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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-12329
Non-Argument Calendar
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D.C. Docket Nos. 8:14-cv-00939-RAL-MAP,
8:12-cr-00301-RAL-MAP-2
SHAWN LOUIS SUTTER,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 20, 2017)
Before HULL, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Shawn Louis Sutter, a federal inmate proceeding pro se, appeals the district
court’s denial of his motions for leave to file an oversized Rule 60(b) motion 1 and
for discovery related to his Rule 60(b) motion, both of which were filed after he
appealed the district court’s denial of his 28 U.S.C. § 2255 motion to vacate. In
this appeal, Sutter argues that the district court erred in concluding that it lacked
jurisdiction over these motions. Sutter also asks us to vacate all orders entered by
the district court judge, asserting that Judge Lazzara is biased against him and has
engaged in judicial misconduct. After careful review, we vacate and remand in
part and dismiss in part.
I. BACKGROUND
Sutter pled guilty to conspiracy to distribute and possess with intent to
distribute 50 grams or more of methamphetamine and 500 grams or more of a
mixture or substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The district court sentenced him
to 240 months of imprisonment, followed by 10 years of supervised release. Sutter
did not appeal this sentence. Instead, he filed, pro se, a motion under § 2255
challenging his sentence. The district court denied Sutter’s § 2255 motion and
declined to issue him a certificate of appealability (“COA”).
1
See Fed. R. Civ. P. 60(b) (permitting a district court to “relieve a party . . . from a final
judgment” for certain limited reasons).
2
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Sutter filed a notice of appeal and a motion for a COA in this Court, which
this court ultimately denied. After Sutter filed his notice of appeal, he then filed in
the district court a motion for leave to file an oversized Rule 60(b) motion, to
which he attached his proposed Rule 60(b) motion, and a motion for discovery in
aid of the Rule 60(b) motion (together, the “post-judgment motions”). The district
court denied 2 the post-judgment motions for lack of subject matter jurisdiction,
citing Sutter’s appeal pending with this Court.
Sutter filed a notice of appeal from the district court’s denial of his post-
judgment motions and a motion for reconsideration. He also moved for leave to
proceed in forma pauperis, which the district court denied along with Sutter’s
motion for reconsideration. We denied Sutter a COA for his § 2255 motion, but
granted him leave to proceed in forma pauperis only as to the instant appeal.
II. DISCUSSION
On appeal, Sutter argues first that the district court erred in denying for lack
of jurisdiction his post-judgment motions, and second that this Court should vacate
all orders by the district court judge because he is biased against Sutter and has
engaged in judicial misconduct. We address his arguments in turn.
2
We note that the proper disposition of a motion where the court lacks jurisdiction is
dismissal, not denial.
3
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A. Post-Judgment Motions
Sutter argues that the district court retained jurisdiction to consider his post-
judgment motions while Sutter’s appeal was pending in this Court, and the
government agrees. The parties are correct.
We review the district court’s determination that it lacked subject matter
jurisdiction de novo. Mahone v. Ray, 326 F.3d 1176, 1178 (11th Cir. 2003).
Generally, the filing of a notice of appeal deprives the district court of jurisdiction
over the issues on appeal. Id. at 1179. The district court retains jurisdiction,
however, to take action “in furtherance of the appeal,” and over matters collateral
to those issues on appeal. Id. (internal quotation marks omitted). Actions “in
furtherance of the appeal” include entertaining a Rule 60(b) motion. Id. at 1180.
Although the district court lacks authority to grant outright a Rule 60(b) motion
once a party has filed a notice of appeal, the court can consider the merits of the
motion and indicate that it is meritorious. Id. If the court indicates that the movant
raised meritorious arguments, the movant can move in this Court to remand the
case to the district court. Id.
Because the district court could have considered the merits of Sutter’s Rule
60(b) motion had it been filed, the court erred in ruling that it lacked jurisdiction to
consider the merits of Sutter’s post-judgment motions. In addition, the post-
judgment motions concerned matters collateral to the § 2255 appeal and thus were
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within the district court’s jurisdiction to entertain. We vacate the court’s order
denying the post-judgment motions and remand with instructions to consider the
motions’ merits.
B. Judge Lazzara’s Alleged Personal Bias
Sutter additionally argues that Judge Lazzara was biased against him and
engaged in judicial misconduct. Sutter lacks a COA as to his claims of bias and
misconduct, however. He asserts that this Court needs no COA to address Judge
Lazzara’s bias because he is not asking us to consider the merits of his Rule 60(b)
motion, but instead asks that we order a remedy for Judge Lazzara’s alleged
judicial misconduct. But the remedy he requests is that we vacate all orders
entered by Judge Lazzara, including the denial of his § 2255 motion. Put
differently, the remedy he requests is equivalent to granting his Rule 60(b) motion.
Because the district court did not entertain the merits of Sutter’s Rule 60(b)
motion, it had no occasion to grant him a COA; for this same reason, nor do we. A
COA is required for any appeal of the denial of a Rule 60(b) motion. See Gonzalez
v. Sec’y Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir. 2004). And this
requirement is a jurisdictional prerequisite to our review. See Miller-El v.
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Cockrell, 537 U.S. 322, 336 (2003). Because we lack jurisdiction, this part of
Sutter’s appeal is dismissed. 3
IV. CONCLUSION
For the foregoing reasons, we vacate the district court’s order denying
Sutter’s post-judgment motions and remand for the district court to entertain the
motions’ merits. We dismiss the remainder of Sutter’s appeal for lack of subject
matter jurisdiction.
VACATED AND REMANDED IN PART; DISMISSED FOR LACK
OF JURISDICTION IN PART.
3
We note that Sutter filed a motion in the district court requesting that Judge Lazzara
recuse while this appeal remained pending, on the ground that Judge Lazzara formed “personal
bias and prejudice” against him. Mot. for Recusal at 5 (Doc. 49). Judge Lazzara found the
allegations baseless but nonetheless recused himself from Sutter’s case going forward, mooting
Sutter’s motion.
6