Case: 14-11770 Date Filed: 04/20/2015 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11770
Non-Argument Calendar
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D.C. Docket No. 4:03-cv-00010-BAE
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
UNITED STATES CURRENCY TOTALING $18,997.89,
Defendant,
BACKUS CADILLAC-PONTIAC, INC.,
Respondent,
DAVID C. PITTMAN, et al.,
Interested Parties,
JOHN RANDALL FUTCH,
Interested Party-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(April 20, 2015)
Before TJOFLAT, MARTIN and ANDERSON , Circuit Judges.
PER CURIAM:
In United States v. Futch, 99 F. App’x 880 (11th Cir. 2004) (Table), we
affirmed appellant John Randall Futch’s conviction in November 2002 on a plea of
guilty to an information charging him with conspiring to possess with intent to
distribute, and to distribute, cocaine, in violation of 21 U.S.C. § 846.1 In April
2005, Futch moved the District Court to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255. The court denied the motion to the extent that it
sought the vacation of his conviction but granted the motion as to his sentence; it
vacated his prison sentence of 240 months and resentenced him to a term of 215
months. Futch appealed the new sentence and simultaneously sought a certificate
of appealability (“COA”) to appeal the denial of § 2255 relief as to his conviction.
We affirmed his sentence, but denied a COA to appeal his conviction. United
States v. Futch, 518 F. 3d 887, 890 (11th Cir. 2008).
1
As we subsequently noted in United States v. Futch, 518 F. 3d 887, 890 (11th Cir.
2008), Futch unsuccessfully appealed the District Court’s denial of his motion to withdraw his
plea of guilty.
2
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On March 10, 2014, Futch moved the District Court pursuant to 28 U.S.C. §
§§ 2255(f)(3) and (4) and Federal Rule of Criminal Procedure 60(b) for relief from
his November 2002 conviction. Citing Kaley v. United States, 134 S. Ct. 1090,
188 L. Ed. 2d 46 (2014), Futch argued that the Government lacked probable cause
to seize $ 19,000 from his bank account; therefore, his original indictment in
United States v. Futch and subsequent conviction for violating 21 U.S.C. § 846
were invalid. The Clerk of the District Court erroneously recorded the motion as
having been filed in an in rem forfeiture action, United States v. United States
Currency Totaling $18,997.89, brought by the Government to obtain forfeiture of
the seized money. Futch ultimately prevailed in that action, and the District Court
had closed case.
The Government, in its response to Futch’s March 10, 2014, motion,
requested that the District Court treat the motion has having been filed pursuant to
28 U.S.C. § 2255 and deny it on the ground that the motion was successive and
that Futch had not obtained leave of the Court of Appeals under 28 U.S.C. §
2255(h) to file it.2 The District Court denied Futch’s motion, and he lodged this
appeal.
2
To avoid having to seek such leave in the Court of Appeals, Futch requested the
District Court to treat his motion as part of the § 2255 motion he had filed earlier, in April 2005.
3
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We treat Futch’s motion as an effort to obtain the vacation of his 21 U.S.C. §
846 conviction and thus a motion under § 2255.3 A prisoner standing in Futch’s
shoes, who previously sought habeas relief, must file a motion in this court seeking
an order authorizing the district court to consider his successive § 2255 motion. 28
U.S.C. § 2244(b)(3). This requirement trumps a prisoner’s ability to file a Rule
60(b) motion to reopen his case. Gonzalez v. Secretary of Dep’t of Corr., 366 F.3d
1253, 1270-71 (11th Cir. 2004) (en banc). Since Futch failed to obtain leave of
this court to file his Rule 60(b) motion for relief from his § 846 conviction, the
District Court lacked authority to entertain the motion and thus properly dismissed
it.
AFFIRMED.
3
We view a motion filed under Fed. R. Crim. P. 60(b) as a habeas corpus application if,
as in the instant situation, it “attacks the federal court’s previous resolution of a claim on the
merits,” and is not deemed a habeas corpus application if it “attacks, not the substance of the
federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal
habeas proceedings.” Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed.
2d 480 (2005).
4