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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. CASE NO. 4:90-cr-4051-WS-GRJ

NATHANIEL JAMES

_____________________________/

REPORT AND RECOMMENDATION

This case is before the Court on ECF No. 765, Petitioner’s Motion

Seeking to Reopen His 28 § 2255 Petition Pursuant to Fed. R. Civ. P.

60(b)(6). Petitioner requests the Court to reopen his previously filed §

2255 motion arguing that extraordinary circumstances are present because

a court in the Southern District of Florida recently vacated Petitioner’s 1986

federal firearm conviction. For the following reasons, the undersigned

recommends that the motion be denied.

The primary problem with Petitioner’s motion is that the Court does

not jurisdiction to address the motion because Petitioner filed a notice of

appeal, ECF No. 761, appealing among other orders the Court’s order

denying Petitioner’s § 2255 motion. In Petitioner’s § 2255 motion Petitioner

argued that the vacation of his 1986 firearms conviction in the Southern
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District of Florida renders invalid the two level increase to Petitioner’s

offense level based upon Petitioner’s possession of a firearm. The Court

rejected this argument pointing out that the increase had nothing to do with

whether Petitioner’s possession of weapons was lawful or unlawful.

Petitioner’s current motion to reopen repeats and attempts to recycle the

identical argument, this time presenting the argument in the context of Rule

60(b). Because this identical issue is pending in Petitioner’s appeal this

Court does not have jurisdiction to address the motion.

Furthermore, even if the Court did have jurisdiction to address the

motion the motion is due to be denied because collateral attacks on the

legality of a federal sentence typically must be brought under § 2255. 

Darby v. Hawk–Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Courts must

look past the label of a motion in order to determine its actual legal effect

and must treat the motion according to its legal effect, rather than its formal

name. United States v. Jordan, 915 F.2d 622, 624–25 (11th Cir. 1990). 

Rule 60(b) motions cannot be used to “evade the second or successive

petition bar . . . by either adding a new ground for relief or attacking the

federal court's previous rejection of a claim on the merits.” Gilbert, 640

F.3d 1293, 1323 (11 Cir. 2011) (holding that the rule announced in th

Case No: 4:90-cr-4051-WS-GRJ
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Gonzalez v. Crosby, 545 U.S. 524 (2005), which decided that state

prisoners could not circumvent the bar on successive habeas petitions by

filing Rule 60(b) motions, applies equally to federal prisoners). Therefore,

when a federal prisoner seeks to “assert or reassert a claim for relief,

instead of pointing out a defect in the integrity of the earlier § 2255 motion

preceding in his case . . . his motion is the equivalent of a second or

successive motion.” Id.

In this case, it is clear that the instant motion is the “equivalent of a

second or successive motion.” Id. Because Defendant was denied

collateral relief previously under § 2255, he is barred from seeking such

relief in this Court absent prior certification from the Eleventh Circuit. 28

U.S.C. §§ 2255(h), 2244(b)(3). There is nothing in the record that reflects

that Defendant has been granted leave by the Eleventh Circuit to file a

second or successive motion to vacate, and thus this Court lacks the

requisite authorization to entertain the claims raised in the instant motion.

Accordingly, because the Court does not have jurisdiction to address

Defendant’s motion the motion should be denied summarily.

 Based on the foregoing, it is respectfully RECOMMENDED:

Petitioner’s Motion Seeking to Reopen His 28 § 2255 Petition

Case No: 4:90-cr-4051-WS-GRJ
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Pursuant to Fed. R. Civ. P. 60(b)(6) should be DENIED. 

IN CHAMBERS this 22nd day of August 2017. 

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations must be filed

within fourteen (14) days after being served a copy thereof. Any different

deadline that may appear on the electronic docket is for the court’s internal use

only, and does not control. A copy of objections shall be served upon all other

parties. If a party fails to object to the magistrate judge's findings or

recommendations as to any particular claim or issue contained in a report and

recommendation, that party waives the right to challenge on appeal the district

court's order based on the unobjected-to factual and legal conclusions. See 11th

Cir. Rule 3-1; 28 U.S.C. § 636.

Case No: 4:90-cr-4051-WS-GRJ