United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD, UNITED STATES DISTRICT JUDGE
case is before the Court on Defendant Melvin Nance's
“Motion Pursuant to Rule 60(b)(6) or construe as Motion
for Coram Nobis” (sic). (Crim. Doc. 142;
Motion). The United States has responded (Crim.
Doc. 145; Response), and Nance has replied (Crim. Doc. 148;
Reply). For the reasons below, the Motion is due to be
was convicted of one count of being a felon in possession of
a firearm, and the Court sentenced him to a term of
imprisonment of 151 months after determining he qualified to
be sentenced as an armed career criminal under 18 U.S.C.
§ 924(e). (See Crim. Doc. 91;
Judgment). The United States Court of Appeals for the
Eleventh Circuit affirmed Nance's conviction and sentence
on direct appeal. United States v. Nance, 426
Fed.Appx. 801, 803 (11th Cir.), cert. denied, 565
U.S. 912 (2011). Nance then filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence,
which the Court denied in a substantive 34-page order.
(See Civ. Doc. 19; Order Denying § 2255
Motion). Nance sought to appeal that order, but on November
18, 2013, the Eleventh Circuit denied his request for a
certificate of appealability (COA). (Civ. Doc. 23; USCA Order
than three and a half years after the Eleventh Circuit denied
his request for a COA, Nance filed the instant Motion, in
which he seeks relief under Rule 60(b)(6), Federal Rules of
Civil Procedure (“Rule(s)”), or alternatively, a
writ of error coram nobis. Nance argues that the Court
incorrectly sentenced him under the Armed Career Criminal Act
(ACCA) because the Court erred in classifying his prior
convictions for the sale or delivery of cocaine as serious
drug offenses. Nance relies on Mathis v. United
States, 136 S.Ct. 2243 (2016), to argue that the Court
misapplied the modified categorical approach in determining
that his prior drug convictions were ACCA predicates. Nance
also argues that trial counsel was ineffective because he
failed to object to the ACCA enhancement.
United States counters that Nance's Motion is not a true
Rule 60 motion because he substantively attacks the legality
of his sentence. Response at 2-3. Thus, the United States
contends “that the defendant's motion is, in
substance, a second and successive (and untimely) motion to
vacate his sentence, which he did not previously receive
authorization from the court of appeals to file.”
Id. at 2 (citing 28 U.S.C. § 2255(h)).
Additionally, the United States contends that Nance's
challenge to his ACCA sentence lacks merit because his prior
drug convictions remain serious drug offenses. Id.
to Rule 60(b)(6), “[o]n motion and just terms, the
court may relieve a party or its legal representative from a
final judgment, order, or proceeding for … any other
reason that justifies relief.” Fed.R.Civ.P. 60(b)(6).
“Relief from ‘judgment under Rule 60(b)(6) is an
extraordinary remedy.'” Arthur v. Thomas,
739 F.3d 611, 628 (11th Cir. 2014) (quoting Booker v.
Singletary, 90 F.3d 440, 442 (11th Cir. 1996)).
“Consequently, relief under Rule 60(b)(6) requires
showing ‘“extraordinary circumstances”
justifying the reopening of a final judgment.'”
Id. (quoting Gonzalez v. Crosby, 545 U.S.
524, 535 (2005)). A change in decisional law, for example, is
not enough to create the “extraordinary
circumstances” to invoke Rule 60(b)(6).
Gonzalez, 545 U.S. at 535-38; Howell v.
Sec'y, Fla. Dep't of Corr., 730 F.3d 1257,
1260-61 (11th Cir. 2013).
Rule 60(b) to present new claims for relief from a
court's judgment of conviction - “even claims
couched in the language of a true Rule 60(b) motion -
circumvents AEDPA's requirement that a new claim be
dismissed unless it relies on either a new rule of
constitutional law or newly discovered facts.”
Gonzalez, 545 U.S. at 531 (citing 28 U.S.C. §
2244(b)(2)); see also 28 U.S.C. § 2255(h).
Thus, when a Rule 60(b) motion asserts a new claim of
constitutional error, or the existence of newly discovered
evidence, it “is in substance a successive habeas
petition and should be treated accordingly.”
Gonzalez, 545 U.S. at 531.
to 28 U.S.C. § 2255, “[a] second or successive
motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals….” 28
U.S.C. § 2255(h). Indeed, the statute directs that
“[b]efore a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A).
“Without authorization, the district court lacks
jurisdiction to consider a second or successive
petition.” United States v. Holt, 417 F.3d
1172, 1175 (11th Cir. 2005) (citing Farris v. United
States, 333 F.3d 1211, 1216 (11th Cir. 2003)).
Nance's Motion - to the extent it purportedly relies on
Rule 60(b)(6) - seeks relief from his sentence in light of
the Supreme Court's decision in Mathis, 136
S.Ct. 2243. Nance again attacks the validity of the ACCA
enhancement, arguing that the Court erred in classifying his
prior drug convictions as serious drug offenses. Thus, the
Motion is in substance a second or successive motion under 28
U.S.C. § 2255. However, Nance has not obtained
permission from the Eleventh Circuit Court of Appeals to file
a second or successive § 2255 motion. Because the
Eleventh Circuit has not authorized Nance to file a second or
successive motion to vacate, the Court lacks jurisdiction
over the instant Motion. Holt, 417 F.3d at 1175. As
such, the Motion is due to be dismissed for lack of
Petition for Writ of Error Coram Nobis
Nance seeks relief under a writ of error coram nobis.
“The writ of error coram nobis is an extraordinary
writ, limited to cases in which ‘no statutory remedy is
available or adequate.'” United States v.
Brown, 117 F.3d 471, 474-75 (11th Cir. 1997) (quoting
Lowery v. United States, 956 F.2d 227, 228-29 (11th
Cir.1992)). “A petition for a writ of coram nobis
provides a way to collaterally attack a criminal conviction
for a person ... who is no longer ‘in custody' and
therefore cannot seek habeas relief under 28 U.S.C. §
2255 or § 2241.” Chaidez v. United
States, 568 U.S. 342, 345 n.1 (2013) (citation omitted).
Thus, “[c]oram nobis relief is unavailable to a person
… who is still in custody.” United States v.
Garcia, 181 F.3d 1274, 1274 (11th Cir. 1999) (citing
Brown, 117 F.3d at 475). According to the Federal
Bureau of Prisons, Nance is currently incarcerated at a
federal correctional institution, and will remain so until
June 25, 2021. Because Nance is still in custody, coram
nobis relief is not available to him. Garcia, 181
F.3d at 1274.
Nance is pro se, the Court liberally construes his pleadings.
Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). That means “look[ing] beyond the
label of a pro se inmate's motion to determine if it is
cognizable under a different statutory framework.”
United States v. Stossel, 348 F.3d 1320, 1322 n.2
(11th Cir. 2003). The Court has considered whether the Motion
could be construed as a motion under 28 U.S.C. § 2255 or
a habeas corpus petition under § 2241, but neither is
availing. For the reasons discussed in Section I, construing
the Motion as one under § 2255 is futile because the
Eleventh Circuit has not authorized the filing of a second or
successive motion to vacate. See also Garcia, 181
F.3d at 1275 (finding that it would be futile to construe a
coram nobis petition as a second or successive § 2255
motion). Likewise, construing the Motion as a habeas corpus
petition under § 2241 is equally futile. A federal
prisoner may not invoke § 2255(e)'s savings clause
and file a § 2241 petition to argue that an intervening
change in case law invalidates his ACCA sentence. See
McCarthan v. Director, Goodwill Indus. - Suncoast, Inc.,
851 F.3d 1076, 1085-90 (11th Cir. 2017) (en banc). Rather, a
federal prisoner may file a § 2241 petition to challenge
the execution of his sentence, such as the deprivation of
good-time credits, or if the sentencing court has been
dissolved. Id. at 1092- 93 (internal citations
omitted). But neither circumstance applies here. Nance does
not challenge the execution of his sentence, nor is the
sentencing court unavailable. Like the petitioner in
McCarthan, Nance seeks to substantively attack his
ACCA sentence in light of an intervening change in the case
“[a] petition for a writ of habeas corpus may only be
brought in the court having jurisdiction over the petitioner
or his place of incarceration.” Hajduk v. United
States, 764 F.2d 795, 796 (11th Cir. 1985). “As
[Nance] is incarcerated at the Federal Correctional Institute
in [Yazoo City, Mississippi], he is outside the jurisdiction
of the [Middle District of Florida] for habeas corpus
purposes.” Id. ...