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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:96cr76-RH

vs. Case No. 4:06cv479-RH/WCS

JOE TRAVIS,

Defendant.

 /

REPORT AND RECOMMENDATION ON RULE 60(b) MOTION

Defendant filed a motion for relief pursuant to Fed.R.Civ.P. 60(b)(6), and a

supporting affidavit. Docs. 195 and 196. 

Defendant claims that he previously raised other issues by 28 U.S.C. § 2255

motion, but "has not previously raised in any prior proceeding the issues of actual

innocence and the specific aspects of counsel's ineffectiveness raised in this Rule 60(b)

motion." Doc. 195, pp. 3-4. He "seeks relief from a final judgment of conviction entered

. . . on May 29, 1997," which was "amended by reducing the sentence on April 28,

1998." Id., p. 4. He claims actual innocence of the conspiracy offense. Id., pp. 8-11. 

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1

 Certiorari was granted only as to Gonzalez, and the Supreme Court expressly

limited its opinion to the application of Rule 60 in habeas proceedings under 28 U.S.C. §

2254. Gonzalez, 125 S.Ct. at 2646, n. 3. The Eleventh Circuit's opinion (which was

affirmed but using a different analysis) addressed claims brought by two § 2254

petitioners (Gonzalez and Mobley) and one § 2255 movant (Lazo), and saw no material

difference between § § 2254 and 2255 for purposes of Rule 60. Gonzalez v. Secretary

for Dept. Of Corrections, 366 F.3d 1253, 1262 (11th Cir. 2004). Lazo, the only § 2255

movant, filed what was considered a second or successive motion "cross-dressed" as a

Rule 60(b) motion. 366 F.3d at 1262-63; see also 366 F.3d at 1287, n. 1 and 1306 (J.

Tjoflat, specially concurring in part and dissenting in part) (agreeing that the district

court lacked jurisdiction over Lazo's motion, "which was a second or successive motion

under 28 U.S.C. § 2255 disguised as a motion under Rule 60(b)," noting that the district

court should have therefore dismissed rather than denied it). Lazo did not seek

certiorari, and certiorari was denied without opinion as to Mobley. Mobley v. Schofield,

545 U.S. , 125 S.Ct. 965, 160 L.Ed.2d 902 (Mem) (2005). 

Case Nos. 4:96cr76-RH and 4:06cv479-RH/WCS

Defendant argues that he meets all requirements for filing a Rule 60(b)(6) motion

which is not deemed a second or successive § 2255 motion. Id., pp. 11-13, citing

Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). 

In the Rule 60(b) motion before the Supreme Court in Gonzalez, the petitioner

sought relief not from the criminal judgment, but from the judgment denying his 28

U.S.C. § 2254 petition as untimely. 545 U.S. at , 125 S.Ct. at 2641. That is not the

case here, as Defendant seeks relief from his criminal judgment. "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). See also Gonzalez, 545 U.S. at , 125 S.Ct. at 2646-50

(explaining the difference between a true Rule 60(b) motion which may proceed, from

one raising "claims" for relief which should be treated as a second or successive § 2254

petition).1

As set forth by previous report and recommendation, incorporated herein by

reference, Defendant has been denied § 2255 relief and must obtain authorization from

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Case Nos. 4:96cr76-RH and 4:06cv479-RH/WCS

the Eleventh Circuit before filing a second or successive motion. Doc. 192 (adopted by

the court and judgment entered on the docket on June 28, 2005, docs. 193 and 194). 

As set forth there, Defendant has previously attempted to file unauthorized second or

successive motions. Doc. 192, pp. 1-2 (referencing the record). 

As Defendant has not obtained authorization from the court of appeals, this court

still lacks jurisdiction to consider what is essentially a second or successive § 2255

motion. § 2255 (referencing § 2244); § 2255 Rule 9 (party must obtain authorization

from court of appeals before presenting a second or successive motion). 

It is therefore respectfully RECOMMENDED that the Rule 60(b) motion, doc.

195, be SUMMARILY DISMISSED as an unauthorized second or successive § 2255

motion.

IN CHAMBERS at Tallahassee, Florida, on December 26, 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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