United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE
matter comes before the Court pursuant to Daisy Thomas's
pro se Motion for Relief from Judgment (Doc. # 503), filed on
June 26, 2019. The Government responded in opposition on July
17, 2019. (Doc. # 507). For the reasons that follow, the
Motion is denied.
November 2010, the grand jury indicted Thomas for conspiracy
to obstruct commerce by robbery, in violation of 18 U.S.C.
§ 1951 (Count One); obstructing commerce by robbery, in
violation of 18 U.S.C. § 1951 (Count Two); and use of a
firearm in connection with a crime of violence, in violation
of 18 U.S.C. § 924(c) (Count Three). (Doc. # 23). On
January 5, 2011, the grand jury returned a second superseding
indictment, which included the same three charges against
Thomas. (Doc. # 61). At trial, Thomas was found guilty on all
three counts. (Doc. # 294). In March 2012, the Court
sentenced Thomas to 204 months imprisonment - 60 months as to
Count One, 120 months as to Count Two, and 84 months as to
Count Three, to run consecutively, followed by 60 months'
supervised release. (Doc. ## 332; 333).
appealed, but the Eleventh Circuit Court of Appeals affirmed
Thomas's conviction on June 10, 2013. (Doc. ## 334; 416;
418). The record does not reflect that Thomas sought
certiorari with the United States Supreme Court.
of 2014, Thomas filed the first in a series of motions
challenging her sentence in a separate civil case. Pursuant
to 28 U.S.C. § 2255, Thomas alleged that counsel was
ineffective by (1) failing to hire a biometric expert to
review and testify regarding video surveillance; (2) failing
to investigate and interview witnesses who may have helped
establish a defense; and (3) disregarding information about
potential defenses. Thomas v. United States,
8:14-cv-1399-T-33TBM, (Doc. # 1). The Court appropriately
denied this motion. Id. at (Doc. # 9).
2016, Thomas filed two more motions in the civil case. The
first was a motion for leave to amend her Section 2255 motion
based on the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). Id. at
(Doc. # 16). This motion was denied. Id. at (Doc. #
18). Thomas then filed a motion for reconsideration of that
denial. Id. at (Doc. # 21). This Court, again,
denied the motion. Id. Thomas appealed that denial.
Id. at (Doc. # 24). Subsequently, the Eleventh
Circuit affirmed, writing that Thomas's motion was an
“unauthorized successive [Section] 2255 motion”
and the district court lacked jurisdiction to consider it.
Id. at (Doc. # 31).
then filed this Motion in her criminal case, seeking relief
from the judgment pursuant to Federal Rule of Civil Procedure
60(b)(6). (Doc. # 503). The Government responded in
opposition on July 17, 2019. (Doc. # 507). This Motion is now
ripe for review.
pursuant to Rule 60(b)(6), Thomas asks for relief from her
conviction under the Supreme Court decision, United
States v. Davis, 139 S.Ct. 2319 (2019), in which the
Court held that the residual clause of the definition for
violent felony was unconstitutionally vague under due process
and separation of powers principles. (Doc. # 503). Rule
60(b)(6) permits setting aside a judgment for “any
other reason justifying relief from the operation of a
judgment.” Fed.R.Civ.P. 60(b)(6). “It is well
established, however, that relief under this clause is an
extraordinary remedy which may be invoked only upon a showing
of exceptional circumstances.” Ackermann v. United
States, 340 U.S. 193, 202 (1950).
order to bring a successful motion pursuant to Rule 60(b)(6),
the party seeking relief must prove that “absent such
relief, an ‘extreme' and ‘unexpected'
hardship will result.” United States v. Swift &
Co., 286 U.S. 106, 119 (1932). Also, the motion
“must be made within a reasonable time.”
Fed.R.Civ.P. 60(c)(1). “Reasonableness” is case
specific, and courts consider two factors: “the reasons
for the delay and the potential for prejudice to the
non-movant.” Harduvel v. General Dynamics
Corp., 801 F.Supp. 597, 603 (M.D. Fla. 1992). Here, the
Court does not find, and Thomas does not provide, any
evidence of extraordinary circumstances or a reason for any
delay to sustain a Rule 60(b)(6) motion.
importantly, Thomas's Motion is due to be denied because
this “motion for relief from judgment” under Rule
60 is actually an unauthorized successive Section 2255 motion
filed without the requisite permission from the Eleventh
Circuit. (Doc. # 507 at 3); see Castro v. United
States, 540 U.S. 375, 381 (2003) (“Federal courts
sometimes will ignore the legal label that a pro se litigant
attaches to a motion and recharacterize the motion in order
to place it within a different legal category.”).
Congress intended for Section 2255 to “serve as the
primary method of collateral attack on a federally imposed
sentence.” United States v. Jordan, 915 F.2d
622, 629 (11th Cir. 1990). And “Rule 60(b) cannot be
used to circumvent restraints on successive habeas
petitions.” Felker v. Turpin, 101 F.3d 657,
previously filed a Section 2255 motion attacking her
conviction. Thomas v. United States,
8:14-cv-1399-T-33TBM, (Doc. # 1). Thus, this Motion is a
successive Section 2255 motion. (Doc. # 507). “To file
a second or successive [Section] 2255 motion, the movant must
first file an application with the appropriate court of
appeals for an order authorizing the district court to
consider it.” Farris v. United States, 333
F.3d 1211, 1216 (11th Cir. 2003). Without certification from
the Eleventh Circuit Court of Appeals, this Court ...