Anthony Cox v. USA

Filing

Opinion issued by court as to Appellant Anthony Antonio Cox. Decision: Affirmed in part, Vacated in part, and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-11793

Date Filed: 04/21/2017

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11793
Non-Argument Calendar
________________________
D.C. Docket Nos. 3:13-cv-00148-TCB; 3:10-cr-00008-TCB-RGV-1

ANTHONY ANTONIO COX,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 21, 2017)
Before WILLIAM PRYOR, JULIE CARNES and JILL PRYOR, Circuit Judges.
PER CURIAM:

Case: 16-11793

Date Filed: 04/21/2017

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Anthony Antonio Cox, a federal prisoner, appeals pro se the denial of his
motion for relief. Fed. R. Civ. P. 60(b). Cox sought relief from an earlier judgment
that denied his motion to vacate his conviction based on his alleged mental
incompetency during trial, see 28 U.S.C. § 2255. The district court treated Cox’s
Rule 60(b) motion as a § 2255 motion to vacate and denied it as successive. See id.
§ 2244. We affirm the ruling that treated Cox’s motion as an impermissible second
or successive motion to vacate, but we vacate and remand for the district court to
dismiss Cox’s motion for lack of jurisdiction.
Cox moved, without success, to vacate his conviction based on his alleged
mental incompetency. Id. § 2255. Cox based his motion on a pretrial order that he
was “competent to stand trial on the condition that [he] continue to take his
medication without interruption.” The government responded that Cox had been
competent, and Cox replied that the government was barred from “relitigating” the
pretrial order. A magistrate judge recommended denying Cox’s motion on the
ground that the trial transcript proved that he had been competent during trial. Cox
objected for the reasons stated in his reply. The district court overruled Cox’s
objection and denied Cox’s motion. The district court and this Court denied Cox’s
requests for a certificate of appealability.
Cox later moved for relief from the judgment that denied his motion to
vacate. Cox argued that the district court failed, as required by Clisby v. Jones, 960
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Case: 16-11793

Date Filed: 04/21/2017

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F.2d 925 (11th Cir. 1992), to address his objection to relitigating the validity of the
pretrial order. See Fed. R. Civ. P. 60(b). The district court denied the motion.
The district court did not abuse its discretion by ruling that Cox’s motion
was a second or successive motion. Federal Rule of Civil Procedure 60(b) permits
relief from a judgment, among other grounds, if the movant can identify a “reason
that justifies relief.” Id. But a prisoner cannot use a motion under Rule 60(b) to
circumvent the prohibition on filing successive postconviction challenges to a
conviction or sentence, 28 U.S.C. § 2244. For that reason, we treat a motion under
Rule 60(b) that attacks the denial of a motion to vacate on its merits as a successive
motion. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (addressing a petition
for a writ of habeas corpus); see also Gilbert v. United States, 640 F.3d 1293, 1323
(11th Cir. 2011) (en banc) (applying Gonzalez to a motion to vacate). Because
Cox’s motion seeks to relitigate an issue—his competency—that the district court
had rejected previously on the merits, the district court correctly treated Cox’s
filing as a second or successive motion.
The district court lacked jurisdiction to entertain Cox’s second motion to
vacate. Cox already had filed one motion to vacate and failed to obtain permission
from this Court to file a successive motion. See 28 U.S.C. §§ 2244(b)(3)(A),
2255(h). “Without authorization, the district court lack[ed] jurisdiction to consider
[Cox’s] second or successive petition.” Farris v. United States, 333 F.3d 1211,
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1216 (11th Cir. 2003). Because the district court lacked jurisdiction, it erred by
denying instead of dismissing Cox’s motion.
We AFFIRM the ruling that treated Cox’s motion as an impermissible
second or successive motion to vacate, but we VACATE the order denying the
motion and REMAND for the district court to dismiss Cox’s motion for lack of
jurisdiction.

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