[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 06-12804 ELEVENTH CIRCUIT
July 3, 2007
_____________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 04-00066-CV-RV-EMT
EDWARD J. ZAKRZEWSKI, II,
Petitioner-Appellant,
versus
JAMES McDONOUGH, Secretary,
Florida Department of Corrections,
BILL McCOLLUM, Attorney General
of Florida,
Respondents-Appellees.
_________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________
(July 3, 2007)
Before EDMONDSON, Chief Judge, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Edward J. Zakrzewski (“Petitioner”) appeals the district court’s
denial of his motion seeking post-judgment relief pursuant to Fed. R. Civ. P. 60(b)
on the basis that his former habeas counsel, John W. Nall (“Nall”), perpetrated a
fraud on the court. The district court construed Petitioner’s 60(b) motion to be a
second or successive habeas petition and denied the motion for lack of
jurisdiction. Because we conclude that Petitioner’s 60(b) motion was no second or
successive habeas petition, we vacate the district court’s judgment and remand for
consideration of the merits of the motion.
I. Background
Petitioner was convicted and sentenced to death for the 1994 murders of his
wife and two children. On direct appeal, Petitioner’s convictions and death
sentence were affirmed. Zakrzewski v. State, 717 So. 2d 488 (Fla. 1998).
Petitioner then sought and was denied post-conviction relief in state court.
Zakrzewski v. State, 866 So. 2d 688 (Fla. 2003). Later, the district court denied
Petitioner federal habeas relief; and this Court affirmed. Zakrzewski v.
McDonough, 455 F.3d 1254 (11th Cir. 2006) (“Zakrzewski I”), cert. denied, 127
S. Ct. 2051 (2007). Petitioner then sought relief from judgment under Fed. R. Civ.
P. 60(b).
Petitioner alleges these facts, which we assume are true for purposes of this
appeal. In January 2004, Petitioner’s state post-conviction counsel, Baya Harrison
2
(“Harrison”),1 sent a letter to Petitioner asking him to sign and to return a proposed
federal habeas petition to prevent it from being time-barred. The letterhead on the
transmittal letter read “Harrison and Nall, Attorneys at Law.” In the letter,
Harrison informed Petitioner that Harrison would continue to work on the case but
that Nall would “sign the pleadings as the attorney” because Nall, and not
Harrison, was admitted to practice before the United States District Court for the
Northern District of Florida. Petitioner then signed and returned the federal
habeas petition. Soon thereafter, Petitioner sent letters to Harrison, Nall, and the
state courts, in which Petitioner complained that he had never heard of nor met
Nall before he signed the federal habeas petition, that the petition was inadequate,
and that he had only signed the petition under the threat of being time-barred.
In February 2004, Nall filed Petitioner’s federal habeas petition, which Nall
had signed as Petitioner’s counsel. Two weeks later, Nall filed a motion seeking
appointment as Petitioner’s counsel under the Criminal Justice Act during
Petitioner’s federal habeas proceedings. In that motion, Nall represented to the
district court, among other things, these facts: (1) that he was the partner of
Harrison; (2) that he was thoroughly familiar with Petitioner’s case; and (3) that he
1
Harrison had been appointed earlier by the state courts and was still Petitioner’s state “registry
counsel” when the federal petition was filed.
3
had a “good relationship” with Petitioner. On 11 March 2004, the district court
granted the motion to appoint and to pay Nall as Petitioner’s counsel, nunc pro
tunc to 13 November 2003. In April 2004, Petitioner filed a complaint against
Nall with the Florida Bar, alleging that Petitioner had never met with or discussed
his case with Nall, the habeas petition prepared by Nall was inadequate, and Nall
had not kept Petitioner reasonably informed.
It was not long before Petitioner expressed his dissatisfaction with his
counsel to the district court. On 4 May 2004, Petitioner filed pro se an emergency
motion for the appointment of new counsel, which alleged that Petitioner had
never met with or discussed his case with Nall and Nall had not cooperated with
Petitioner’s requests for information. Petitioner asserted that he had consented to
Nall’s representation only under the threat of time-bar, that Nall’s representation
was incompetent, and that Petitioner had filed a bar complaint against Nall. The
district court summarily denied this motion on 7 June 2004.
On 19 July 2004, after the habeas petition, response, and reply were
submitted and while the parties awaited the decision of the court, Nall filed a
motion to withdraw, which informed the district court that Nall did not have a
good relationship with Petitioner and that Harrison would no longer be assisting
with the case. The district court summarily denied this motion the following day.
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When Petitioner continued to file pro se pleadings, the district court ordered these
papers returned to Petitioner, reasoning that Petitioner had appointed counsel and
could not file pleadings pro se. On 24 August 2004, Petitioner filed a final motion
to dismiss counsel and proceed pro se, which reiterated Petitioner’s dissatisfaction
with the quality of Nall’s representation, alleged that Nall was uncooperative and
had refused to talk with Petitioner or file his pro se papers, and reminded the court
that Petitioner had filed a bar complaint against Nall. That motion was summarily
denied.
On 30 September 2004, the district court issued an order denying the
petition for writ of habeas corpus. We affirmed the district court’s denial of the
petition for writ of habeas corpus. Zakrzewski I, 455 F.3d at 1261.
While Petitioner’s federal habeas appeal to this Court was pending,
Petitioner, through new counsel, filed in the district court a motion for relief from
judgment under Fed. R. Civ. P. 60(b), asserting fraud on the court as well as on
Petitioner. Petitioner alleged that Nall had made fraudulent representations to the
district court in obtaining appointment as Petitioner’s counsel and fraudulent
representations to Petitioner in obtaining Petitioner’s consent to Nall’s
representation. He also argued that this fraud “denied Petitioner of his right to due
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process and his right to full and fair access to [the district court], and it
subsequently led to the denial of Petitioner’s habeas petition.”
While the district court was considering Petitioner’s motion, Petitioner
pursued in this Court his appeal of the denial of habeas relief. Petitioner’s initial
appellate brief included extensive arguments about the denial of his motion for
new counsel, and argued that the district court “should have realized that Nall was
not thoroughly familiar with Zakrzewski’s case, that he did not know Zakrzewski,
[and] that he was not acting on Zakrzewski’s behalf.” The Warden successfully
sought to strike this part of the brief as beyond the scope of the certificate of
appealability. Petitioner then moved this Court to expand the certificate of
appealability, but we declined.
Meanwhile, the district court summarily denied Petitioner’s 60(b) motion
for lack of jurisdiction. Petitioner then filed a motion under Rule 59(e) to alter or
amend the judgment. The district court denied the 59(e) motion and explained
that, under Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005), Petitioner’s
60(b) motion was a second or successive habeas petition that the district court was
without jurisdiction to hear.2 The district court reasoned that, in examining the
2
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) bars a district court
from hearing a “second or successive” habeas petition based on a new claim unless the court of
appeals has determined that the new claim is based on either (1) a new and retroactive rule of
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true “nature of the Rule 60(b) motion, rather than the substance of the motion
itself,” Petitioner’s allegations of fraud by Nall were in essence a claim for
ineffective assistance of counsel during the federal habeas proceedings. After
concluding that Petitioner was “in reality seeking to present new claims which
were omitted by his previous counsel,” the district court denied Petitioner’s 59(e)
motion and reaffirmed the denial of Petitioner’s 60(b) motion for lack of
jurisdiction. The district court granted a certificate of appealability on the denial
of the 60(b) motion: the final order from which this appeal lies.
II. Discussion
We review de novo questions on the jurisdiction of the district court.
United States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998) (per curiam).
If Petitioner’s 60(b) motion is not really a second or successive habeas
petition, the district court has jurisdiction to consider the merits of the motion. In
Gonzalez v. Crosby, 545 U.S. 524, 125 S. Ct. 2641 (2005), the Supreme Court
discussed criteria for determining when a Rule 60(b) motion in a habeas case
should be treated as an attempt to circumvent the AEDPA limitations on second or
successive petitions. The Court held that “a Rule 60(b)(6) motion in a § 2254 case
constitutional law or (2) new facts showing a high probability of actual innocence. 28 U.S.C. §
2254(b).
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is not to be treated as a successive habeas petition if it does not assert, or reassert,
claims of error in the movant’s state conviction.” Id. at 538, 125 S. Ct. at 2651.
In this case, the district court erred in concluding that Petitioner’s 60(b)
motion was a successive habeas petition that the district court was without
jurisdiction to hear. Petitioner’s motion does not assert or reassert allegations of
error in his state convictions. Thus, Petitioner’s 60(b) motion is not a second or
successive habeas petition, and the district court has jurisdiction to consider the
motion and to decide its merits.
Though we express no opinion on the merits of Petitioner’s motion, we note
that our precedents set a high standard for granting postjudgment relief under Rule
60(b). “‘Fraud upon the court’ . . . embrace[s] only that species of fraud which
does or attempts to, defile the court itself, or is a fraud perpetrated by officers of
the court so that the judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for adjudication.” Travelers
Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir. 1985). We encourage the
district court to consider the following several questions of fact as it determines
whether Petitioner has established “sufficiently extraordinary” circumstances,
Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000), that
would entitle him to relief under Rule 60(b): (1) whether Nall made a material
8
misrepresentation to Petitioner, upon which he relied to his detriment, regarding
the filing of Petitioner’s petition for habeas relief; (2) whether Nall made a
material misrepresentation to the district court upon which it relied in its decision
to appoint Nall as counsel; (3) whether Petitioner ratified any alleged wrongful
acts by Nall; (4) whether and to what extent the district court considered the
alleged misrepresentations of Nall when the district court denied Petitioner’s
motion for new counsel; (5) whether and to what extent the district court
considered the alleged misrepresentations of Nall when the district court denied
Nall’s motion to withdraw; and (6) whether and to what extent the district court
considered the alleged misrepresentations of Nall when the district court denied
Petitioner’s motion to proceed pro se.
III. Conclusion
We vacate the district court’s denial of Petitioner’s 60(b) motion for lack of
jurisdiction and remand for further proceedings consistent with this opinion.
VACATED and REMANDED.
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