Although Murillo’s self-styled Rule 60(b)(4) motion is date-stamped “received” on August 24, 2006, the

1

court, under the “mailbox rule,” deems his motion filed on the date he delivered it to prison authorities for

mailing, presumptively, August 9, 2006, the day that he signed it. See Houston v. Lack, 487 U.S. 266, 271-72

(1988); Washington v. United States, 243 F.3d 1299, 1301 (11 Cir. 2001).

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IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

GONZALO MURILLO, JR., )

)

Plaintiff, )

 )

v. ) Civil Action No. 2:06cv765-ID

) [WO] 

UNITED STATES OF AMERICA, )

)

Defendant. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This action is before the court on a motion under FED.R.CIV.P. 60(b)(4) filed by

federal inmate Gonzalo Murillo, Jr. (“Murillo”), on August 9, 2006 (Doc. No. 1). By his 1

motion, Murillo challenges the conviction and sentence imposed upon him by this court in

2002 for conspiracy to distribute cocaine base and marijuana. For the reasons that follow,

the court construes Murillo’s motion as motion for relief under 28 U.S.C. § 2255 and

concludes that he is not entitled to any relief.

I. DISCUSSION

In his motion, Murillo contends that (1) the Controlled Substances Act was never

properly enacted and consequently his conviction is void, and (2) his sentence was enhanced

based on judge-made findings in violation of the holdings of Apprendi v. New Jersey, 530

Case 2:06-cv-00765-ID-CSC Document 2 Filed 09/14/2006 Page 1 of 5
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U.S. 466 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005). (Doc.

No. 1 at p. 6.) Murillo’s claims clearly attack his conviction and sentence rather than the

integrity of this court’s judgment denying an application for habeas relief previously filed

by Murillo. Accordingly, Murillo’s reliance on Fed.R.Civ.P. 60(b)(4) as a vehicle for

seeking relief in this case is unavailing. See Gonzalez v. Crosby, 545 U.S. 524, ___, 125

S.Ct. 2641, 2646-47 (2005); El-Amin v. United States, No. 05-1276, 2006 WL 771182 (11th

Cir. Mar. 28, 2006) (unpublished); United States v. Terrell, No. 02-14997, 141 Fed.Appx.

849 (11 Cir. Jul. 19, 2005) (unpublished). See also United States v. Fair, 326 F.3d 1317, th

1318 (11 Cir. 2003) (“ Rule 60(b) simply does not provide for relief from judgment in a th

criminal case.”) (internal quotations and citation omitted).

Because the claims asserted by Murillo challenge the fundamental legality of his

conviction and sentence, he seeks relief from this court that is appropriate only under 28

U.S.C. § 2255. See Wofford v. Scott, 177 F.3d 1236, 1244-45 (11 Cir. 1999); Bradshaw th

v. Story, 86 F.3d 164, 166 (10 Cir. 1996). Thus, regardless of Murillo’s own labeling of th

the instant motion, this court finds that his motion is of the same legal effect as, and should

be construed as, a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.

See United States v. Jordan, 915 F.2d 622, 624-25 (11 Cir. 1990) (federal courts have “an th

obligation to look behind the label of a motion filed by a pro se inmate and determine

whether the motion is, in effect, cognizable under a different remedial statutory

framework").

Case 2:06-cv-00765-ID-CSC Document 2 Filed 09/14/2006 Page 2 of 5
 As indicated above, one of Murillo’s claims is premised, in part, on United States v. Booker, 543 U.S. 2

220, 125 S.Ct. 738 (2005). However, the Eleventh Circuit Court of Appeals has held that Booker does not

apply retroactively to cases on collateral review. See Varela v. United States, 400 F.3d 864, 866-67 (11 Cir.

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2005) (initial § 2255 proceedings); In re Anderson, 396 F.3d 1336, 1339-40 (11 Cir. 2005) (second or th

successive applications). Thus, in addition to the statutory bar on which this Recommendation is based,

Murillo cannot prevail on the merits of his Booker-based claim.

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This is the second § 2255 motion that Murillo has filed attacking the conviction and

sentence imposed upon him by this court in 2002. Murillo’s first § 2255 motion was filed

on November 20, 2004. This court denied that motion, ruling that it was time-barred under

the one-year period limitation of 28 U.S.C. § 2255. See United States v. Murillo, Civil

Action No. 2:04cv1162-ID: Feb. 7, 2006, Recommendation of the Magistrate Judge (Doc.

No. 15), adopted as Judgment of the Court by Order of Feb. 23, 2006 (Doc. Nos. 16 & 17).

Thus, treating Murillo’s instant motion as one under 28 U.S.C. § 2255, this would be a

second or successive § 2255 motion. 

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides that, to file

a second orsuccessive § 2255 motion in the district court, the movant must first move in the

appropriate court of appeals for an order authorizing the district court to consider the

motion. See 28 U.S.C. § 2244(b)(3)(A). The appellate court, in turn, must certify that the

second or successive § 2255 motion contains “(1) 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 (2) a new rule of constitutional law, made retroactive to cases on collateral

review by the Supreme Court, that was previously unavailable.” See 28 U.S.C. § 2255 ¶8. 2

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The pleadings and documents in this case reflect that Murillo has not received

certification from the Eleventh Circuit Court of Appeals authorizing this court to consider

a successive § 2255 motion. A district court lacks the jurisdiction to consider a successive

§ 2255 motion where the movant fails to obtain permission from the appellate court to file

a successive motion. See, e.g., Farris v. United States, 333 F.3d 1211, 1216 (11 Cir. 2003); th

Boone v. Secretary, Dept. of Corrections, 377 F.3d 1315, 1317 (11 Cir. 2004). th

Accordingly, this court lacks the jurisdiction to consider Murillo’s present motion, and the

motion is due to be summarily dismissed.

II. CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the motion

filed by Murillo on August 9, 2006 (Doc. No. 1), be denied and this case dismissed, as

Murillo has failed to obtain the requisite order from the Eleventh Circuit Court of Appeals

authorizing this court to consider a successive § 2255 motion.

It is further

ORDERED that the parties shall file any objections to this Recommendation on or

before September 27, 2006. A party must specifically identify the findings in the

Recommendation to which objection is made; frivolous, conclusive, or general objections

will not be considered. Failure to file written objections to the Magistrate Judge’s proposed

findings and recommendations shall bar a party from a de novo determination by the District

Court of issues covered in the Recommendation and shall bar the party from attacking on

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appeal factual findings accepted or adopted by the District Court except upon grounds of

plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5 Cir. 1982). See th

Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11 Cir. 1982). See also Bonner v. City of th

Prichard, 661 F.2d 1206 (11 Cir. 1981, en banc).

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Done this 14 day of September, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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