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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

UNITED STATES OF AMERICA,

vs. Case No. 5:03cr42/MCR/CJK

WILLARD TIMOTHY CARROLL,

Defendant.

ORDER AND 

REPORT AND RECOMMENDATION

This cause is before the court upon defendant’s amended motion to reopen

judgment (doc. 107), filed pursuant to FEDERAL RULE OF CIVIL PROCEDURE 60(b). 

The government has filed a response in opposition (doc. 105). A previous order (doc.

111) ruling on the instant motion must be vacated, because a RULE 60(b) motion is

properly disposed of by report and recommendation. See, e.g., United States v.

Clarke, No. 4:92cr4013-WS, 2007 WL 3378392 (N.D. Fla. Nov. 13, 2007); United

States v. James, No. 4:90cr4051-WS, 2007 WL 2688528 (N.D. Fla. Sept. 11, 2007). 

The substance of the court’s determinations, however, has not been altered, except

that the time for objections to the proposed findings and recommendations made

herein shall run from the date of this report and recommendation. 

On January 13, 2004, defendant pleaded guilty to counts I and III of a

superseding indictment charging himwith conspiracy to distribute methamphetamine

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(count I) and possession of a firearm in furtherance of a drug trafficking offense

(count III). (Doc. 28, 1-2) Based upon prior state felony convictions for possession

of methamphetamine, defendant was subject to a mandatory minimum term of life

imprisonment under 21 U.S.C. § 841(b)(1)(A)(viii) (providing for a mandatory

minimum sentence of life imprisonment for any person who commits a violation of

thatsubparagraph “after two or more prior convictions for a felony drug offense have

become final”). On June 22, 2004, the district court sentenced defendant to life

imprisonment on count I, and a consecutive term of sixty months’ imprisonment on

count III. (Doc. 51)

By mandate issued June 15, 2005 (doc. 74), the U.S. Court of Appeals for the

Eleventh Circuit affirmed defendant’s convictions. Defendant file a petition for writ

of certiorari, which was denied on November 28, 2005. (Doc. 85, 4) Seeking postconviction relief, defendant filed a motion to vacate, set aside, or correct sentence,

pursuant to 28 U.S.C. § 2255. (Doc. 75) Defendant argued, inter alia, that his prior

state felony convictions for possession of methamphetamine constituted

misdemeanors under 21 U.S.C. § 844(a), and, as such, could not have been relied

upon to support the enhanced sentence of life imprisonment. (Doc. 85, 13) In

support of this contention, defendant relied upon the Supreme Court’s decision in

Lopez v. Gonzales, 549 U.S. 47 (2006), which involved a removal proceeding under

the Immigration and Nationality Act. The court held that a prior state felony

conviction for possession of cocaine does not qualify as a drug trafficking offense

under the Controlled Substances Act, such that it could be used to disqualify a

defendant from discretionary cancellation of removal. See id. at 52-53. 

In denying the motion to vacate, this court rejected the Lopez challenge on the

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ground that Lopez was not retroactively applicable on collateralreview. (Doc. 85, 13-

17) Defendant filed the instant amended motion to reopen judgment (doc. 107)

pursuant to FEDERAL RULE OF CIVIL PROCEDURE 60(b)(4), contending the order

denying the motion to vacate is “void.” Defendant argues that the court erred in

concluding that Lopez was not retroactively applicable on collateral review. Further,

defendant assertsthat the Supreme Court’s decision inCarachuri-Rosendo v. Holder,

130 S. Ct. 2577 (2010), justifies relief from both the district court’s denial of the

motion to vacate and his sentence.

“Rule 60(b) allows a party to seek relief from a final judgment, and request

reopening of his case, under a limited set of circumstances including fraud, mistake,

and newly discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). 

“[T]he general rule is well-established that a collateral attack upon a federal

conviction and sentence must be brought pursuant to § 2255.” Galatolo v. United

States, 196 F. App’x 854, 857 (11th Cir. 2006). “[A] Rule 60(b) motion that ‘seeks

to add a new ground for relief,’ or ‘attacks the federal court’s previous resolution of

a claim on the merits,’ constitutes a second or successive petition for writ of habeas

corpus.” Id. (quoting Crosby, 545 U.S. at 532); see also Galatolo v. United States,

394 F. App’x 670, 672 (11th Cir. 2010) (“If the motion seeks to add a new ground for

relief from the underlying judgment of conviction, or otherwise attacks the district

court’s resolution of any original § 2255 claims on the merits, then the court should

construe the Rule 60 action as a second or successive § 2255 motion and dismiss it

accordingly.”). “By contrast, ‘when a Rule 60(b) motion attacks, not the substance

of the federal court’s resolution of a claim on the merits, but some defect in the

integrity ofthe federal habeas proceedings,’ courtsshould not treat the Rule 60 action

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as a successive § 2255 motion.” Galatolo, 394 F. App’x at 672 (quoting Crosby, 545

U.S. at 532-33).

Here, defendant’s RULE 60(b) action merely resurrects the claim, previously

rejected by this court in its denial of the motion to vacate, that Mr. Carroll’s prior

state felony convictions could not be relied upon to support the enhanced sentence

of life imprisonment. Defendant also reargues by way of RULE 60(b) a claim of

ineffective assistance of counsel, asserting, as he did in the unsuccessful § 2255

motion, that his guilty plea was not intelligent and voluntary because his attorney

allegedly promised a sentence not to exceed ten or twelve years. Given such

arguments, the amended RULE 60(b) motion is properly construed as a second or

successive § 2255 motion and should be dismissed accordingly. See Galatolo, 394

F. App’x at 672; Williams v. Chatman, 510 F.3d 1290, 1295 (11th Cir. 2007) (holding

district court lacked subject matter jurisdiction to consider successive habeas petition

where defendant did not move circuit court for an order authorizing such a petition).

To the extent defendant advances other grounds for relief from the judgment,

these grounds are unavailing. Defendant, for instance, argues for relief from the

judgment in light of Carachuri-Rosendo, 130 S. Ct. at 2580, which held that second

or subsequent simple possession offenses are not aggravated felonies under §

1101(a)(43) when the state conviction is not based on the fact of a prior conviction. 

Carachuri-Rosendo, however, concerned a removal proceeding under the

Immigration and Nationality Act (“INA”), and whether the petitioner’s second state

conviction for misdemeanor drug possession qualified as an “aggravated felony,” for

purposes of determining the petitioner’s rights under the INA. Defendant’s prior

felony drug convictions, by contrast, are governed by the provisions set forth in 21

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U.S.C § 802(44) (defining the term “felony drug offense”). See United States v.

Padgett, No. 5:06-cr-00013-RS-GRJ, 2011 WL 845075, at *7 (N.D. Fla. Feb. 1,

2011) (“Even drug offenses that are classified as misdemeanors under state law may

qualify as ‘felony drug offenses’ for purposes of enhanced § 841(b) penalties if the

offense is punishable by more than one year.” (citing Burgess v. United States, 553

U.S. 124, 129-30 (2008))). In other words, Carachuri-Rosendo is inapposite to

defendant’s case and offers no basis for relief.

Accordingly, it is ORDERED:

The order dated February 27, 2012 (doc. 111), is VACATED.

And it is respectfully RECOMMENDED:

1. That defendant’s amended motion to reopen judgment (doc. 107), filed

pursuant to FEDERAL RULE OF CIVIL PROCEDURE 60(b), be DENIED.

2. That the clerk be directed to close the file.

DONE AND ORDERED this 1st day of March, 2012.

/s/Charles J. Kahn, Jr.

CHARLES J. KAHN, JR.

UNITEDSTATESMAGISTRATEJUDGE

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days after being served a copy hereof. 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 any objections shall be served upon the magistrate judge and all

other parties. Failure to object may limit the scope of appellate review of factual

findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir.

1988).

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