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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:93cr4028-WS

vs. Case No. 4:05cv443-WS/WCS

KEITH LAPELL BIGGINS, 

Defendant.

 /

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

This cause is before the court on a "Motion Filed under Federal Rule of Civil

Procedure 60(b)(6) for Relief from Final Judgment Order Denying 28 U.S.C. § 2255

Motion to Vacate, Set Aside or Correct." Doc. 850. Defendant Keith Lapell Biggins

seeks relief from the order and judgment of June 19, 2002. Docs. 788 and 789. 

Defendant's § 2255 motion as supplemented (docs. 768, 777, 778, 784, and 785)

was summarily dismissed without prejudice as untimely. Doc. 787 (adopted by doc.

788) (a copy of doc. 787 is supplied as Attachment A to doc. 850). As set forth in the

report and recommendation, Defendant sought relief under Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and asserted newly discovered

evidence supporting a claim under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

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Case Nos. 4:93cr4028-WS and 4:05cv443-WS/WCS

L.Ed.2d 215 (1963). Doc. 787, pp. 1-5. In support of his Brady claim, Defendant

"supplied affidavits of Keenan Holmes, Charles Jenkins, himself, Ezell Collins, Sharond

Rudolph, Rene Sotorrio (trial counsel), Frederick Smith, and Wayne Biggins." Doc. 787,

pp. 4-5 (citations and footnote omitted). "The affidavits range[d] in dates from 1996 to

2002," and the undersigned found no support for a conclusion that Defendant could not

have discovered these facts earlier through the exercise of due diligence. Id., p. 5. As

in In re Boshears, 110 F.3d 1538 (11th Cir. 1997), "Defendant Biggins, likewise, 'fails to

explain why a reasonable investigation would not have uncovered these facts'

previously." Id., pp. 5-6, quoting 110 F.3d at 1540-41. 

The recommendation was adopted, reconsideration was denied, and a certificate

of appealability was denied by this court and the Eleventh Circuit. Docs. 788-793, 799,

807, and 809 (denying rehearing on December 30, 2002). 

Defendant thereafter filed with the Eleventh Circuit an application for leave to file

a second or successive motion under § 2255, claiming a violation of Brady "by failing to

turn over exculpatory evidence, namely Keenan Holmes' confession." Doc. 846

(opinion of June 10, 2005) (a copy of which is also supplied as Attachment B to doc.

850), p. 2. The appellate court said: "Because Biggins admits that his claim does not

rely on a new rule of constitutional law, and because we conclude that Biggins's newly

discovered evidence, even if proven, is not 'sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found [Biggins] guilty of

the offense,' we deny his application." Id. (citing § 2255 and Boshears). 

Defendant now asserts that this court erred in finding that his Brady claim was

time barred under § 2255 clause (4). Doc. 850, pp. 4-6. Clause (4) provides, as a

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1

 The period runs from the latest of the specified dates. Id. The Apprendi claim

was not timely under clause (3), for a right "newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review," as Apprendi does not apply

retroactively. Doc. 787, pp. 2-4. See also Varela v. United States, 400 F.3d 864, 868

(11th Cir.), cert. denied, U.S. , 126 S.Ct. 312 (2005) (holding that United States v.

Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) -- extending Apprendi and

progeny to the United States Sentencing Guidelines -- does not apply retroactively on

collateral review).

Case Nos. 4:93cr4028-WS and 4:05cv443-WS/WCS

possible commencement date for the one year limitations period, that the time may run

from "the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence." See also doc. 787, p. 2

(quoting from § 2255 the four possible commencement dates).1

In support, Defendant lists the witnesses and dates of their affidavits (from 1996

through 2001). Doc. 850, p. 2. He claims that in his objections to the report and

recommendation (doc. 790) he objected to application of Boshears and the conclusion

that he had not shown due diligence, and quotes from the objections filed. Doc. 850,

pp. 2-3. He "brings this Rule 60(b) motion in reliance on" the holding in Gonzalez v.

Crosby, 545 U.S. , 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). Id., p. 4. Defendant

argues that there was a violation of Brady, that reliance on Boshears in finding no due

diligence was error, that there was due diligence as he "spent years" trying to obtain

affidavits but "did not and could not control the timing of each affiant's submission," and

that the court should have held an evidentiary hearing. Id., pp. 9-12. "[B]ased on these

facts (and newly discovered facts not presented in this motion, but available for an

evidentiary hearing in the event that this motion is granted)," and the "unusually harsh

and fundamentally unfair § 2255 proceeding," Defendant seeks relief. Id., p. 12

(footnote omitted). 

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2

 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. 

3

 On the other hand, where a Rule 60(b) motion presents a "claim," which the

Court defined as "an asserted federal basis for relief" from a judgment of conviction,

then the motion is in substance a successive petition and should be treated accordingly. 

Id., at 2647-48. 

Case Nos. 4:93cr4028-WS and 4:05cv443-WS/WCS

Gonzalez 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 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.2

 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 2650.3

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.

Defendant here does not assert a change of law regarding the timeliness issue. 

While his motion may not necessarily be a second or successive one under Gonzalez,

Defendant advances no new basis for relief or "extraordinary circumstances" under Rule

60(b)(6). The allegations presented, of difficulty in obtaining affidavits, are far less

compelling than in Gonzalez, where the 60(b) motion was based on intervening case

law. See 545 U.S. at , 125 S.Ct. at 2651-52 ("[t]he District Court's interpretation was

by all appearances correct under the Eleventh Circuit's then-prevailing interpretation of

28 U.S.C. § 2244(d)(2)," and it was "hardly extraordinary that subsequently, after

petitioner's case was no longer pending, this Court arrived at a different interpretation."). 

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4

 Both cases involved state prisoners seeking habeas corpus relief under § 2254. 

Section 2244(d)(2) (discussed in Gonzalez) provides for tolling of the one year limitation

for filing a § 2254 petition, while state remedies are exhausted. Section 2254(e)(2)

(discussed in Lott) limits the availability of an evidentiary hearing for facts not developed

in state court, unless the petitioner can satisfy (e)(2)(A)(i) or (ii), and (e)(2)(B). 

5

Case Nos. 4:93cr4028-WS and 4:05cv443-WS/WCS

Cf. Lott v. Coyle, 261 F.3d 594, 606 (6th Cir. 2001), cert. denied, 534 U.S. 1147 (2002)

(state petitioner had failed to identify why factual predicate for Brady claim "could not

have been previously discovered through the exercise of due diligence" under §

2254(e)(2)(A)(ii), as the petitioner had not addressed, inter alia, when and how he

obtained the new information, and why it could not have been discovered previously).4

The undersigned determined, in a report and recommendation, that Defendant failed to

explain why a reasonable investigation would not have uncovered the facts previously. 

Defendant's explanations have either already been rejected by this court and the

Eleventh Circuit, or they are arguments he could or should have raised in this court and

on appeal.5

 Defendant still does not offer specifics, such as when and how he obtained

the affidavit for each witness, or why the affidavit could not have been obtained earlier

with due diligence. Defendant's claim of new evidence "available for an evidentiary

hearing," which he will provide if his motion is granted, is likewise unsupported with

specifics. The court should reject his current attempt to explain or elaborate as to why,

years later and by Rule 60(b) motion, the prior ruling was wrong. Cf. Gonzalez, 125

S.Ct. at 2651 (finding the change in law argument was "all the less extraordinary in

petitioner's case, because of his lack of diligence in pursuing review of the statute of

limitations issue."). 

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Case Nos. 4:93cr4028-WS and 4:05cv443-WS/WCS

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

from judgment under Fed.R.Civ.P. Rule 60(b)(6), doc. 850, be SUMMARILY DENIED. 

IN CHAMBERS at Tallahassee, Florida, on January 3, 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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