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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:90cr4043-WS

vs. Case No. 4:05cv370-WS/WCS

ANTHONY PARKER, 

Defendant.

 /

REPORT AND RECOMMENDATION ON § 2255 AND RULE 60(b) MOTIONS

Defendant filed a 28 U.S.C. § 2255 motion, followed by a Fed.R.Civ.P. 60(b)

motion. Docs. 253 and 254. As noted by prior order, the file had been sent to federal

archives and older documents were not available for electronic viewing. Doc. 255. 

After a number of requests beginning November 1, 2005, the file was finally received

from federal archives on March 6, 2006. 

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1

 This court obtained the file from archives to confirm that this was indeed filed as

a § 2255 motion, rather than so characterized by the court, a not uncommon practice at

the time. See Castro v. United States, 540 U.S. 375, 382-383, 124 S.Ct. 786, 792, 157

L.Ed.2d 778 (2003) (if court does not warn litigant of intent to recharacterize and its

consequences, a motion recharacterized as a first § 2255 motion will not count for

purposes of applying "second or successive" provision). 

2

 Defendant had filed a notice of appeal both before and after adoption of the

report and recommendation. Docs. 209 and 223. 

Case Nos. 4:90cr4043-WS and 4:05cv370-WS/WCS

Prior Relevant History

Defendant, represented by counsel, previously filed a 28 U.S.C. § 2255 motion

and supporting memorandum. Docs. 180 and 181.1 The Government filed a response

and Defendant filed a reply. Docs. 185 and 188. Defendant filed a motion to

supplement, and the Government filed a response in opposition. Docs. 200 and 201. 

By report and recommendation entered on the docket on February 18, 1999, the

undersigned recommended that the § 2255 motion and the motion to supplement be

denied. Doc. 206. Defendant filed objections. Doc. 208. The recommendation was

adopted and the motions denied by order of the district judge entered on the docket on

March 19, 1999. Doc. 213. A certificate of appealability was denied for appeal by this

court and the court of appeals. Docs. 214 and 251.2

Legal Analysis

In the current § 2255 motion, Defendant raises a claim under United States v.

Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Doc. 253, also citing,

inter alia, 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). 

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3

 Anderson held that the Supreme Court has not made Booker retroactive on

collateral review for purposes of authorizing a second or successive § 2255 motion;

Varela held that, pursuant to Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103

L.Ed.2d 334 (1989), Booker does not apply retroactively even in the context of an initial

§ 2255 motion. Defendant's argument that Booker applies retroactively, doc. 253, pp.

17-33, is therefore foreclosed by binding precedent. Defendant's argument that Booker

may apply retroactively as a clarifying amendment to the Sentencing Guidelines, doc.

253, pp. 29-32, is also rejected. "Booker is a Supreme Court decision, not a

retroactively applicable guideline amendment by the Sentencing Commission." United

States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005) (concluding that Booker is

inapplicable to 18 U.S.C. § 3582(c)(2) motions). 

Case Nos. 4:90cr4043-WS and 4:05cv370-WS/WCS

Given the prior § 2255 proceedings, Defendant must obtain authorization from

the Eleventh Circuit before filing a second or successive § 2255 motion. § 2255

(referencing § 2244); § 2255 Rule 9 ("[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 has not obtained authorization for filing his motion. 

Indeed, after the § 2255 motion was filed in this court, the Eleventh Circuit denied

authorization for filing a second or successive motion raising a claim under United

States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), because

Booker has not been made retroactive on collateral review by the Supreme Court. Doc.

256, citing In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir. 2005). See also Varela

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

(2005).3 The § 2255 motion should therefore be summarily dismissed as an

unauthorized second or successive motion. 

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4

 Presumably Defendant's reference to the "prior judgment" is to that following

the § 2255 proceeding rather than the judgment of conviction. "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). 

Case Nos. 4:90cr4043-WS and 4:05cv370-WS/WCS

In Defendant's Rule 60(b) motion, he asks that the prior judgment4 be vacated in

light of Apprendi and related cases. Doc. 254, p. 1. He cites Gonzalez v. Crosby, 545

U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), and claims that he "is not attempting

to relitigate the merits of his claim, only the legal basis upon which it was dismissed." 

Id., p. 2. As explained in Gonzalez, 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 motion. 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). 

Defendant does not identify the portion of the previous decision at issue, but all

of Defendant's initial § 2255 claims were rejected on the merits. Doc. 206, pp. 4-16. 

The claim raised by motion to supplement, even if timely under the one year limitations

period of § 2255, was found to be meritless, so amendment would be futile. Id., pp. 16-

17. This is in contrast to the situation in Gonzalez, where a the Rule 60(b) motion

challenged only the prior ruling on the statute of limitations, and so was not the

equivalent of a second or successive petition. 125 S.Ct. at 2650. 

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5

 The Castro limitation on recharacterization of pleadings, noted supra, n. 1,

"does not extend beyond initial filings, and nothing the Supreme Court said or did in that

case 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 Dept. Of Corrections, 366 F.3d 1253, 1277, n. 10 (11th Cir. 2004) (en

banc), affirmed on other grounds Gonzalez v. Crosby, 545 U.S. , 125 S.Ct. 2641, 162

L.Ed.2d 480 (2005); see also Jackson v. Crosby, F.3d , 2006 WL 237143 (11th

Cir. February 2, 2006) at *3 and *5, n. 6 (noting that the Supreme Court did not disturb

the full en banc decision in Gonzalez).

6

 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.'" Dodd v. United States, 545 U.S. , 125 S.Ct. 2478, 2481, 160

L.Ed.2d 621 (2005). 125 S.Ct. at 2481 (quoting § 2255, other citation omitted). 

Defendant's conviction was affirmed in 1992. Doc. 145. The one year can also

commence 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. But this does not help Defendant, who "may take advantage of the date in the

first clause of ¶ 6(3) only if the conditions in the second clause are met." 125 S.Ct. at

2482. The rights recognized in Apprendi, Blakely, and Booker have not been made

retroactive on collateral review. 

Case Nos. 4:90cr4043-WS and 4:05cv370-WS/WCS

While Defendant asserts he is challenging the legal basis for dismissal and not

attempting to relitigate the merits, he asserts a change in the substantive law as applied

 in his § 2255 proceeding. The Rule 60(b) motion is essentially an unauthorized second

or successive § 2255 motion, and as such should be summarily dismissed. 5

Defendant asks that, if his Rule 60(b) motion is construed as a second or

successive pleading, then it be referred for filing in the court of appeals effective on the

date he initially mailed it. Doc. 254, pp. 2-3. This request should be denied, as the

Eleventh Circuit has already denied authorization for filing, Defendant may take an

appeal if he wishes to do so, and his successive § 2255 motion would be untimely

anyway.6

 Cf. Guenther v. Holt, 173 F.3d 1328, 1330-31 (11th Cir. 1999), cert. denied,

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Case Nos. 4:90cr4043-WS and 4:05cv370-WS/WCS

528 U.S. 1085 (2000) (not deciding "whether such a stay or a [28 U.S.C.] § 1631

transfer would be viable as an abstract matter, nor need we decide the relation back

issue," as transfer was not necessary in the interest of justice where petition was

indisputably time-barred) (footnote omitted). 

It is therefore respectfully RECOMMENDED that Defendant's § 2255 motion

(doc. 253) and his Rule 60(b) motion (doc. 254) both be SUMMARILY DISMISSED as

authorization for filing a second or successive § 2255 motion has not been granted by

the court of appeals. 

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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