Opinion
CRIMINAL ACTION 1:14-cr-0312-ELR-JKL-1 CIVIL ACTION 1:22-cv-2949-ELR-JKL
10-27-2022
NIGEL MARC GORDON, BOP Reg. No. 66299-019, Movant, v. UNITED STATES OF AMERICA, Respondent.
FINAL REPORT AND RECOMMENDATION
John K. Larkins, United States Magistrate Judge
Movant Nigel Marc Gordon, a federal prisoner currently confined at the Federal Correction Institution in Jesup, Georgia, has filed a pro se 28 U.S.C. § 2255 motion to vacate challenging his 2016 guilty plea conviction and sentence in this Court for possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). (Doc. 162 at 1; Doc. 102 at 1.) Petitioner has also filed a Fed.R.Civ.P. 60(b) motion for relief from his conviction. (Doc. 163). The matter is before the Court for initial screening of the § 2255 motion and Rule 60(b) motion pursuant to Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Movant filed a prior § 2255 motion attacking the same judgment on July 24, 2018. (Doc. 118.) This Court denied the prior motion on the merits. (Doc. 144 at 3-4.) Movant appealed, and the Eleventh Circuit denied him a certificate of appealability and denied reconsideration. (Docs. 156, 157.)
A federal prisoner who wishes to file a second or successive motion to vacate, set aside, or correct sentence is required to move the Court of Appeals for an order authorizing the district court to consider such a motion. See 28 U.S.C. § 2255(h) (cross-referencing 28 U.S.C. § 2244). Absent such authorization, a district court lacks jurisdiction to consider a second or successive § 2255 motion. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).
The Supreme Court has held that Rule 60(b) motions are to be considered impermissible successive collateral attacks if the prisoner either (1) raises a new ground for substantive relief, or (2) attacks the habeas court's previous resolution of a claim on the merits. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (involving a 28 U.S.C. § 2254 habeas corpus petition); see also Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (recognizing that Gonzalez's standard applies in the § 2255 context). Accordingly, when a pro se federal prisoner brings a motion under Rule 60(b), a district court may appropriately construe it as a § 2255 motion, and, if applicable, treat it as an unauthorized second or successive motion. See Williams v. Chatman, 510 F.3d 1290, 1293-95 (11th Cir. 2007) (involving a § 2254 petition).
In his instant § 2255 motion, Movant acknowledges that he has filed a prior § 2255 motion. (Doc. 162 at 2.) Movant proceeds to argue that § 922(g) is now unconstitutional in light of the Supreme Court's recent decision in New York State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111 (2022), such that he is actually innocent of the offenses of conviction. (Id. at 4-5.) Movant also argues that he received ineffective assistance of counsel. (Id. at 6.) Movant seeks to proceed based on Bruen as a purported new rule of constitutional law. (Id. at 10.) Movant also has filed a Fed.R.Civ.P. 60(b) motion seeking vacatur of his conviction based on Rehaif v. United States, 139 S.Ct. 2191 (2019), and Seabrooks v. United States, 32 F.4th 1375 (11th Cir. 2022), as new rules of constitutional law. (Doc. 163 at 1-2.)
Here, the instant § 2255 motion is second or successive. Moreover, Movant's Rule 60(b) motion is properly construed as a second or successive § 2255 motion because it raises new grounds for habeas relief and attacks his conviction on the merits. See Gonzalez, 545 U.S. at 531-32; Gilbert, 640 F.3d at 1323. Movant has not alleged, let alone shown, that he has received authorization from the Court of Appeals to file a second or successive § 2255 motion. (See generally Doc. 162, Doc. 163.) Consequently, this Court lacks subject matter jurisdiction to consider either of Movant's present filings. Holt, 417 F.3d at 1175. While Movant asserts that his filings are based on new rules of constitutional law, such arguments are properly presented to the Court of Appeals. See 28 U.S.C. § 2255(h)(2).
Accordingly, IT IS RECOMMENDED that the § 2255 motion [162] be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A).
IT IS FURTHER RECOMMENDED that Movant's Rule 60(b) motion [163] be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A).
Ordinarily, federal prisoners must obtain a certificate of appealability (“COA”) to appeal the denial of a § 2255 motion and/or the denial of a Fed.R.Civ.P. 60(b) motion for relief from a judgment in a § 2255 proceeding. 28 U.S.C. § 2253(c)(1)(B); Jackson v. Crosby, 437 F.3d 1290, 1294 (11th Cir. 2005). However, the Eleventh Circuit has held that dismissal of a successive habeas petition for lack of subject matter jurisdiction does not constitute a “final order in a habeas corpus proceeding” for purposes of § 2253(c). Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). Accordingly, no COA ruling is necessary.
The Clerk of Court is DIRECTED to terminate the referral to the undersigned United States Magistrate Judge.
IT IS SO RECOMMENDED.