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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:00cr46-RH

vs. Case No. 4:05cv445-RH/WCS

LEONARD CHARLES BROWN, 

Defendant.

 /

REPORT AND RECOMMENDATION TO DENY RULE 60(b)(6) MOTION

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

pursuant to Fed.R.Civ.P. 60(b). Doc. 114. Defendant seeks relief from the judgment of

September 21, 2004, denying his 28 U.S.C. § 2255 motion. Doc. 88 (judgment).

Adopting the report and recommendation of the undersigned, doc. 84, over Defendant's

objections, doc. 85, the § 2255 motion was denied. Doc. 87. 

The report and recommendation addressed, inter alia, counsel's alleged

ineffectiveness in failing to request a hearing on the motion to suppress, and

Defendant's claim that, by the time the falsity of the affidavit became apparent at trial, it

was too late to request a hearing under Franks v. Delaware, 438 U.S. 154, 156, 98

S.Ct. 2674, 2676, 57 L.Ed.2d 667 (1978). Doc. 84, pp. 1-2. Defendant had asserted

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Case Nos. 4:00cr46-RH and 4:05cv445-RH/WCS

that the testimony of Eugene Reed contradicted claims of law enforcement, and of

Government witnesses Charles Bright and Clarence Harrison. Id., pp. 2-4. As noted by

the undersigned, the fact that Reed's testimony was contradictory did not make the

testimony of Bright or Harrison false. Id., p. 4. 

In his objections, Defendant argued that Bright's veracity could have been

challenged in a Franks hearing. Doc. 85, pp. 1-2. Defendant argued that the jury found

the testimony of Bright and Harrison untrue by acquitting Defendant of counts one and

two, so Defendant was entitled to a Franks hearing, and this claim should have been

raised on direct appeal. Id., pp. 2-5. 

The report and recommendation was adopted over Defendant's objections. Doc.

88. Defendant filed a motion to alter or amend the judgment, asking for reconsideration

of denial of the § 2255 motion, and again asserting entitlement to a Franks hearing. 

Doc. 90. Defendant asserted that the court had overlooked his claim of deliberate

falsity by the affiant, Agent Desmond, as Defendant was not observed by any

surveillance agents. Id., p. 2. The motion was denied. Doc. 91. 

On appeal, a certificate of appealability and leave to appeal in forma pauperis

were denied by this court and the Eleventh Circuit. Docs. 95, 100, 107, and 111. 

In his current motion, Defendant contends that a Rule 60 motion is not

considered second or successive "so long as it attacks only the nonmerits aspects of

the court's decision." Doc. 114, p. 2, citing Gonzalez v. Crosby, 545 U.S. , 125 S.Ct.

2641, 162 L.Ed.2d 480 (2005). Defendant seeks relief from the prior ruling regarding

his ineffective assistance of counsel claim for failing to request a hearing on the motion

to suppress. Id. He claims that the undersigned erroneously relied on the testimony of

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1

 Relief was denied to Petitioner Gonzalez and the Eleventh Circuit denied a

certificate of appealability on April 6, 2000. 545 U.S. at , 125 S.Ct. at 2645. The

following November the Court issued its opinion in Artuz v. Bennett, 531 U.S. 4, 121

S.Ct. 361, 148 L.Ed.2d 213 (2000), on which Gonzalez relied in his Rule 60 motion. Id. 

Case Nos. 4:00cr46-RH and 4:05cv445-RH/WCS

Charles Bright rather than the affidavit of Agent Erin Desmond. Id. Defendant claims

that he could have shown that Desmond intentionally or recklessly included false

statements in applying for the search warrant, and that Desmond's statements were

contradicted by evidence presented at trial, but counsel failed to request a Franks

hearing. Id., pp. 2-4. Defendant "concludes that his counsel's failure to request a

Franks hearing clearly denied him the effective assistance of counsel and this Court's

misplacement of his argument, in his § 2255 motion, caused him to be denied entitled to

relief." Id., p. 4. 

The Gonzalez case, cited by Defendant as allowing this Rule 60(b) motion, was

before the Court in the context of a Rule 60(b)(6) motion seeking relief from dismissal of

a 28 U.S.C. § 2254 habeas corpus petition as untimely. 545 U.S. at , 125 S.Ct. at

2645. Relief under Rule 60(b)(6) was appropriate, it was argued, because a Supreme

Court opinion issued after the district court's ruling demonstrated that it was in error. 

Id.1 Because the Rule 60(b) motion challenged only the prior ruling on the statute of

limitations, it was not the equivalent of a second or successive petition. Id., at 2650. 

Even so, and assuming that the district court's determination of untimeliness was

incorrect, the Court found no "extraordinary circumstances" to justify relief under Rule

60(b)(6). Id.

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

judgment of conviction, on the other hand, is in substance a successive petition and

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2

 The Eleventh Circuit's opinion had addressed claims brought by two § 2254

petitioners (Gonzalez and Mobley) and one § 2255 movant (Lazo), and found 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) ("[w]hat we

say in this opinion about certificates of appealability and Rule 60(b) motions as they

relate to § 2254 proceedings applies equally to § 2255 proceedings, and vice versa."). 

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. Under the original Gonzalez opinion, the rationale

should apply equally in § 2255 proceedings. See also United States v. Terrell, 141 Fed.

Appx. 849, 851, 2005 WL 1672122, at *2 (11th Cir. 2005) (nonprecedential) (though

Gonzalez was decided in § 2254 context, "we believe that its holding and rational apply

equally to § 2255 . . . ."). 

Case Nos. 4:00cr46-RH and 4:05cv445-RH/WCS

should be treated accordingly. 125 S.Ct. at 2647 (applying this rationale in the context

of a Rule 60(b) motion seeking relief from a § 2254 judgment) (citations omitted).2 A

motion which adds a new ground for relief presents a "claim," as does a motion

presenting new evidence, or a purported change in substantive law. Id., at 2647-48. 

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). 

Defendant Brown here attacks the previous resolution of his § 2255 motion on

the merits, and his Rule 60 motion should be treated as a second or successive § 2255

motion. He must obtain authorization from the Eleventh Circuit before filing a second 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."). See

also Hubbard v. Campbell, 379 F.3d 1245, 1246 (11th Cir.), cert. denied, 125 S.Ct. 15

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Case Nos. 4:00cr46-RH and 4:05cv445-RH/WCS

(2004) (district court lacked jurisdiction to entertain second or successive petition, where

petitioner had not obtained authorization for filing it). 

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

from judgment pursuant to Rule 60(b), doc. 114, be SUMMARILY DISMISSED. 

IN CHAMBERS at Tallahassee, Florida, on January 5, 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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