[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-13317

Non-Argument Calendar

________________________

D.C. Docket No. 6:07-cr-00180-ACC-DAB-1

UNITED STATES OF AMERICA,

 Plaintiff - Appellee,

 versus

ERSKINE JERMAINE FLORENCE, 

 Defendant - Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(March 14, 2019)

Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.

PER CURIAM:

Case: 18-13317 Date Filed: 03/14/2019 Page: 1 of 6 
2

Erskine Jermaine Florence, a federal inmate proceeding pro se, appeals the 

District Court’s dismissal of his Motion under Rules 60(b) and (d) of the Federal 

Rules of Civil Procedure. Florence’s underlying contention is that the Assistant 

United States Attorneys who accepted his plea agreement—and the United States 

Attorney who supervised them—acted ultra vires because a request under the 

Freedom of Information Act, 5 U.S.C. § 552, revealed no indication that those 

persons had ever executed their oaths of office. Due to the lack of valid 

appointments, the argument goes, the sentencing court lacked jurisdiction over all 

aspects of his criminal case—from indictment to judgment to sentencing. Florence 

thus moved for his sentence to be vacated. The District Court dismissed 

Florence’s Motion in a docket entry because, in its words, “Federal Rule of Civil 

Procedure 60(b) or 60(d) cannot be used to challenge a criminal judgment.” The 

Court ruled that it had “no jurisdiction to grant the relief sought.”

We reverse the District Court’s order of dismissal of Florence’s Motion

because the Court erroneously determined that it lacked subject-matter jurisdiction. 

Florence was entitled to have his Motion construed as a motion for relief under 28 

U.S.C. § 2255—the only vehicle that could possibly provide him relief. As such, 

we remand this case to the Court for further proceedings. Because we write for the 

parties, we set out facts only as they are needed to support our analysis.

I.

Case: 18-13317 Date Filed: 03/14/2019 Page: 2 of 6 
3

Our analysis proceeds in three parts. We begin by explaining that Florence’s 

Motion, though styled as one for relief under Rules 60(b) and (d) of the Federal 

Rules of Civil Procedure, was really one for relief under 28 U.S.C. § 2255. We 

then explain that a certificate of appealability (“COA”) under 28 U.S.C. § 2253 is 

not required for us to review the District Court’s dismissal for lack of subjectmatter jurisdiction because it is not a “final order in a proceeding under section 

2255.” 28 U.S.C. § 2253(c)(1)(B). With those principles in mind, we turn to the 

District Court’s jurisdiction and conclude that the Court erred in dismissing a 

§ 2255 motion that was properly before it.

A.

The District Court improperly construed Florence’s Motion. “[F]ederal 

courts must look beyond the labels of motions filed by pro se inmates to interpret 

them under whatever statute would provide relief.” Means v. Alabama, 209 F.3d 

1241, 1242 (11th Cir. 2000) (per curiam). Florence’s Rule 60 Motion was, in 

effect, a motion for relief under 28 U.S.C. § 2255. What Florence seeks—“to be 

released from the Custody of the Bureau of Prisons immediately”—is classic 

habeas relief. Section 2255 is the procedural vessel for a “prisoner in 

Case: 18-13317 Date Filed: 03/14/2019 Page: 3 of 6 
4

custody . . . claiming the right to be released upon the ground that the court was 

without jurisdiction to impose such sentence.” 28 U.S.C. § 2255(a).1

Having determined the nature of the proceeding before us, we now consider 

whether a COA is required to entertain Florence’s appeal.

 1 Note that Florence already has an unresolved § 2255 motion pending before the District 

Court. His claim of error in that Motion is that the residual clause of § 4B1.2(a) of the United 

States Sentencing Guidelines is unconstitutionally vague. The District Court stayed the

proceedings pending a decision of the Supreme Court in Beckles v. United States, 580 U.S. ___, 

137 S. Ct. 887 (2017). (Beckles, it turns out, forecloses Florence’s claim because Guidelines 

provisions are not subject to vagueness challenges. Id. at ___, 137 S. Ct. at 892.) The Court

instructed Florence to notify the Court in writing within ten days of the decision and warned that 

failure to do so would result in dismissal of his case without further notice. It also ordered the 

clerk to administratively close the case. The clerk complied, the case remains closed, but that 

Motion is still unresolved.

Though the Motion before us now is a new claim for relief under § 2255, it is not a 

“second or successive” application within the meaning of 28 U.S.C. § 2244(b), which would first 

require Florence to seek leave of this Court before filing an additional motion. Cf. In re 

Bradford, 830 F.3d 1273, 1276 (11th Cir. 2016) (per curiam) (holding that § 2244(b) applies to 

motions under § 2255). This is so because “second or successive status only attaches to a 

judgment on the merits.” Boyd v. United States, 754 F.3d 1298, 1302 (11th Cir. 2014). And 

“administratively closing a case is not the same as dismissing a case.” Martinez v. Carnival 

Corp., 744 F.3d 1240, 1244 (11th Cir. 2014). Because Florence’s first Motion has not been 

decided on the merits—as a panel of this Court has already determined, see In re Florence, No. 

18-12980-J, slip op. at 2 (11th Cir. Nov. 14, 2018) (per curiam)—this Motion is not “second or 

successive” within the meaning of 28 U.S.C. § 2244(b).

For the same reason, to treat Florence’s Motion as a Rule 60 motion—that is, to treat it as 

he himself styled it—would be nonsensical.

Rule 60(b) provides relief from a “final judgment, order, or proceeding” in cases of 

“fraud” or a “void” judgment. Fed. R. Civ. P. 60(b)(3)−(4). Rule 60(d) merely confirms that the 

Rule “does not limit a court’s power to . . . set aside a judgment for fraud on the court.” Id.

60(d). We have recognized two narrow circumstances in which in which a habeas litigant may 

employ Rule 60 in lieu of seeking leave to file a “second or successive” habeas motion. See 

Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1278 (11th Cir. 2004) (en banc) (permitting 

such motions in cases of (1) “clerical errors in the judgment itself” or (2) “fraud upon the federal 

court which led to the denial of the habeas petition”).

But Rule 60 has no bearing here because Florence’s first § 2255 Motion is not final. As 

such, there is no “judgment” in which a “clerical error” could be contained, and there has been 

no “denial of the habeas petition” to which “fraud” could have caused.

Case: 18-13317 Date Filed: 03/14/2019 Page: 4 of 6 
5

B.

A COA, issued by this Court or by the District Court, is required before an 

appeal may be taken from the “final order in a proceeding under section 2255.” 28 

U.S.C. § 2253(c)(1)(B). Here, however, a COA is not required for us to review the 

District Court’s dismissal because the Court dismissed Florence’s Motion for lack 

of subject-matter jurisdiction. See Jackson v. United States, 875 F.3d 1089, 1091 

(11th Cir. 2017) (per curiam) (stating that dismissal for lack of subject-matter 

jurisdiction is not a final order under § 2253(c) because the “key inquiry is whether 

the order disposed of the merits of the proceeding”). 

Satisfied that we have jurisdiction to entertain this appeal, we turn to the 

District Court’s jurisdiction. 

C.

We review de novo a district court’s dismissal of a habeas petition for lack 

of subject-matter jurisdiction. Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 

2015). The District Court erred in dismissing Florence’s Motion, which we have 

said must be construed as a motion for relief under § 2255. Florence met the 

jurisdictional prerequisites because he is in custody, see 28 U.S.C. § 2255(a), and 

because—though lack of authorization from this Court to file a “second or 

successive” motion deprives a district court of jurisdiction, see Farris v. United 

States, 333 F.3d 1211, 1216 (11th Cir. 2003) (per curiam)—the Motion here is not 

Case: 18-13317 Date Filed: 03/14/2019 Page: 5 of 6 
6

“second or successive” as that term is used in 28 U.S.C. § 2244(b). As such, the 

Court should have exercised jurisdiction. 

II.

We accordingly REVERSE the District Court’s order of dismissal for lack 

of subject-matter jurisdiction and REMAND this case for further proceedings. 

The Court shall treat Florence’s Motion as a motion for relief under § 2255. In so 

doing, it shall (1) “notify [Florence] that it intends to recharacterize the pleading,”

(2) “warn [Florence] that this recharacterization means that any subsequent § 2255 

motion will be subject to the restrictions on ‘second or successive’ motions,” and 

(3) “provide [Florence] an opportunity to withdraw the motion or to amend it so 

that it contains all the § 2255 claims he believes he has.” Castro v. United States, 

540 U.S. 375, 383, 124 S. Ct. 786, 792 (2003). If Florence proceeds on this new 

claim, the Court shall begin by analyzing in the first instance whether the claim is 

time barred under 28 U.S.C. § 2255(f) (imposing a one-year statute of limitations). 

SO ORDERED. 

Case: 18-13317 Date Filed: 03/14/2019 Page: 6 of 6