United States District Court, M.D. Florida, Ocala Division
JAMES M. ZIMMERMAN, Petitioner,
SECRETARY, DEPARTMENT OF CORRECTIONS and FLORIDA ATTORNEY GENERAL, Respondents.
WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE
the Court is Petitionerâs Motion to Vacate (Dkt. 22) the
judgment entered July 18, 2019 (Dkt. 17). The Courtâs order
of that same date denied the Amended Petition filed pursuant
to 28 U.S.C. Â§ 2254 (Dkt. 5). Dkt. 16. Relying on Rule
60(b)(3) of the Federal Rules of Civil Procedure, he claims
that this Court impermissibly relied on false information
regarding the DNA evidence used to convict him in state
court. Dkt. 22 at 12.
60(b)(3) allows a party to seek relief from a final judgment,
and request reopening of the case, on the basis of fraud,
misrepresentation, or misconduct by an opposing party. Rule
60(b) may not be used, however, to reopen a final habeas
judgment unless the motion challenges “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 proceeding.” Gonzalez v.
Crosby, 545 U.S. 532, 532 (2005). Fraud on the
federal habeas court constitutes that type of defect.
Id. at 532 n.5.
contends that the state committed fraud when at trial the
prosecutor withheld exculpatory DNA evidence taken by a nurse
and then relied instead on other false DNA evidence to
convict. Dkt. 22 at 5-7. The other false DNA evidence was
allegedly provided by a county forensic DNA technician and an
FDLE forensic witness at trial. The alleged fraud here, as in
Gonzalez, was perpetrated on a state court, not this
Court in these habeas proceedings. As such, Petitioner has not
satisfied the fraud exception under Rule 60(b)(3). In any
event, in the habeas ruling, this Court found that in
addition to the DNA evidence, the victim made a positive
identification and Petitioner made inculpatory statements in
a taped phone call. Dkt. 16 at 2, 17, 24, 31.
did raise in his amended petition the inadequacy of the DNA
as it pertained to his allegedly ineffective counsel. Dkt. 16
at 9 (“issue of DNA . . . consumes much of
Petitioner’s supporting memorandum”). Rule 60(b)
is not, however, a tool to relitigate claims in a habeas that
have already been presented or to raise grounds that could
have been raised in the petition. See Thomas v.
Florida, 706 Fed.App’x 653, 654–55 (11th
Cir. 2017) (affirming district court for construing
petitioner’s 60(b)(3) motion as impermissible
successive § 2254 petition and for dismissing for lack
of jurisdiction) (citing Franqui v. Florida, 638
F.3d 1368, 1371–72 (11th Cir. 2011) and other
cases). After review, the Court does not construe
this motion as an attempt to file a successive motion.
the motion on its face as one filed under Rule 60(b)(3), Mr.
Zimmerman has failed to show the fraud exception applies. The
allegations do not seek to remedy a fraud agents of the
government perpetrated on this federal court. Accordingly, it
is therefore ORDERED AND ADJUDGED that
Petitioner’s Motion to Vacate (Dkt. 22) is denied.
 A clerical error in the judgment will
also permit reopening. See also Gonzalez v. Sec’y
for Dep’t of Corr., 366 F.3d 1253, 1277–78
(11th Cir. 2004) (en banc), aff’d on other grounds sub
nom., Gonzalez v. Crosby, 545 U.S. 524
 In Gonzalez, the petitioner Mobley
alleged that perjured testimony was given at his sentencing
after retrial, which he claims resulted in the jury returning
a death sentence. Gonzalez v. Sec’y, 366 F.3d
at 1282-84. According to Mobley, the testimony destroyed his
chances of mitigation because the former prosecutor should
have truthfully testified he advised the victim’s
family that life without parole was not an option.
Id. at 1282–84. The Eleventh Circuit held that
the alleged fraud was committed, if at all, on the state
court and not the federal court in a habeas proceeding,
thereby precluding relief from the habeas judgment.
Id. at 1284â85.
 See also Williams v. United
States, No. 8:02-cv-1605-24EAJ, 2008 WL 11410074, at
*3–4 (M.D. Fla. Dec. 8, 2008) (dismissing Rule 60(b)(3)