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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

Case No. 4:90cr4007-WS/WCS

vs.

ERIC A. PARKER,

Defendant.

 /

REPORT AND RECOMMENDATION ON RULE 60(d) MOTION

Defendant filed a "Motion to Demonstrate Actual Innocence of Sentence

Pursuant to Rule 60(d), [Fed.R.Civ.P.], as an Independent Action in Equity, Relative to a

Lack of Jurisdiction under U.S.C. [§] 851 and [Fed.R.Crim.P.] 7(c)(3) Where the

Information Citation Was in Error That Was Misleading and Prejudice [sic] to Movant." 

Doc. 130 (hereafter Rule 60 motion). The motion is unsigned. 

Defendant also filed a motion to amend the Rule 60 motion, asking the court to

accept his sworn signature. Doc. 131. Attached to the motion are replacement pages

15 and 16 for doc. 130, bearing Defendant's signature. The motion is granted by

separate order so the court may consider the Rule 60 motion as though properly signed. 
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Defendant Parker was convicted and sentenced to life in prison, and the

judgment was affirmed over 16 years ago. United States v. Parker, 19 F.3d 638 (11th

Cir. 1994), cert. denied, 513 U.S. 1110 (1995) (see doc. 129, p. 6, docket entries 103-

105).1 He filed a Rule 28 U.S.C. § 2255 motion, which was denied. Docs. 112 (report

and recommendation) and 114 (order entered on the docket on February 12, 1998,

adopting recommendation and denying § 2255 motion). The denial of his 28 U.S.C. §

2255 motion was affirmed in 1999. Doc. 126. 

The Eleventh Circuit has twice denied authorization to file a second or

successive § 2255 motion. Docs. 127 and 128.

Defendant contends that under Rule 60(d), this is "an independent action in

equity concerning a non-waiverable claim of lack of jurisdiction to enhance his

sentence" under § 851, that it was "fraud on the court" to enhance his sentence without

jurisdiction, and that under Fed.R.Crim.P. 7(c)(3) (now 7(c)(2)),2

 "the information

CITATION was in error and was misleading and prejudice [sic] to movant." Doc. 130, p.

1

 Given the age of the case, many documents (including the § 851 information)

were docketed on paper. A copy of the paper docket was scanned into ECF (electronic

case filing) as doc. 129. The earliest document docketed in ECF was doc. 106; the first

document scanned and docketed into ECF was doc. 112, entered on the docket on

January 21, 1998. References to docket entries preceding 106 are to the paper docket,

doc. 129. 

2

 Fed.R.Crim.P. 7(c)(3) was re-designated – without change – as 7(c)(2) in 2009,

when former 7(c)(2) (regarding forfeiture) was repealed as obsolete. See Advisory

Committee Notes to 2009 Amendments. Hereafter references are to 7(c)(2), which

provides that "[u]nless the defendant was misled and thereby prejudiced, neither an

error in a citation nor a citation's omission is a ground to dismiss the indictment or

information or to reverse a conviction." The rules also provide, however, that "a motion

alleging a defect in the indictment or information" must be made before trial, except that

"at any time while the case is pending, the court may hear a claim that the indictment or

information fails to invoke the court's jurisdiction or to state an offense." Fed.R.Crim.P.

12(b)(3)(B). This case, obviously, is no longer "pending" in any sense of the word. 

Case No. 4:90cr4007WS/WCS
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1. He alleges that the Government's notice failed to cite § 851 at all, and referenced a

Houston, Texas, conviction without providing a case number, and he was only aware of

a misdemeanor conviction in Houston. Id., pp. 4, 7, citing Ex. A. The referenced

document is a copy of the information and notice of intent filed in this case on March 17,

1992, as doc. 37. Doc. 130, Ex. A. This was well before Defendant's trial in May and

September of 1992. Docs. 53-54, 74-77. 

Defendant alleges that the information failed to inform him he faced a mandatory

life sentence, erroneously gave the date of his prior conviction as May of 1988, failed to

make clear there were two convictions, and the Government failed to file an amendment

to correct clerical mistakes. Doc. 130, pp. 8-11. Defendant claims the court erred in not

advising him that any challenge to the prior conviction must be raised before

sentencing. Id., pp. 11-12. He notes he timely objected to the use of the prior

conviction, and argued at sentencing that there were no indictment numbers, correct

dates, or indication of two (rather than one) prior offenses. Id., p. 12, referencing Exs. D

and E. Exhibit D is an excerpt from the presentence report in this case, reflecting that

defense counsel "maintains that the enhanced penalties of mandatory life do not apply

in this case as [Government] counsel did not give notice of their intention to seek the

enhanced penalties." Id., Ex. D, p. 2. Exhibit E is an excerpt from (presumably) the

sentencing transcript. Counsel argued that the information said Defendant was

convicted in Houston and sentenced to five years, but "doesn't say five years on each

offense, it doesn't say indictment number so and so and so and so he was convicted." 

Id., Ex. E. He argued that the offenses were at different times and there was nothing to

indicate two offenses:

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When I read it, I assumed it was one offense. I have no problem with that,

I will stipulate to that, we did at the trial. But as far as notice, formal

notice, unambiguous notice of two crimes – offenses that they are relying

on to enhance Mr. Parker's sentence, I think that must be strictly

scrutinized and I don't think it's complied with in this notice.

Id. 

As evident from the published opinion on direct appeal, noted supra, Defendant

did not challenge the § 851 enhancement on direct appeal. A review of the initial

appellate brief, available on Westlaw, confirms that the enhancement was not

challenged. See 1993 WL 13138411 (appellate brief).3 Defendant apparently did not

raise the § 851 enhancement issue in his § 2255 motion, instead challenging the

admission of extrinsic act evidence under Fed.R.Evid. 404(b). See doc. 112 (discussing

the claims).4 Defendant asserts that the current motion is not a second or

successive § 2255 motion, as Rule 60(d) allows the court to address jurisdictional

defects and the Rule 7(c) error at any time, and jurisdictional defects cannot be waived

or defaulted. Doc. 130, p. 14. 

Section 2255 provides:

3

 In the discussion of "extrinsic offense evidence," the brief discussed the "First"

and "Second" "Houston incident[s]," a "South Carolina incident," and a "Memphis

incident." Though the appellate brief referred to the first Houston incident as a

misdemeanor offense, the Government's brief noted as to "Houston I" that "[t]he

cocaine possession was a felony, not a misdemeanor as Parker asserts in his brief. 

That Parker was arrested on a misdemeanor marijuana charge and a felony cocaine

charge is borne out by the presentence report and the discussion about this very issue

at the sentencing hearing." 1993 WL 13138410 at *9 (citation to the record on appeal

omitted).

4

 The admission of extrinsic acts evidence was challenged on direct appeal

(footnote 3, supra), so would not normally be reconsidered by § 2255 motion; however

Defendant claimed an intervening change in law based on Old Chief v. United States,

519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), decided four years after his

conviction. Doc. 112, pp. 3-4 and n. 3. 

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A prisoner in custody under sentence of a court established by Act of

Congress claiming the right to be released upon the ground that the

sentence was imposed in violation of the Constitution or laws of the United

States, or that the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may move the court which

imposed the sentence to vacate, set aside or correct the sentence.

§ 2255(a) (formerly § 2255 ¶ 1)5

 (emphasis added). 

Jurisdiction is therefore specifically noted as a ground for § 2255 relief, and

claims that the court lacked jurisdiction are not excluded from the restrictions governing

successive motions. Compare § 2255(a) and (h). A second or successive motion must

either contain "newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing evidence

that no reasonable factfinder would have found the movant guilty of the offense," or

present "a new rule of constitutional law, made retroactive to cases on collateral review

by the Supreme Court, that was previously unavailable." § 2255(h)(1) and (h)(2). 

The substance of Rule 60(d) was formerly part of Rule 60(b).6

 In holding that a

defendant could not challenge criminal forfeiture orders under the Federal Rules of Civil

Procedure, the Eleventh Circuit said: 

5

 Section 2255 was amended in 2008 to assign letters to the subsections,

previously referenced by paragraph number. 

6

 Subsection (d) provides that the rule does not limit the court's power to

"entertain an independent action to relieve a party from a judgment, order, or

proceeding," to "grant relief under 28 U.S.C. § 1655 to a defendant who was not

personally notified of the action," or to "set aside a judgment for fraud on the court." 

Fed.R.Civ.P. 60(d)(1)-(3) (2010). Until its amendment in 2007 (effective December 1,

2007), Rule 60 had only subsections (a) and (b). The changes were stylistic (see

Advisory Committee Notes to 2007 Amendments), and the language now set forth in

subsections (c), (d), and (e) was formerly contained within 60(b). Compare

Fed.R.Civ.P. 60 (2006). 

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Rule 1 of the Federal Rules of Civil Procedure unambiguously provides

that "[t]hese rules govern the procedure in the United States district courts

in all suits of a civil nature. . . ." The judgment and order that the

defendant contests were entered, not in a civil case, but in a criminal case,

and a proper appeal of the forfeitures should have been raised in the

defendant's criminal appeal of his conviction and sentence. 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) (emphasis added);

United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (in Mosavi it was said "that

the Federal Rules of Civil Procedure 'unambiguously' limited their application to civil

cases," emphasis in original; also quoting the language of Mosavi emphasized in the

passage above). 

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

judgment of conviction and sentence, whether a change in substantive law governing

the claim, a new ground for relief, or challenging the prior resolution on the merits, is in

substance a successive petition and should be treated accordingly. Gonzalez v.

Crosby, 545 U.S. 524, 530-532, 125 S.Ct. 2641, 2647-48, 162 L.Ed.2d 480 (2005)

(applying this rationale in the context of a Rule 60(b) motion seeking relief from a 28

U.S.C. § 2254 judgment) (citations omitted), affirming Gonzalez v. Secretary for Dept.

Of Corrections, 366 F.3d 1253 (11th Cir. 2004).7 

7

 The Eleventh Circuit opinion addressed claims brought by two § 2254

petitioners (Gonzalez and Mobley) and one § 2255 movant (Lazo), and noted no

material difference between § § 2254 and 2255 for purposes of Rule 60. 366 F.3d at

1262. Certiorari was only granted as to Gonzalez; the Supreme Court expressly limited

its opinion to the application of Rule 60 in habeas proceedings under § 2254. 545 U.S.

at 529, n. 3, 125 S.Ct. at 2646, n. 3. The Supreme Court found error in the Eleventh

Circuit's treatment of a Rule 60 motion, which did not raise such "claims" but challenged

an earlier denial of § 2254 relief as untimely, as the equivalent of a second or

successive § 2254 petition. 545 U.S. at 535-536, 125 S.Ct. at 2650. Denial of the Rule

60 motion was nonetheless affirmed, as the petitioner failed to show "extraordinary

circumstances." Id., at 536-538, 125 S.Ct. at 2650-51. 

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Any motion filed in the district court that imposed the sentence, and

substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no

matter what title the prisoner plasters on the cover. Call it a motion for a

new trial, arrest of judgment, mandamus, prohibition, coram nobis, coram

vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quare 

impedit, bill of review, writ of error, or an application for a Get-Out-of-Jail

Card; the name makes no difference. It is substance that controls.

Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) (citations omitted, emphasis

in original); United States v. Lloyd, 398 F.3d 978, 979-980 (7th Cir. 2005) (quoting

Melton).8

 

Defendant raises claims for relief which should be subject to the restrictions on

the filing of successive motions. He challenges the enhancement of his sentence, a

ground apparently known to him since at least the time of sentencing, when counsel 

made the objection. He raises no true Rule 60 challenge to the denial of his first § 2255

motion.

As this is essentially a second or successive § 2255 motion, Defendant must

obtain authorization from the Eleventh Circuit before filing it in this court. § 2255(h)

(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

8

 A document may not so readily be recharacterized as a first § 2255 motion. 

Castro v. United States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003) (holding

that if a district court recharacterizes a motion not designated as a § 2255 to be a first §

2255 motion, and fails to give notice and an opportunity to amend or withdraw, it does

not count as a first § 2255 for purposes of successive filing restrictions). But even after

Castro, after the first § 2255 motion is denied, "all later collateral attacks must be seen

for what they are." Lloyd, 398 F.3d at 980. "The Castro decision 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). 

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the appropriate court of appeals authorizing the district court to consider the motion, as

required by 28 U.S.C. § 2255, para. 8 [now § 2255(h)]."). 

The court must issue or deny a certificate of appealability when entering a final

order adverse to a § 2255 movant. § 2255 Rule 11(a); see also Jackson v. Crosby, 437

F.3d 1290, 1294-95 (11th Cir. 2006) ("It is still the law of this circuit that 'a certificate of

appealability is required for the appeal of any denial of a Rule 60(b) motion for relief

from a judgment in a [28 U.S.C.] § 2254 or [28 U.S.C.] § 2255 proceeding.") (quoting

Gonzalez, 366 F.3d at 1263) (other citations omitted). If a certificate is issued "the court

must state the specific issue or issues that satisfy the showing required by 28 U.S.C. §

2253(c)(2)." 

I find no substantial showing of the denial of a constitutional right. § 2253(c)(2);

Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542

(2000) (explaining how to satisfy this showing) (citation omitted). I therefore

recommend that the court deny a certificate of appealability in its final order.

The second sentence of Rule 11(a) provides: "Before entering the final order,

the court may direct the parties to submit arguments on whether a certificate should

issue." If Defendant files an objection to this recommendation, he should include any

argument he wishes to make regarding the issuance of a certificate of appealability. 

Time to appeal is governed by Fed.R.App.P. 4(a), and "[a] timely notice of appeal

must be filed even if the district court issues a certificate of appealability." § 2255 Rule

11(b). 

It is therefore respectfully RECOMMENDED that Defendant's Fed.R.Civ.P. 60(d)

motion, doc. 130, be SUMMARILY DISMISSED as an unauthorized second or

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successive § 2255 motion, and that a certificate of appealability be DENIED in the final

order of dismissal. 

IN CHAMBERS at Tallahassee, Florida, on November 24, 2010.

 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.

Case No. 4:90cr4007WS/WCS