[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15992 February 2, 2006
_____________ THOMAS K. KAHN
CLERK
ETHERIA VERDELL JACKSON,
Petitioner-Appellant,
versus
JAMES CROSBY, Secretary,
Florida Department of Corrections,
Respondent-Appellee.
__________________________
On Appeal from the United States District Court
Middle District of Florida
__________________________
(February 2, 2006)
Before TJOFLAT, BLACK AND CARNES, Circuit Judges.
BY THE COURT:
Before the court is Petitioner’s motion for reconsideration of our February
14, 2005 order denying Petitioner’s application for a certificate of appealability.
Although an intervening decision of the Supreme Court makes clear that the
district court’s resolution of Petitioner’s motion for relief from judgment relied on
an erroneous understanding of the procedural law, the Petitioner’s motion for
reconsideration is denied because relief under Rule 60(b) is nonetheless
unavailable under these circumstances.
I.
On December 15, 2003, the district court entered a final order denying
Petitioner’s second amended petition for habeas corpus relief from his state-court
conviction and sentence for capital murder. On January 5, 2004, Petitioner filed a
motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure
59(e).1 The motion was denied without explanation in a January 29, 2004 order of
the district court. On February 27, 2004, Petitioner filed a notice of appeal and an
application for certificate of appealability in the district court. The notice stated
that Petitioner was seeking to appeal both the final judgment of December 15,
2003 and the order of January 29, 2004.
In an order dated March 16, 2004, the district court granted a partial
certificate of appealability. In the district court’s view, Petitioner had
1
Petitioner’s motion also asked the district court for alternative forms of relief not
relevant here.
2
demonstrated that the court’s ruling on one of his substantive claims for relief—a
claim that he should have been resentenced after the Florida Supreme Court
determined on direct appeal that the trial court had relied on an improper
aggravating factor—was “debatable by jurists of reason.” Thus, Petitioner had
made the “substantial showing of the denial of a constitutional right” required for
the issuance of a certificate of appealability under 28 U.S.C. § 2253(c)(2).
On April 7, 2004, however, we sua sponte dismissed Petitioner’s
substantive appeal for lack of jurisdiction. Notwithstanding the district court’s
own doubts about its resolution of the merits of Petitioner’s claim, we held that
Petitioner’s notice of appeal was not timely filed with respect to the final judgment
denying his petition. His Rule 59(e) motion in the district court was untimely
because Petitioner failed to file it within ten days of the entry of final judgment, as
Rule 59(e) requires. Because the Rule 59(e) motion was untimely, it was
inoperative to toll the filing period for a notice of appeal of the ruling on the
underlying petition, and Petitioner’s notice of appeal was filed well after the 30-
day deadline from the entry of judgment imposed by Fed. R .App. P. 4(a)(1)(A).2
2
Because the notice of appeal was timely as to the district court’s order denying relief
under Rule 59(e), we allowed the appeal to proceed from that order, with Petitioner’s motion
construed as a motion for relief from judgment under Fed. R. Civ. P. Rule 60(b). We allowed the
appeal to proceed, despite the fact that no certificate of appealability was issued for the Rule
59(e) ruling, and despite the fact that the panel had already held that the Rule 59(e) motion was
not timely filed. That appeal, No. 04-10986-P, has been held in abeyance. In light of our
3
After the substantive appeal was dismissed, Petitioner moved for
reconsideration of our order, and we affirmed the dismissal in a July 9, 2004
published opinion. See Jackson v. Crosby, 375 F.3d 1291 (11th Cir. 2004)
(“Jackson I”). We rejected Petitioner’s argument that his Rule 59(e) motion
should be treated as timely under the “unique circumstances” doctrine because of
his attorney’s good-faith reliance on his interpretation of a local rule of the district
court and on the representations of a clerk’s office employee regarding the
customary application of that rule to Rule 59 motions. See id. at 1298.
Following our dismissal, Petitioner returned to the district court and filed
what he styled as a motion for relief from judgment under Federal Rule of Civil
Procedure 60(b). The motion did not identify which subsection of Rule 60(b) was
being relied upon, but the gist of the motion was that one of Petitioner’s attorneys
had been lulled into complacency in filing Petitioner’s original Rule 59(e) motion
by a long-standing but invalid local rule on the computation of filing deadlines,
and that the district court’s discretion to grant equitable relief under Rule 60(b)
extends to such a situation, even if the “unique circumstances” doctrine does not.
As relief, the motion essentially prayed for the district court to take
decision in this order, and in light of the panel’s previous decision regarding that untimeliness of
the Rule 59(e) motion, Petitioner’s parallel appeal in No. 04-10986-P is DISMISSED.
4
whatever action would be sufficient to restart the filing period for a notice of
appeal and allow Petitioner to seek review of the district court’s final judgment on
the underlying habeas petition. Thus, the motion included the following prayer for
relief:
Mr. Jackson is seeking relief from the filing of the Rule 59(e) motion
deemed to be untimely by the 11th Circuit and the filing the Notice of
Appeal. Reentry of the order denying the Petition for Writ of Habeas
Corpus to allow filing a timely Notice of Appeal therefrom might
suffice. If greater action would be required to trigger a new appellate
period, Petitioner respectfully urges that this Court would be free to
order an evidentiary hearing on one or more of the issues raised in the
Petition. In the alternative, this Court could reverse its denial of the
issue it certified to be appealable . . . Another possible form of relief
would be to convert Petitioner’s Motion to Alter or Amend to a
Notice of Appeal, given that appeal was inevitable regardless of the
outcome of the motion. Petitioner further prays for any other
equitable or legal relief which would allow him to appeal his Petition
for the Great Writ as was always intended.
On October 27, 2004, the district court dismissed Petitioner’s motion for
lack of jurisdiction,3 relying on our then-controlling en banc ruling in Gonzalez v.
Sec’y for Dep’t of Corr., 366 F.3d 1253 (11th Cir. 2004) (en banc) (“Gonzalez
II”). In effect, Gonzalez II held that “district courts do not have . . . jurisdiction to
3
After discussing the jurisdictional issue rather extensively, the district court alternatively
denied the Rule 60(b) motion in a one-line statement, saying only, “alternatively, if the Court has
jurisdiction, the Rule 60(b) Motion is Denied.” Although the district court failed to discuss
whether the Petitioner would be entitled to Rule 60(b) relief, as we explain below, the complete
lack of merit in the Petitioner’s Rule 60(b) motion renders a certificate of appealability entirely
inappropriate.
5
consider Rule 60(b) motions to reconsider the denial of a habeas petition unless
the motion is a 60(b)(3) motion . . . to prevent fraud upon the court.” Id., accord
Boone v. Sec’y of Dep’t of Corr., 377 F.3d 1315, 1317 (11th Cir. 2004) (per
curiam). The reasoning behind this holding was that, aside from a Rule 60(b)
motion alleging fraud upon the court, any “attempt to reopen a final habeas
judgment pursuant to Rule 60(b) is to be treated as an application to file a second
or successive [habeas] petition [and therefore] ordinarily should be dismissed by
the district court pursuant to [28 U.S.C.] § 2244(b)(4).”4 Gonzalez II, 366 F.3d at
4
Section 2244 provides, in part:
(a) No circuit or district judge shall be required to entertain an application for a
writ of habeas corpus to inquire into the detention of a person pursuant to a
judgment of a court of the United States if it appears that the legality of such
detention has been determined by a judge or court of the United States on a proper
application for a writ of habeas corpus, except as provided in section 2255.
(b)(1) A claim presented in a second or successive habeas corpus application
under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be dismissed
unless–
(A) the applicant shows that the claim relied on a new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in the light of the
evidence as a whole, would be sufficient to establish by clear and
6
1277.
On December 17, 2004, the district court denied Petitioner’s application for
a certificate of appealability. On February 14, 2005, we issued an order doing the
same. Petitioner now moves for reconsideration our February 14 order denying
his application for a certificate of appealability.5 For the reasons discussed below,
we deny his motion for reconsideration.
After the district court dismissed Petitioner’s Rule 60(b) motion, and after
we first denied his application for a certificate of appealability, the Supreme Court
on June 23, 2005 rejected the broad rule we had announced in Gonzalez II
regarding when a Rule 60(b) motion asking for relief from a final judgment on a
habeas petition should be treated as a “second or successive habeas corpus
application” under 28 U.S.C. § 2244(b). See Gonzalez v. Crosby, __ U.S. ___,125
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.
(3)(A) Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider the application.
****
(4) A district court shall dismiss any claim presented in a second or successive
application that the court of appeals has authorized to be filed unless the applicant
shows that the claim satisfies the requirements of this section.
5
Petitioner’s motion is styled as a “Motion for Rehearing of Application for Certificate of
Appealability.” We construe this as a motion for reconsideration of our February 14 order
denying Petitioner’s application for a certificate of appealability.
7
S. Ct. 2641, 162 L. Ed. 2d 480 (2005) (“Gonzalez III”).6 The Court held that “a
Rule 60(b)(6) motion in a [28 U.S.C.] § 2254 case is not to be treated as a
successive habeas petition [and thus subject to the precertification requirements of
28 U.S.C. § 2244(b)] if it does not assert, or reassert, claims of error in the
movant’s state conviction.” Id. at 2651.
II.
Normally, when reviewing on direct appeal a ruling relying substantially
upon precedent later overruled by the Supreme Court, we would simply remand
the case to the district court for reconsideration in light of the intervening Supreme
Court decision. Here, however, we lack jurisdiction even to effect a remand until
Petitioner is granted a certificate of appealability. It is still the law of this circuit
that “a certificate of appealability is required for the appeal of any denial of a Rule
60(b) motion for relief from a judgment in a [28 U.S.C.] § 2254 or [28 U.S.C.] §
2255 proceeding.” Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1263
(11th Cir. 2004) (“Gonzalez II”); see also Lazo v. United States, 314 F.3d 571,
6
While our en banc decision was handed down in three consolidated cases, the Supreme
Court granted certiorari only on Gonzalez’s petition, and it limited its grant to one question
presented in the petition: “Whether the [Court of Appeals] erred in holding that every Rule 60(b)
motion (other than for fraud under (b)(3)) constitutes a prohibited “second or successive” petition
as a matter of law, in square conflict with decisions of this Court and of other circuits.” Petition
for Writ of Certiorari, Gonzalez v. Sec’y for the Dep’t of Corr., 2004 WL 3106265: see Gonzalez
v. Crosby, ___U.S. ___, 125 S. Ct. 961, 160 L. Ed. 2d 896 (2005) (limiting the grant of certiorari
to Question 1 in the petition).
8
574 (11th Cir. 2002), vacated by Gonzalez v. Sec’y for Dep’t of Corr., 326 F.3d
1175 (11th Cir. 2003) (“Gonzalez I”). The Supreme Court did not endorse this
position, but it also did not disturb it. See Gonzalez v. Crosby, __ U.S. ___, 125
S. Ct. 2641, 2650 n. 7, 162 L. Ed. 2d 480 (2005) (“Gonzalez III”).
The question thus becomes whether, as a threshold determination, the
Petitioner is entitled to a certificate of appealability to challenge the district court’s
order dismissing, and alternatively denying, his Rule 60(b) motion. We find that
the Petitioner is not entitled to a certificate of appealability.
As we explained in Gonzalez II, in cases involving denials of Rule 60(b)
motions on procedural grounds without reaching the merits of any constitutional
claims, such as this one, a petitioner will be granted a certificate of appealability
“only if [he] makes both a substantial showing that he had a valid claim of the
denial of a constitutional right, and a substantial showing that the procedural
ruling is wrong,” 366 F.3d at 1267, accord Slack v. McDaniel, 529 U.S. 473, 484,
120 S. Ct. 1595, 1603-04, 146 L.Ed. 2d 542 (2000) (emphasis added).7 These two
7
As the Supreme Court held in Slack:
When the district court denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.
Slack, 529 U.S. at 484, 120 S. Ct. At 1604.
9
“substantial showings,” both procedural and substantive, mean that it must be
“debatable among reasonable jurists” both that the petitioner was denied a
constitutional right, and that the district court’s procedural decision was wrong.
See Gonzalez II, 366 F.3d at 1268.
The Court explained in Slack that a court of appeals can only entertain an
appeal of the dismissal of a petition on procedural grounds after reviewing the
underlying constitutional claims (i.e., whether the habeas claims have any merit),
as well as the district court’s procedural holding. See Slack, 519 U.S. at 484-85,
120 S. Ct. At 1604. The court is guided, however, by the principle that it will not
pass upon any constitutional questions in the record if the case can be disposed of
on other grounds, i.e., procedural grounds such as entitlement to relief under Rule
60(b). See id., accord Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L.
Ed. 688 (1936) (Brandeis, J., concurring). In this case, because Petitioner is not
entitled to relief under Rule 60(b), neither we nor the district court need reach the
constitutional analysis mandated by Slack.
A district court’s denial of relief under Rule 60(b) is reviewable for abuse of
discretion. See High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990), cert. denied,
499 U.S. 954 (1991). A district court by definition abuses its discretion in relying
on an erroneous interpretation of applicable law. See Mincey v. Head, 206 F.3d
10
1106, 1137, n. 69 (11th Cir. 2000); Alexander v. Fulton County, Ga., 207 F.3d
1303, 1326 (11th Cir. 2000). In this case, while Petitioner can make a substantial
showing that the reasoning behind the district court’s procedural ruling, which was
based on our en banc Gonzalez decision, was wrong due to the recent Supreme
Court Gonzalez decision, we nonetheless deny Petitioner’s request for a certificate
of appealability. It is clear from the record before us that the Petitioner would not
in any event be entitled to relief under Rule 60(b), even though the district court
never explicitly discussed Petitioner’s alleged grounds for relief from judgment.
See Mincey, 206 F.3d at 1137, n. 69; Alexander, 207 F.3d at 1326; see also Brown
v. Head, 349 F.3d 1291, 1294 (11th Cir. 2003) (holding that petitioner was not
entitled to a certificate of appealability after he was given an opportunity to rebut
findings on the merits of his claims, but was unable to do so).
As highlighted above, Petitioner’s Rule 60(b) motion simply urged the
district court to take whatever action would be sufficient to restart the filing period
for a notice of appeal. The Petitioner asked the district court to accomplish this
task by reentering its order denying his petition for writ of habeas corpus to allow
him to file a timely notice of appeal therefrom, or otherwise to use the court’s
discretionary equitable powers to allow the time to file an appeal to restart after its
expiration. In other words, Petitioner was not asking for relief from any order of
11
the district court, but was instead attempting to resuscitate the time to file an
appeal by asking the district court to circumvent an order from this court
dismissing the appeal as untimely.
As such, it would certainly be in error for the district court to grant the relief
requested by the Petitioner. See, e.g., Cavaliere v. Allstate Ins. Co., 996 F.2d
1111, 1115 (11th Cir. 1993) (quoting Burnside v. Eastern Airlines, Inc., 519 F.2d
1127, 1128 (5th Cir. 1975) (“The well-recognized rule . . . precludes the use of a
Rule 60(b) motion as a substitute for a proper and timely appeal.”)). This case is
similar to the appeal in Dunn v. Cockrell, 302 F.3d 491 (5th Cir. 2002), where the
habeas petitioner attempted to gain a second chance at a timely appeal through a
Rule 60(b) motion. The Fifth Circuit explained that “[t]he sole basis for the
motion was to vacate and re-enter the judgment to allow [petitioner] to file a
timely notice of appeal which was not done initially because of the negligence of
his attorneys,” and as such the petitioner could not use Rule 60(b) as a substitute
for a timely appeal. Id. at 492; see also United States v. O’Neil, 709 F.2d 361, 373
(5th Cir. 1983) (holding that Rule 60(b) cannot be used to circumvent the finality
of judgments, as where the Rule 60(b) motion “is made after the time for appeal
has expired, and the movant neither complains of any denial of a full and fair
hearing before the district court nor seeks by the motion to have the district court
12
alter its ruling, but rather asks only that the order be vacated and reentered.”).
We agree with this reasoning. Similar to the claims attempted in Dunn, here
the Petitioner is merely aiming to gain a second chance at a timely appeal through
the use of a Rule 60(b) motion. This he cannot do. See Gonzalez II, 366 F.3d at
1268; Dunn, 302 F.3d at 492. Petitioner is therefore not entitled to a certificate of
appealability from the denial of that motion, and his motion for reconsideration of
this court’s February 14, 2005 order is accordingly DENIED.
SO ORDERED.
13