United States District Court, S.D. Georgia, Statesboro Division
RANDAL HALL, CHIEF JUDGE
is presently confined at United States Penitentiary, Florence
High, in Fremont County, Colorado. In 2013, this Court
sentenced Petitioner to life imprisonment after he pled
guilty to conspiracy to kidnap. (Docs. 124, 148, 150.)
Petitioner appealed the conviction. (Doc. 171.) Following his
counsel's brief pursuant to Anders v.
California, 386 U.S. 738 (1967), the Eleventh Circuit
Court of Appeals affirmed Petitioner's conviction and
sentence because it found no arguable issues of merit. (Doc.
2015, Petitioner filed a petition to vacate his conviction
and sentence under 28 U.S.C. § 2255 (the "Original
Petition"). (Doc. 199.) This Court denied the Original
Petition. (Doc. 217.) Petitioner appealed the denial, but the
Eleventh Circuit denied both his appeal and his motion for
reconsideration of the appeal. (Docs. 223, 232, 240.)
Petitioner also filed a petition for writ of certiorari,
which the Supreme Court denied on May 3, 2016. (Doc. 242.)
December 5, 2017, Petitioner, proceeding pro se,
filed the instant petition, asking that the indictment and
judgment in his underlying criminal case be declared void for
lack of jurisdiction, violations of due process, and fraud on
the Court. (Doc. 280.) He simultaneously filed a motion to
proceed in forma pauperis. (Doc. 281.) On January
24, 2018, he also filed a "Motion for Petition to
Supplement.'' (Doc. 285.) In his petition and
supplement, Petitioner argues that his name never appeared on
court documents, that the trial and grand jury procedures
were improper, that he did not consent to the plea agreement,
that the laws giving the court jurisdiction were invalid, and
that the judge was biased. (Docs. 280, 285.)
the instant petition (doc. 280) is nominally styled as a
petition under Federal Rules of Civil Procedure 60(b)(3) and
(4) and 28 U.S.C. § 1651, the majority of
Petitioner's assertions fall within the scope of 28
U.S.C. § 2255 because they collaterally attack the
validity of his federal sentence. Petitioner seeks here to
relitigate claims that this Court previously rejected on the
merits, including those regarding the plea agreement (doc.
280, at 53), as well as claims that Petitioner could have
raised in his Original Petition. Indeed, the legal and
factual basis of Petitioner's instant claims were all
sufficiently established and known - or knowable - to
Petitioner when he filed his Original Petition. Since he
offers no explanation for not raising any new claims in the
Original Petition, the instant petition is a successive
petition. See Boyd v. United States, 754 F.3d 1298,
1301 (11th Cir. 2014) ("[T]he bar on second or
successive motions applies when, for example, a petitioner
could have raised his or her claim for relief in an earlier
filed motion, but without a legitimate excuse, failed to do
successive § 2255 petition may only be filed if the
appropriate court of appeals certifies that the motion
contains newly discovered evidence or a new rule of
constitutional law. Felix v. United States, 709 F.
App' x 543, 547 (11th Cir. 2017) ("Only a single
§ 2255 is allowed, and successive attempts at relief are
limited. A second or successive § 2255 motion cannot be
considered by the district court unless it has been certified
by this Court as containing either: (1) newly discovered
evidence that, viewed in light of the evidence as a whole,
establishes by clear and convincing evidence that no
reasonable factfinder would find the defendant guilty or (2)
a new retroactive rule of constitutional law that was not
previously available to the defendant." (citing 28
U.S.C. § 2255(h); and Boyd, 754 F.3d at 1301)).
Because Petitioner failed to obtain certification from the
Eleventh Circuit for this successive petition (doc. 280),
this Court has no jurisdiction to consider his instant
petition. See, e.g., In re
Bradford, 830 F.3d 1273, 1277 (11th Cir. 2016)
("[W]hen a petitioner fails to seek permission from the
court of appeals to file a second or successive petition, the
district court lacks jurisdiction to consider it.").
Petitioner's allegations primarily fall within 28 U.S.C.
§ 2255, Petitioner asserts that this petition is a
motion under Federal Rules of Civil Procedure 60(b)(3) or
(Doc. 280, at 1, 4, 17.) Yet Rule 60(b)(3), offering relief
from judgment because of fraud on the Court, is unavailable
to Petitioner because the instant petition and supplement
were filed more than four years after the judgment was
entered, well beyond the one-year deadline imposed upon
60(b)(3) motions. Fed.R.Civ.P. 60(c)(1) ("A motion under
Rule 60(b)[(1), (2), and (3) ] must be made ... no more than
a year after the entry of the judgment . . ."). Rule
60(b)(4) has no such time limit, however, and permits relief
from judgment on grounds that "the judgment is
void." Fed.R.Civ.P. 60(b)(4). Under Rule 60(b)(4),
"[a] judgment can be set aside for voidness where the
court lacked jurisdiction or where the movant was denied due
process." Stansell v. Revolutionary Armed Forces of
Colombia, 771 F.3d 713, 736 (11th Cir. 2014).
Petitioner asserts that 18 U.S.C. § 3231, which gives
district courts original jurisdiction over offenses against
the laws of the United States, was incorrectly passed and
that the statute is therefore invalid. (Doc. 280, at 8-9.)
Without that statute, he reasons, this Court had no
jurisdiction over his case, making the Court's subsequent
judgment void. Id. This argument has no merit,
however, because the Eleventh Circuit has repeatedly upheld
18 U.S.C. § 3231. See, e.g., United States
v. DiFalco, 837 F.3d 1207, 1218 (11th Cir. 2016)
(stating that 18 U.S.C. § 3231 "plainly
vest[s]" district courts with jurisdiction over offenses
against the laws of the United States). Because the statute
is valid, the Court did have jurisdiction over the underlying
criminal proceedings and the judgment thereon is not void.
also claims that the grand jury proceeded improperly,
violating his due process. (Doc. 280, at 34-36.) This claim
is a collateral attack on the judgment and therefore may be
dismissed as an uncertified successive § 2255 petition.
United States v. Holt, 417 F.3d 1172, 1175 (11th
Cir. 2005) ("Because [the petitioner] is collaterally
attacking his sentence as violating the United States
Constitution, the proper avenue of relief is §
2255." (citations omitted)). To the extent that this
claim can be assessed under Rule 60(b)(4), however,
Petitioner failed to request disclosure of grand jury
materials to make his case. United States v.
Roemmele, 646 Fed.Appx. 819, 823 (11th Cir. 2016)
(holding that defendant forfeited his argument for disclosure
of grand jury materials because he did not make that argument
in the district court or in his opening brief on appeal
(citing Reider v. Philip Morris USA, Inc., 793 F.3d
1254, 1258 (11th Cir. 2015); and United States v.
Noriega, 676 F.3d 1252, 1260 n.2 (11th Cir. 2012))).
Moreover, Petitioner has failed to argue that any attendant
violation was not harmless error. Bank of Nova Scotia v.
United States, 487 U.S. 250, 255-56 (1988) (concluding
that dismissal of an indictment is appropriate only if the
violation was prejudicial to the defendant).
makes no attempt to justify his petition under the remaining
enumerated Rule 60 grounds for relief, and he fails to
satisfy the requirements of Rule 60(b)(6), which
"provides a catch-all" way to grant relief for
other reasons. Aldana v. Del Monte Fresh Produce N.A.,
Inc., 741 F.3d 1349, 1355 (11th Cir. 2014). To prevail
under Rule 60(b)(6), a movant must "demonstrate that the
circumstances are sufficiently extraordinary to warrant
relief." Id. (internal quotations and citations
omitted). Again, Petitioner has given no reason that he could
not have presented his claims in his direct appeal or
Original Petition, and he gives no justification for not
sending his petition to the Eleventh Circuit for
certification. Accordingly, he has not demonstrated that his
circumstances are sufficiently extraordinary to warrant
relief under Rule 60(b)(6).
as an alternative to classifying the petition as a 28 U.S.C.
§ 2255 motion or a Rule 60(b) motion, Petitioner asserts
that the All Writs Act, 28 U.S.C. § 1651, requires the
court to hear his petition. (Doc. 280, at 4, 11.) Under the
All Writs Act, "all courts established by act of
Congress may issue all writs necessary or appropriate in aid
of their respective jurisdictions." 28 U.S.C. §
1651(a). However, "[w]here a statute specifically
addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling.,,
United States v. Blake, 868 F.3d 960, 971 (11th Cir.
2017) (internal quotations and citations omitted). Since
either Rule 60(b) or a properly-certified motion under §
2255 offer avenues to review Petitioner's conviction, the
All Writs Act does not apply here.
upon the foregoing and upon due consideration, IT IS
HEREBY ORDERED that Petitioner's instant
petition under 28 U.S.C. § 2255 (Doc. 280) is
DISMISSED for lack of jurisdiction.
Petitioner's supplemental claims under § 2255 are
likewise DISMISSED for lack of jurisdiction.
(Doc. 285.) To the extent that Petitioner's
jurisdictional and due process claims may be characterized as
Rule 60(b)(4) claims which this Court may consider, they are
DENIED. Because there are no issues to
consider going forward, IT IS ALSO ORDERED
that Petitioner's motion to proceed in forma
pauperis (Doc. 281) is DENIED AS MOOT.
The Clerk is directed to TERMINATE all
motions and CLOSE this case.