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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:92cr4013-WS

vs. Case No. 4:06cv31-WS/WCS

EGNATIUS JOHNSON,

Defendant.

 /

REPORT AND RECOMMENDATION ON RULE 60(b) MOTION

Defendant Johnson filed a "Request for Relief from the Judgment for Correction

of Structural Error, a Manifest Injustice, and Extraordinary Circumstances Pursuant to

Rule 60(b)(6), of the Federal Rules of Civil Procedure." Doc. 1689.

Defendant previously filed a 28 U.S.C. § 2255 motion which was summarily

dismissed with prejudice as untimely. Docs. 1235 (report and recommendation), 1239

(adopting order), 1268 (denying a certificate of appealability and leave to proceed in

forma pauperis on appeal) and 1296 (mandate of Eleventh Circuit). 

Defendant now seeks relief from his conviction and sentence, citing (inter alia)

Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435

(2000), Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403

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1

 Defendant actually asks that his judgment be vacated and the case be

remanded or ordered back to the district court for further proceedings. This court is the

district court, and it does not appear that Defendant intended to file his motion

elsewhere. Doc. 1689, p. 1 (referencing this court and case number in the style of the

motion). The request is construed as asking this court to vacate the judgment and to

hold further proceedings. 

2

 "[N]othing the Supreme Court said or did in [Castro v. United States, 540 U.S.

375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)] implies that the § 2244(b) restrictions can

be evaded by the simple expedient of labeling second or successive filings to be

something they are not." Gonzalez v. Secretary for the Dept. of Corrections, 366 F.3d

1253, 1277, n. 10 (11th Cir. 2004) (en banc); affirmed (using a different analysis) in

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

Case Nos. 4:92cr4013-WS and 4:06cv31-WS/WCS

(2004), and United States v. Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005). Defendant asks that the judgment be vacated and that further proceedings be

had to correct the error. Doc. 1689, pp. 15,18, 24-25.1

"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). 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 second or successive motion (or at least similar

enough to one) and therefore subject to the limitations on filing such motions. Gonzalez

v. Crosby, 545 U.S. , 125 S.Ct. 2641, 2647-48, 162 L.Ed.2d 480 (2005) (citations

omitted) (allowing Rule 60(b) to present new claims, a new rule of constitutional law, or

newly discovered facts, "would impermissibly circumvent the requirement that a

successive habeas petition be precertified by the court of appeals as falling within an

exception to the successive-petition bar. § 2244(b)(3)."). 

As the purported Rule 60(b) motion expressly seeks relief from the original

judgment, it should be construed as a second or successive § 2255 motion.2

 The

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Crosby, 437 F.3d 1290, 1294-95 and n. 6 (11th Cir. 2006) (noting that the Supreme

Court did not disturb the full en banc decision in Gonzalez). See also United States v.

Lloyd, 398 F.3d 978, 980 (7th Cir.2005) ("[a] captioning error in a successive collateral

proceeding cannot cost the prisoner any legal entitlement, so Castro's warn-and-allowwithdrawal approach does not apply."). 

Case Nos. 4:92cr4013-WS and 4:06cv31-WS/WCS

dismissal of the initial § 2255 motion as untimely "counts," and renders this a second or

successive motion. See, Villenueva v. United States, 346 F.3d 55, 59-61 (2d Cir. 2003),

cert. denied, 542 U.S. 928 (2004) (collecting cases, holding "that a habeas or § 2255

petition that is properly dismissed as time-barred under AEDPA constitutes an

adjudication on the merits for successive purposes."); Altman v. Benik, 337 F.3d 764,

766 (7th Cir. 2003) (holding "that a prior untimely petition does count because a statute

of limitations bar is not a curable technical or procedural deficiency but rather operates

as an irremediable defect barring consideration of the petitioner's substantive claims."). 

Compare Pavlovsky v. VanNatta, 431 F.3d 1063, 1064-65 (7th Cir. 2005) (noting the

general rule that dismissal as untimely is generally on the merits and bars relitigation,

but where previous § 2254 petition was dismissed expressly without prejudice as

untimely, the petitioner "may have been lulled into thinking he didn't have to appeal" the

dismissal).

Defendant must obtain an order from the court of appeals authorizing this court

to consider a second or successive motion. § 2255 (referencing § 2244); § 2255 Rule

9(b). Absent authorization, this court lacks jurisdiction to consider a second or

successive motion. 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) (2255 motion).

Finally, it is noted that the Supreme Court recently granted certiorari as to the

retroactive application of Blakely and Booker. Burton v. Waddington, 142 Fed. Appx.

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Case Nos. 4:92cr4013-WS and 4:06cv31-WS/WCS

297 (9th Cir. 2005) (not published in the Federal Reporter), cert. granted, S.Ct. ,

2006 WL 393368 (June 5, 2006). If and when a new rule of constitutional law,

previously unavailable, is "made retroactive to cases on collateral review by the

Supreme Court," leave for filing a second or successive motion is expressly authorized,

but such leave must still be obtained from the court of appeals. § 2255 (incorporating §

2244). If authorization for filing in this court is ever granted, Defendant's claim will most

likely be time barred. Dodd v. United States, 545 U.S. 353, , 125 S.Ct. 2478, 2483,

162 L.Ed.2d 343 (2005) ("because of the interplay between ¶¶ 8(2) and 6(3) [of § 2255],

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."). 

It is therefore respectfully RECOMMENDED that Defendant's Request for Relief

(doc. 1689) be SUMMARILY DENIED.

IN CHAMBERS at Tallahassee, Florida, on June 28, 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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