United States District Court, N.D. Florida, Tallahassee Division
ORDER DENYING DEFENDANT'S RULE 60(B) MOTION TO
REOPEN SECTION 2255 PROCEEDINGS
WILLIAM STAFFORD, SENIOR UNITED STATES DISTRICT JUDGE
the court is the magistrate judge's report and
recommendation (doc. 1121) docketed September 26, 2017. The
magistrate judge recommends that Keith Lapell Biggins's
Rule 60(b)(6) motion to reopen his original § 2255
proceedings be denied as Biggins “has shown no legal
basis for reopening” those proceedings. Biggins has
filed objections to the report and recommendation. Attached
to his objections are exhibits that, according to Biggins,
demonstrate his “actual innocence” of the crimes
contends that the magistrate judge failed to consider the
Supreme Court's 2013 decision in McQuiggin v.
Perkins, 133 S.Ct. 1924 (2013). In that case, the
Supreme Court held that evidence of actual innocence can
overcome the one-year limitations period for filing a federal
habeas corpus action. The Supreme Court cautioned, however,
that “tenable actual-innocence gateway pleas are rare:
‘[A] petitioner does not meet the threshold requirement
unless he persuades the district court that, in light of the
new evidence, no juror, acting reasonably, would have voted
to find him guilty beyond a reasonable doubt.' ”
Id. at 1928 (quoting Schlup v. Delo, 513
U.S. 298, 329 (1995)).
2002, Biggins's § 2255 motion, which included an
actual innocence argument (albeit in a footnote), was
summarily dismissed as barred by the relevant statute of
limitations. The claims raised by Biggins's in that
original § 2255 motion were not considered on
the merits. Biggins suggests that, under McQuiggin,
he should now-more than fifteen years after his original
§ 2255 motion was dismissed-be permitted to reopen his
§ 2255 proceedings to have his claim of actual innocence
considered on the merits. This court disagrees.
Rule of Civil Procedure 60(b) entitles the moving party to
relief from judgment on several grounds, including the
catch-all category “any other reason justifying relief
from the operation of the judgment.” Fed.R.Civ.P.
60(b)(6). Biggins seeks relief under Rule 60(b)(6). A motion
under Rule 60(b)(6) must be brought “within a
reasonable time, ” Fed.R.Civ.P. 60(c)(1); and requires
a showing of “extraordinary circumstances, ”
Gonzalez, 545 U.S. at 535. The Supreme Court has
explained that “[s]uch circumstances will rarely occur
in the habeas context.” Id.
considered Biggins's motion, his objections, and the
affidavits and other exhibits attached to Biggins's
objections, this judge-the same judge who sat through
Biggins's three-week trial-has determined that
Biggins's motion to reopen must be denied. Not only has
Biggins failed to file his Rule 60(b) motion “within a
reasonable time” as required by Rule 60(c)(1); he has
also failed to demonstrate the requisite extraordinary
circumstances to obtain relief under Rule 60(b)(6). To be
sure, Biggins has produced evidence that a few of the many
trial witnesses claim that they gave false testimony and/or
later recanted their testimony against Biggins. Having
reviewed Biggins's newly produced evidence along with the
evidence he submitted in 2001 with his original § 2255
motion, the court finds that Biggins has failed to make an
adequate showing of factual innocence under
McQuiggin. Biggins is not entitled to relief under
it is ORDERED:
1. The magistrate judge's report and recommendation (doc.
1121) is ADOPTED and incorporated into this order.
2. Biggins's Rule 60(b) motion (doc. 1119) to reopen his
§ 2255 proceedings is DENIED.
3. A certificate of appealability is DENIED.
 This court assumes, without deciding,
that Biggins's Rule 60(b) motion is not subject to
dismissal as a successive habeas petition. In Gonzalez v.
Crosby, 545 U.S. 524 (2005), the Supreme Court explained
that when a Rule 60(b) motion asserts grounds entitling a
petitioner to habeas relief or asserts that a previous ruling
regarding those grounds was in error, he is making a habeas
claim subject to the restrictions imposed on successive
petitions by the AEDPA. Id. at 532 n.4. “He is
not doing so when he merely asserts that a previous ruling
which precluded a merits determination was in error-for
example, a denial for such reasons as failure to exhaust,
procedural default, or statute-of-limitations bar.”
Id; see also Spitznas v. Boone, 464 F.3d 1213, 1216
(10th Cir. 2006) (explaining that a Rule 60(b) motion
“is a second or successive petition if it in substance
or effect asserts or reasserts a federal basis for relief
from the petitioner's underlying conviction.
Conversely, it is a ...