioner has not obtained authorization for filing a second or

second § 2254 petition, and the unauthorized petition must be summarily dismissed. 

In Gonzalez v. Crosby, 545 U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the

Court explained the difference between a true Rule 60(b) motion and an unauthorized

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Case No. 4:90cv40141-MP/WCS

second or successive § 2254 petition. A "claim" for relief is not present in a true Rule

60(b) motion, which instead "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," and should not be treated as a successive filing. Id., at 2648 (footnote

omitted). The Rule 60(b) motion in Gonzalez challenged only the district court's statute

of limitations ruling (based on a Supreme Court case decided after that ruling), and so

was not the equivalent of a second or successive petition. 125 S.Ct. at 2650. 

On the other hand, a Rule 60(b) motion containing one or more "claims" for relief,

i.e., "an asserted federal basis for relief from a . . . judgment of conviction," is essentially

a successive petition. 125 S.Ct. at 2647 (citations omitted). 

A motion can also be said to bring a "claim" if it attacks the federal court's

previous resolution of a claim on the merits, since alleging that the court

erred in denying habeas relief on the merits is effectively indistinguishable

from alleging that the movant is, under the substantive provisions of the

statutes, entitled to habeas relief. 

Id., at 2648 (footnote omitted, emphasis by the Court). 

Whether it is alleged that the newly discovered evidence affects the court's prior

resolution of the § 2254 petition on the merits, or that it establishes innocence,

Petitioner has clearly set forth a "claim" for relief for purposes of Gonzalez. This is in

substance a second or successive petition for writ of habeas corpus, and should be

summarily dismissed as such. 

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Case No. 4:90cv40141-MP/WCS

It is therefore respectfully RECOMMENDED that Petitioner's motion for relief

from judgment, doc. 177, be SUMMARILY DISMISSED.

IN CHAMBERS at Tallahassee, Florida, on March 14, 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.

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