United States v. Randy Wilcher

Case: 16-11539 Date Filed: 08/23/2018 Page: 1 of 6

[DO NOT PUBLISH]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.

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.

2
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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.
3
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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).
4
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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).
5
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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.