[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 24, 2009
No. 08-14482 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00186-CR-5-CC-1
JOHNNY TORRES,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 24, 2009)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Federal prisoner Johnny Torres, proceeding pro se, appeals the district
court’s denial of his motion seeking relief from judgment under Federal Rule of
Civil Procedure 60(b)(5) or (6). The district court found that Torres’ Rule 60(b)
motion was an impermissibly successive 28 U.S.C. § 2255 motion to vacate
pursuant to Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005). The court
also deemed the motion untimely because it was filed twenty-two months after
Torres’ § 2255 motion was denied. Torres argues that because the court did not
address during his § 2255 proceedings his argument that two probation-related
criminal history points should have been eliminated when the court corrected his
sentence, his Rule 60(b) motion reasserting that argument was not a successive
attack on the court’s previous resolution of the issue. He also argues that his
motion was not untimely because extended court proceedings justified any delay.
We review de novo whether a district court has subject matter jurisdiction to
consider a Rule 60(b) motion. Williams v. Chatman, 510 F.3d 1290, 1293 (11th
Cir. 2007). Rule 60(b) provides:
On motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the
following reasons:
...
(5) the judgment has been satisfied, released or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b)(5), (6).
2
In Gonzalez, the Supreme Court held that a Rule 60(b) motion may be
treated as a successive § 2254 habeas petition when it seeks to add a new ground
for relief or attacks a federal court’s previous resolution of a claim on the merits.
545 U.S. at 532, 125 S. Ct. at 2648; see also Gonzalez v. Sec’y Dep’t of Corr., 366
F.3d 1253, 1262 (11th Cir. 2004) (“In the context of certificates of appealability
and Rule 60(b) motions, we apply 28 U.S.C. § 2254 and § 2255 cases
interchangeably.”). A Rule 60(b) motion is not a successive habeas petition,
however, if it attacks only “some defect in the integrity of the federal habeas
proceedings.” Gonzalez, 545 U.S. at 532, 125 S. Ct. at 2648. A Rule 60(b) motion
that qualifies as a second or successive habeas petition must comply with the three
requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA).
Williams, 510 F.3d at 1294.
Under AEDPA,
any claim that has already been adjudicated in a previous petition
must be dismissed. Second, any claim that has not already been
adjudicated must be dismissed unless it relies on either a new and
retroactive rule of constitutional law or new facts showing a high
probability of actual innocence. Third, before the district court may
accept a successive petition for filing, the court of appeals must
determine that it presents a claim not previously raised that is
sufficient to meet § 2244(b)(2)’s new-rule or actual-innocence
provisions.
Gonzalez, 545 U.S. at 529–30, 125 S. Ct. 2646 (citations omitted). When a Rule
3
60(b) motion is treated as a successive habeas petition, then, a defendant must ask
us for an order authorizing the district court to consider it. Williams, 510 F.3d at
1295. Without that authorization, the district court lacks subject matter
jurisdiction. Id.
Torres first raised his probation-related criminal history point argument in
his reply to the government’s response to his § 2255 motion. And contrary to
Torres’ assertion to us now, the district court did address it: The court specifically
noted that it had considered Torres’ reply and had weighed “the merits and
demerits” of the parties’ positions in finding for the government. Torres’ Rule
60(b) motion did not attack “some defect in the integrity” of his § 2255
proceeding, Gonzalez, 545 U.S. at 532, 125 S. Ct. at 2648, but simply reasserted
the same argument he had offered in his § 2255 reply. Torres’ Rule 60(b) motion
was thus a successive motion to vacate. Because we did not authorize the district
court to consider Torres’ successive motion, that court lacked jurisdiction to decide
it.1 Accordingly, we vacate the district court’s order denying Torres’ Rule 60(b)
motion and remand with instructions to dismiss the motion for lack of jurisdiction.
VACATED and REMANDED.
1
We do not decide whether Torres’ Rule 60(b) motion was timely filed because, even if
it was, it would still be an impermissible successive motion to vacate and the district court would
not have been authorized to hear it.
4