FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 25, 2010

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-13878

Non-Argument Calendar

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D. C. Docket No. 99-00306-CR-TWT-1

DAVID EARL WATTLETON,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(June 25, 2010)

Before CARNES, HULL and MARCUS, Circuit Judges.

PER CURIAM:

David Earl Wattleton appeals the district court’s dismissal of his motion for
relief from the judgment. After review, we vacate and remand for further

consideration consistent with this opinion.

In 1999, Wattleton was indicted on four counts of making bomb threats, in

violation of 18 U.S.C. § 844(e). A jury found Wattleton not guilty by reason of

insanity. The district court held a hearing regarding Wattleton’s potential danger

to society and ordered Wattleton committed to a mental health facility, pursuant to

18 U.S.C. § 4243. On direct appeal, this Court affirmed both the jury’s verdict and

the district court’s dangerousness determination. See United States v. Wattleton,

296 F.3d 1184 (11th Cir. 2002).

In 2002, Wattleton filed a 28 U.S.C. § 2255 motion, arguing that he received

ineffective assistance of appellate counsel on direct appeal. The district court

denied Wattleton’s § 2255 motion, and this Court affirmed. Wattleton v. United

States, No. 03-10422 (11th Cir. Oct. 27, 2003). Wattleton’s subsequent 28 U.S.C.

§ 2241 motion was dismissed as a successive § 2255 motion, and this Court

affirmed. See Wattleton v. Beeler, 186 F. App’x 852 (11th Cir. 2006).

In 2009, Wattleton filed the instant motion for relief from the judgment

pursuant to Federal Rule of Civil Procedure 60(b)(4). Rule 60(b)(4) provides that

a court “may relieve a party . . . from a final judgment, order, or proceeding [if] . . .

the judgment is void.” Fed. R. Civ. P. 60(b)(4). Wattleton’s motion argued that

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the district court’s 2002 order denying his first § 2255 motion is void for lack of

subject-matter jurisdiction because Wattleton’s civil commitment order cannot be

attacked in a § 2255 proceeding. The district court denied Wattleton’s Rule

60(b)(4) motion because Wattleton did not bring the motion within a “reasonable

time,” as required by Rule 60(c)(1).

This Court granted a certificate of appealability on the issue of: “Whether

the district court erred when it denied [Wattleton’s] motion, filed pursuant to Fed.

R. [Civ.] P. 60(b)(4), because it was not filed within a reasonable time, in light of

Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d 1126, 1130-31 (11th Cir. 1994)?”

In Hertz, we concluded that a Rule 60(b)(4) motion raising a jurisdictional defect

in the judgment is not subject to Rule 60’s reasonable time limitation. Id.

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On appeal, the government concedes, and we agree, that the district court

erred when it denied Wattleton’s Rule 60(b)(4) motion as untimely filed.

Wattleton’s motion argued that the judgment on his § 2255 motion is void due to a

jurisdictional defect. Under Hertz, such a motion may be made at any time.

Accordingly, we vacate and remand the case to the district court for further

consideration of Wattleton’s Rule 60(b)(4) motion.

VACATED AND REMANDED.

We review de novo a district court’s ruling upon a Rule 60(b)(4) motion to set aside a 1

judgment as void. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). 

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