Sean Peters v. United States , 678 F. App'x 890 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15342
Non-Argument Calendar
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D.C. Docket No. 6:09-cr-00082-JA-DAB-1
SEAN PETERS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(February 2, 2017)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Sean Peters appeals the dismissal of his pro se Fed. R. Civ. P. 60(b) motion
construed as a second or successive 28 U.S.C. § 2255 motion to vacate his
sentence, following his conviction for possession of child pornography. His
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original § 2255 motion raised, among other things, a claim that his counsel was
ineffective at his trial for failing to argue that Peters had been compelled to
respond to questioning under threat of employment sanctions, in violation of
Garrity v. New Jersey, 385 U.S. 493 (1967) (holding that a public employee may
not be coerced into surrendering his Fifth Amendment privilege by threat of being
fired or subjected to other sanctions). The district court denied Peters’s § 2255
motion, and concluded that “assuming [Peters] was compelled to make statements,
. . . he did not make any incriminating statements, and regardless, the evidence
would have been found during the search of [Peters’s] residence.” In his Rule
60(b) motion, Peters again raised the Garrity claim in the district court, and noted
that the government had misrepresented facts and law about the claim to the
district court. The district court dismissed Peters’s Rule 60(b) motion for lack of
jurisdiction, holding that the motion simply re-argued his claim, and that he needed
permission from this Court to file a second or successive § 2255 motion. On
appeal, Peters briefly argues that his Rule 60(b) motion was proper, and goes on to
argue the merits of his Garrity claim. After thorough review, we affirm.
We review de novo a district court’s dismissal of a § 2255 motion as second
or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).
Before one may file a second or successive § 2255 motion in the district court, one
must obtain an order from the court of appeals authorizing the district court to
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consider the motion. 28 U.S.C. § 2255(h). Without authorization from this Court,
the district court lacks jurisdiction to consider a second or successive habeas
petition. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). We
generally do not consider arguments raised for the first time in a reply brief.
United States v. House, 684 F.3d 1173, 1210 (11th Cir. 2012).
A Rule 60(b) motion from the denial of a § 2255 motion is considered a
successive motion if it seeks to present a new ground for relief from a judgment of
conviction or if it attacks the federal court’s previous resolution of a claim on the
merits. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (addressing a §
2254 habeas petition). Conversely, a Rule 60(b) motion is permissible if “neither
the motion itself nor the federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant’s . . . conviction.” Id. at
533. Thus, a Rule 60(b) motion would be proper, for example, if it: (1) asserts that
a federal court’s previous ruling that precluded a merits determination was in error;
or (2) attacks a defect in the federal proceeding’s integrity, such as a fraud upon
the court. See id. at 532-35 n.4-5.
We’ve said that, when a federal habeas court already has reached and
resolved the merits of a habeas petitioner’s earlier asserted claims, it looks at a
Rule 60(b) motion challenging that decision with particular skepticism. Franqui v.
Florida, 638 F.3d 1368, 1371 (11th Cir. 2011) (addressing a § 2254 habeas
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petition). Where the federal habeas court has already denied the habeas petition on
the merits, an attack based on habeas counsel’s omission of a claim in an original
habeas petition ordinarily does not go to the integrity of the proceedings, but in
effect asks for a second chance to have the merits determined favorably. Id. at
1372. We explained in Franqui that it is a serious problem for a court to have
worked on a habeas petition and decided its merit, only to have a petitioner later
come in and say, “Wait, there’s more.” Id. at 1373.
In this case, the district court correctly determined that Peters’s Rule 60(b)
motion was a successive § 2255 motion.1 Peters previously alleged in his original
§ 2255 motion that his trial counsel was ineffective for failing to move to suppress
evidence based on his compelled statements during the administrative and criminal
proceedings. The district court considered, and rejected, those arguments. Peters’s
Rule 60(b) motion again challenged the use of his compelled statements. As for
Peters’s claim that his Rule 60(b) motion was alerting the district court about a
defect in the proceedings that properly could have been addressed in a Rule 60(b)
motion, we are unpersuaded. As the record reveals, his Rule 60(b) motion raised a
1
Generally, a COA is required to appeal the denial of a Rule 60(b) motion in a § 2255
proceeding. Jackson v. Crosby, 437 F.3d 1290, 1294-95 (11th Cir. 2006). However, a COA is
not needed for this Court to review the district court’s dismissal of a successive § 2255 for lack
of subject matter jurisdiction because that kind of dismissal does not constitute a final order in a
habeas corpus proceeding for purposes of 28 U.S.C. § 2253(c); rather, it constitutes a final
decision pursuant to 28 U.S.C. § 1291. Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir.
2004). Here, a COA is not needed for us to review the district court’s order because the district
court determined that Peters’s motion was an impermissible successive § 2255 motion and
dismissed it for lack of subject matter jurisdiction. See id.
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routine, merits-based argument concerning the evidence that was presented at his
trial and in his § 2255 proceedings -- not the type of claim that could be addressed
in a Rule 60(b) motion. Thus, because Peters’s Rule 60(b) motion attacked a
previous resolution of a claim on the merits, the district court correctly construed
the Rule 60(b) motion as a successive § 2255 motion. See Gonzalez, 545 U.S. at
531-32.
Moreover, before Peters could file a second or successive § 2255 motion in
the district court, he needed to obtain an order from this Court authorizing the
district court to consider the motion. 28 U.S.C. § 2255(h). Peters does not claim
that he received authorization. Therefore, the district court correctly dismissed
Peters’s motion as successive, because without authorization, the district court
lacked jurisdiction to consider Peters’s second or successive motion. See Farris,
333 F.3d at 1216. And while Peters argues in his reply brief that his motion
attacked a new judgment under Magwood v. Patterson, 561 U.S. 320 (2010), we
generally do not consider issues raised for the first time in a reply brief. House,
684 F.3d at 1210. Accordingly, we affirm the district court’s dismissal of Peters’s
Rule 60(b) motion.
AFFIRMED.
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