Taylor v. USA

Filing 6

ORDER: Petitioner's motion for reconsideration 4 under Federal Rule of Civil Procedure 60(b)(6) is DISMISSED. Petitioner's motion to appoint counsel 3 is DENIED as moot. This case remains closed. Signed by Judge James S. Moody, Jr on 4/13/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRIAN E. TAYLOR,
Petitioner,
v.

Case No: 8:14-cv-1952-T-30TBM

UNITED STATES OF AMERICA,
Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner Brian E. Taylor’s motion for
reconsideration under Federal Rule of Civil Procedure 60(b)(6) of the order dismissing his
motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 as untimely
(Doc. 4) and Petitioner’s motion to appoint counsel (Doc. 3). On August 11, 2014,
Petitioner filed a motion pursuant to § 2255 raising four grounds for relief. (Doc. 1). The
Court dismissed the motion as time-barred. (Doc. 2). On July 23, 2015, Petitioner filed
the present Rule 60(b) motion, arguing that he is entitled to reconsideration of the order
dismissing his § 2255 petition in light of the Supreme Court’s recent decisions in Johnson
v. United States, 135 S. Ct. 2551 (2015), and McFadden v. United States, 135 S. Ct. 2298
(2015). The Court construes Petitioner’s Rule 60(b)(6) motion as a successive § 2255
petition and concludes that it should be dismissed.

Federal Rule of Civil Procedure 60 provides only a limited basis upon which a
petitioner may seek relief in a habeas case. Williams v. Chatman, 510 F.3d 1290, 1293
(11th Cir. 2007). “[A] Rule 60(b) motion is to be treated as a successive habeas petition if
it: (1) ‘seeks to add a new ground of relief;’ or (2) ‘attacks the federal court’s previous
resolution of a claim on the merits.’” Id. 1293-94 (quoting Gonzalez v. Crosby, 545 U.S.
524, 532 (2005)). 1 But where, “a Rule 60(b) motion ‘attacks, not the substance of the
federal court’s resolution of a claim on the merits, but some defect in the integrity of the
federal habeas proceedings,’ the motion is not a successive habeas petition.” Id. (quoting
Gonzalez, 545 U.S. at 532).
Here, Petitioner does not attack “some defect in the integrity” of his prior federal
habeas proceedings. Rather, he argues additional bases for relief pursuant to Johnson and
McFadden. Accordingly, Petitioner’s Rule 60(b)(6) motion is more properly construed as
a successive § 2255 petition. Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), as
amended by the Antiterrorism and Effective Death Penalty Act of 1996, federal prisoners
who want to file a second or successive motion to vacate, set aside, or correct a sentence
must move in the appropriate court of appeals for an order authorizing the district court to
consider the second or successive motion. See 28 U.S.C. § 2244(b)(3)(A). A three-judge
panel of the court of appeals, § 2244(b)(3)(B), may authorize the filing of a second or
successive motion only if it determines that the motion contains claims which rely on
either: (1) “newly discovered evidence that, if proven and viewed in the light of the
1

Gonzalez addressed the relationship between a Rule 60(b) motion and a motion filed pursuant to 28 U.S.C.
§ 2254, but the Eleventh Circuit has subsequently held that Gonzalez also applies to motions filed pursuant to § 2255.
See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011), cert. denied, 132 S. Ct. 1001 (2012).

2

evidence as a whole, would be sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty of the offense; or (2) a new
rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” 28 U.S.C. § 2255(h).
Because Petitioner has not sought authorization to file a second or successive habeas
petition from the Eleventh Circuit, this Court lacks jurisdiction to consider his motion and
it should be dismissed. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005)
(“Without authorization [from the appropriate court of appeals, a] district court lacks
jurisdiction to consider a second or successive petition.”). If Petitioner wishes to seek relief
under § 2255, he should file a motion with the Eleventh Circuit requesting authorization to
file a second or successive habeas petition. 2
For Petitioner’s benefit, however, the Court notes that Petitioner would not be
entitled to relief under Johnson. In Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), defining
a violent felony as a crime “involv[ing] conduct that presents a serious potential risk of
physical injury to another,” is unconstitutionally vague. See Johnson, 135 S. Ct. at 2563.
Petitioner’s sentence under 18 U.S.C. § 922(g) was subject to enhancement under the
ACCA; however, his predicate offenses do not fall within the ambit of the residual clause.
Specifically, the indictment charged that Petitioner had the following prior
convictions in Florida state court: (1) possession of cannabis (Case No. 90-7069),
2

The Court cannot determine whether Petitioner is entitled to a certificate of appealability (“COA”) because
“[w]here a district court lacks subject matter jurisdiction over a Rule 60(b) motion, . . . it also lacks jurisdiction to
grant a COA.” See Williams, 510 F.3d at 1294.

3

(2) robbery (Case No. 94-15400), (3) robbery (Case No. 94-15118), (4) aggravated assault
(Case No. 94-15119), (5) robbery (Case No. 94-15475), (6) robbery (Case No. 94-15150),
(7) robbery (Case No. 94-15151), and (8) robbery (Case No. 94-15149). 3 Petitioner
therefore has at least six prior convictions for robbery.
Under Florida law, a robbery is “the taking of money or other property which may
be the subject of larceny from the person or custody of another, with intent to either
permanently or temporarily deprive the person or the owner of the money or other property,
when in the course of the taking there is the use of force, violence, assault, or putting in
fear.” Fla. Stat. § 812.13(1). The Eleventh Circuit has ruled that a Florida robbery
conviction categorically qualifies as a predicate offense under the elements clause of the
ACCA. See United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011); see also 18
U.S.C. § 924(e)(2)(B)(i); United States v. Johnson, No. 14-10390, 2015 WL 7740578, at
*6 (11th Cir. Dec. 2, 2015) (concluding that a conviction for armed robbery qualified as an
ACCA predicate offense under the elements clause post-Johnson). Johnson’s holding
invalidated only the residual clause of ACCA, § 924(e)(2)(B)(ii), defining a violent felony
as “involv[ing] conduct that presents a serious potential risk of physical injury to another”;
the elements clause, § 924(e)(2)(B)(i), remains in effect. Because Petitioner’s ACCA
enhancement is supported by predicate convictions that do not fall within the residual
clause, he would not be entitled to relief under Johnson.

3

Among other offenses, Petitioner’s presentence investigation report (“PSR”) also reflected these offenses.
(PSR ¶¶ 37-45).

4

Similarly, Petitioner would not be entitled to relief under McFadden. In McFadden,
the Supreme Court held that a conviction for distribution of a controlled substance analogue
requires the government to prove that the defendant knew the substance was a controlled
substance under federal law. 135 S. Ct. at 2302. Petitioner was convicted of possession
of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(e), and
possession of a stolen firearm, in violation of 18 U.S.C. § 922(j). McFadden has nothing
to do with Petitioner’s ACCA enhancement and would not apply in Petitioner’s case since
he was not convicted of possession of a controlled substance analogue.
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1. Petitioner’s motion for reconsideration under Federal Rule of Civil Procedure
60(b)(6) (Doc. 4) is DISMISSED.
2. Petitioner’s motion to appoint counsel (Doc. 3) is DENIED as moot.
3. This case remains closed.
DONE and ORDERED in Tampa, Florida, this 13th day of April, 2016.

Copies furnished to:
Counsel/Parties of Record

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