[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-11539

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D.C. Docket No. 1:10-cr-00025-TWT-LTW-1

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

versus

RANDY WILCHER, 

 Defendant - Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(August 23, 2018 )

Before WILSON, NEWSOM, Circuit Judges, and VINSON,* District Judge. 

PER CURIAM: 

 * Honorable C. Roger Vinson, United States District Judge for the Northern District of Florida, 

sitting by designation. 

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Randy Wilcher, a federal prisoner, appeals the district court’s denial of his 

pro se Federal Rule of Civil Procedure 60(b)(6) motions. On appeal, Wilcher 

argues that the district court erred by treating his Rule 60(b)(6) motions as 

impermissibly filed successive 18 U.S.C. § 2255 motions. Specifically, he argues 

that he is entitled to a ruling on his argument that one of his earlier convictions no 

longer categorically qualifies as a predicate offense under the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e), after Johnson v. United States, 576 

U.S. ___, 135 S. Ct. 2551 (2015). After review of the parties’ briefs and the 

record, and with the benefit of oral argument, we vacate and remand for the district 

court to rule on Wilcher’s Johnson categorical claim. 

I.

Wilcher was convicted by a jury of possession with intent to distribute 

heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and possession of a 

firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). 

The district court sentenced Wilcher to 188 months in prison after determining that 

he had three prior convictions for serious drug offenses, which implicated the 15-

year mandatory minimum in the ACCA. Those prior convictions were (1) a 1988 

Georgia state conviction for possession with intent to distribute cocaine, (2) a 1990 

Georgia state conviction for voluntary manslaughter and aggravated assault, and 

(3) a 1990 Georgia state conviction for possession with intent to distribute cocaine. 

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Wilcher argued unsuccessfully that the 1988 conviction for possession with the 

intent to distribute cocaine was not a “serious drug offense.” 

We affirmed Wilcher’s convictions and sentence in United States v. Wilcher, 

512 F. App’x 919 (11th Cir. 2013) (per curiam). Specifically, we rejected 

Wilcher’s argument that his 1988 drug conviction was not a serious drug offense 

under the ACCA.1

 Wilcher then filed a pro se motion to vacate his sentence under 

§ 2255 on April 10, 2014. In his § 2255 motion, Wilcher asserted that his counsel 

was ineffective and that his sentence must be vacated because the three prior 

convictions used as predicates for his ACCA sentencing enhancement were not 

charged in the indictment and found by the jury beyond a reasonable doubt. While 

the motion was still pending, Wilcher moved pro se to amend it. In his motion to 

amend, Wilcher included an argument that his enhanced sentence under the ACCA 

was no longer constitutional in light of the Supreme Court’s ruling in Johnson. 

The district court denied Wilcher’s initial § 2255 motion on July 6, 2015, but it 

later granted Wilcher’s motion to amend.

Wilcher never filed an amended § 2255 motion, and the district court never 

ruled on the Johnson claim mentioned in his motion to amend.2

 Wilcher did later

 1 We also rejected Wilcher’s arguments regarding alleged evidentiary errors at trial and an 

alleged error in the jury instructions. 

2 Wilcher did attempt to appeal the district court’s denial of his § 2255 motion, but we held that 

because the Johnson claim remained pending before the district court, we lacked jurisdiction to 

review that claim. United States v. Wilcher, No. 15-13913 (11th Cir. Nov. 23, 2015) (per 

curiam), ECF No. 13. 

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file two identical pro se Rule 60(b)(6) motions for relief from judgment in 

December 2015 and January 2016. In these motions, Wilcher said that he was “not 

challenging any previous rulings on the merit[s] in his initial [§] 2255 [motion].” 

Instead, Wilcher stated that he sought to challenge whether his previous 

convictions could still qualify as predicate offenses under the ACCA. The 

government argued that Wilcher’s Rule 60(b)(6) motions should be construed as 

impermissibly filed successive § 2255 motions. The district court agreed and 

denied the motions on that basis. Wilcher timely appealed.3

 Wilcher initially filed 

his appeal briefs pro se, but we later appointed counsel for Wilcher on appeal and 

then restarted the briefing schedule. Both parties have now submitted counseled 

briefs. In its brief, the government (having switched positions) now concedes that 

the district court erred in construing Wilcher’s Rule 60(b)(6) motions as successive 

§ 2255 motions. 

II.

We review de novo a district court’s dismissal of a motion as a successive 

§ 2255 motion. Boyd v. United States, 754 F.3d 1298, 1301 (11th Cir. 2014). “Pro 

se pleadings are held to a less stringent standard than pleadings drafted by 

 3 The government moved to dismiss the appeal for lack of jurisdiction, but we denied its motion 

because a Certificate of Appealability is not required when a prisoner seeks to appeal a decision 

dismissing a habeas petition for lack of subject matter jurisdiction. See Hubbard v. Campbell, 

379 F.3d 1245, 1247 (11th Cir. 2004) (per curiam). 

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attorneys and will, therefore, be liberally construed.” Tannenbaum v. United 

States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam).

Pursuant to Rule 60(b), a district court may relieve a party from a final 

judgment, order, or proceeding on certain grounds, including any reason that 

justifies relief. Fed. R. Civ. P. 60(b). A Rule 60(b) motion should be treated as a 

successive habeas petition if it “seeks to add a new ground for relief” or “attacks 

the federal court’s previous resolution of a claim on the merits.” Gonzalez v. 

Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648 (2005).4

 But when the Rule 

60(b) motion attacks “some defect in the integrity of the federal habeas 

proceedings,” and not a merits issue, it is not an impermissible successive motion. 

Id. 

II.

Construing Wilcher’s pro se filings liberally, we find (as the government 

now concedes) that Wilcher did not impermissibly file successive § 2255 motions. 

Wilcher did not cite Johnson in his identical Rule 60(b)(6) motions, but he stated 

that he was “challenging the integrity of the court in . . . ignoring his claim 

challenging the ‘nature’ of his Georgia State Court conviction that was used to 

make him a Career offender and place him in a class of offenders where he does 

not belong.” Wilcher then cited to a number of the Supreme Court’s recent 

 4 A prisoner in our circuit cannot file a second or successive habeas petition without our 

permission. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (per curiam). 

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decisions applying the categorical approach in the ACCA context. In essence, read 

liberally, Wilcher is arguing that the district court ignored the claim he made in his 

motion to amend his § 2255 motion—that after Johnson his 1988 drug conviction 

no longer categorically qualifies as a serious drug offense. Because the district 

court has not ruled on that claim, Wilcher’s identical motions are indeed 

permissible Rule 60(b)(6) motions. It is therefore also improper for us to rule on 

Wilcher’s claim at this time. See Clisby v. Jones, 960 F.2d 925, 934 (11th Cir. 

1992). 

III.

For the foregoing reasons, we vacate the district court’s order denying 

Wilcher’s Rule 60(b)(6) motions as impermissible § 2255 motions and remand for

the district court to rule on Wilcher’s Johnson categorical claim. 

AFFIRMED. 

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