Case: 19-10596 Date Filed: 09/23/2019 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10596
Non-Argument Calendar
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D.C. Docket No. 1:15-cr-20531-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEPHEN TELEMAQUE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 23, 2019)
Before WILSON, ANDERSON, and HULL, Circuit Judges.
PER CURIAM:
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Stephen Telemaque, a federal prisoner serving a 180-month prison term,
appeals the district court’s denial of his Fed. R. Civ. P. 60(b) motion. We affirm.
The 2015 Criminal Case (15-20531)
In 2015 Telemaque was convicted of violations of 21 U.S.C. § 841(b)(1)(C)
and 18 U.S.C. §§ 111 (a)(1) and (b). He pled guilty to one count under a written
plea agreement. He later moved to withdraw his plea; the district court denied the
motion to withdraw but permitted Telemaque to challenge relevant sentencing
factors. The district court ultimately sentenced Telemaque to 180 months. This
Court affirmed the district court’s denial of Telemaque’s motion to withdraw.
The 2018 § 2255 Motion (18-23516)
In 2018 Telemaque filed a motion to vacate his sentence under 28 U.S.C. §
2255, asserting ineffective assistance of counsel. The district court denied the
motion to vacate. This Court declined to grant Telemaque a certificate of
appealability to appeal the denial of his § 2255 motion. Telemaque also moved to
amend his § 2255 motion, which the district court denied. Telemaque appealed
that decision, and this Court has opened a separate appeal (18-14757) with respect
to Telemaque’s appeal of the district court’s denial of his motion to amend his
2018 § 2255 motion. A briefing schedule has been set in appeal No. 18-14757.
Rule 60(b) Motions (15-20531 and 18-23516)
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Telemaque has now filed identical motions under Federal Rule of Civil
Procedure 60(b) in both the 2015 criminal case and the 2018 civil case. In the
2018 civil case, the district court dismissed for lack of jurisdiction, concluding that
the Rule 60(b) motion constituted an unauthorized second or successive § 2255
motion. Telemaque appealed that order, which was dismissed for want of
prosecution.
In the 2015 criminal case, the district court denied the Rule 60(b) motion
because the Federal Rules of Civil Procedure cannot be used to seek relief in a
criminal case. This is the appeal of that decision.
This Appeal
We review the denial of a Rule 60(b) motion for reconsideration for abuse of
discretion. Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). Rule 60(b)
motions may relieve a party from a judgment due to: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence which could not
have been discovered earlier with due diligence; (3) fraud, misrepresentation, or
other misconduct of an adverse party; (4) a void judgment; (5) a judgment that has
been satisfied, released, discharged, reversed, or vacated; or (6) any other reason
justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). Rule
60 generally does not provide relief from judgment in a criminal case. See United
States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).
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A prisoner may file a Rule 60 motion on a “limited basis” to allege a defect
in the integrity of his habeas proceedings with respect to the denial of his § 2255
motion. Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007). The
Supreme Court, in Gonzalez v. Crosby, explained that the Federal Rules of Civil
Procedure apply to habeas proceedings to the extent that they are “not inconsistent
with applicable federal statutory provisions.” 545 U.S. 524, 529 (2005) (quotation
marks omitted).1
Telemaque raises two alleged defects in his habeas proceedings: (1) that the
district court failed to hold his Rule 60(b) motion in abeyance due to United States
v. Phifer, 909 F.3d 372 (11th Cir. 2018), and (2) that the district court did not
permit him to amend his motion pending the outcome of Phifer. Neither of the
actions complained of occurred in the case below, the 2015 criminal case (15-
20531). Rather, both Telemaque’s request to hold his Rule 60(b) motion in
abeyance and the denial of his request to amend occurred in the 2018 civil case
(18-23516).
Telemaque has appealed these alleged defects in the wrong proceeding. His
first claim should have been raised in his appeal in his civil habeas case where he
1
Although the Supreme Court in Gonzalez noted that it was limiting its consideration to
28 U.S.C. § 2254 cases, we have held that the standard announced in Gonzalez applies to federal
prisoner cases as well. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en
banc), overruled on other grounds by McCarthan v. Dir. Of Goodwill Indus.-Suncoast, Inc., 851
F.3d 1076 (11th Cir. 2017) (en banc).
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filed his request to hold his Rule 60(b) motion in abeyance. His second claim is at
issue in his pending appeal in appeal no. 18-14757, and we decline to address it
here. We accordingly affirm.
AFFIRMED.
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