           Case: 16-11351   Date Filed: 05/17/2017   Page: 1 of 7


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11351
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:05-cr-60078-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

ANTOINE FERNAND SAINT SURIN,
a.k.a. Antoine St. Surin,
a.k.a. Commandante,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                             (May 17, 2017)

Before TJOFLAT, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Antoine Fernand Saint-Surin appeals from the district court’s order denying

his pro se Fed. R. Civ. P. Rule 60(b) motion for reconsideration, in which he

sought reconsideration of both the court’s order denying his motion for a reduction

in sentence, 18 U.S.C. § 3582(c)(2), and its order denying his motion to vacate or

void sentence, 28 U.S.C. § 2255. Saint-Surin maintains that the court, in denying

both motions, wrongly relied on an incorrect finding made earlier in his criminal

proceedings that he falsely told the court that his former attorney forged his

signature on a legal services agreement. The district court did not err in denying

Saint-Surin’s Rule 60(b) motion to the extent it attacked the denial of his § 3582

motion. As § 3582 is a criminal statute, Saint-Surin cannot use Rule 60(b), a rule

of civil procedure, to challenge the district court’s decision to deny him a reduction

in sentence. Further, the district court lacked jurisdiction to issue a ruling on the

merits as to Saint-Surin’s 60(b) challenge of the denial of his § 2255 motion to

vacate. Accordingly, we affirm in part and vacate and remand in part.

      Federal courts are “obligated to inquire into subject-matter jurisdiction sua

sponte whenever it may be lacking.” Cadet v. Bulger, 377 F.3d 1173, 1179 (11th

Cir. 2004). We review de novo questions concerning jurisdiction. Brooks v.

Ashcroft, 283 F.3d 1268, 1275 (11th Cir. 2002).

      Where appropriate, we review the denial of a Rule 60(b) motion for

reconsideration for abuse of discretion. Jackson v. Crosby, 437 F.3d 1290, 1295


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(11th Cir. 2006). A district court may abuse its discretion by failing to apply the

proper legal standard or by failing to follow proper procedures. United States v.

Jules, 595 F.3d 1239, 1241–42 (11th Cir. 2010).

      Rule 60(b) motions may relieve a party from a judgment due to: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which

could not have been discovered earlier with due diligence; (3) fraud,

misrepresentation, or other misconduct of an adverse party; (4) a void judgment;

(5) a judgment that has been satisfied, released, discharged, reversed, or vacated;

or (6) any other reason justifying relief from the operation of the judgment. Fed.

R. Civ. P. 60(b).

      In United States v. Fair, we concluded that a defendant could not seek

reconsideration of an order denying his § 3582 motion for a reduction in sentence

via a Rule 60(b) motion. 326 F.3d 1317, 1318 (11th Cir. 2003). We reasoned that,

while there were considerable deficiencies in Fair’s arguments on the merits, it was

not necessary to discuss them “because Rule 60(b) is a civil motion that is not

available to an individual challenging his sentence under § 3582(c)(2).” Id.

Noting that while some post-conviction relief, such as habeas corpus proceedings,

are civil in nature, we specified that § 3582 is criminal in nature and therefore

covered by rules applying to criminal cases, not civil cases. Id. We concluded that

a § 3582 motion is merely a continuation of a criminal case, and that Fair could not


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use Fed. R. Civ. P. 60(b) to attack any alleged deficiencies in the district court’s

underlying order denying his § 3582 motion. Id.

      Generally, a Certificate of Appealability (“COA”) is required for the appeal

of any denial of a Rule 60(b) motion for relief from a judgment in a habeas

proceeding. Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir.

2004) (en banc), aff’d on other grounds sub nom., Gonzalez v. Crosby, 545 U.S.

524 (2005). However, where a district court lacks subject matter jurisdiction over

a Rule 60(b) motion, it also lacks jurisdiction to grant a COA. See Boone v. Sec'y,

Dep't of Corr., 377 F.3d 1315, 1317 (11th Cir. 2004).

      A prisoner may file a Rule 60(b) motion on a “limited basis” to allege a

defect in the integrity of the habeas proceedings with respect to the denial of his §

2255 motion. Williams v. Chatman, 510 F.3d 1290, 1293–94. These include an

error based upon failure to exhaust, a procedural default, or a statute of limitations

bar. Id. But, a prisoner may not file a Rule 60(b) motion to challenge the

substance of the federal court’s resolution of the § 2255 claim on the merits. Id.

      In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court explained

that the Federal Rules of Civil Procedure apply to habeas proceedings to the extent

that they are “not inconsistent with applicable federal statutory provisions.” Id. at

529 (quoting 28 U.S.C. § 2254 Rule 11) (internal marks omitted). Additionally,

the Supreme Court held that the Antiterrorism and Effective Death Penalty Act


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(“AEDPA”) does not explicitly limit the operation of Rule 60(b). Id. Nonetheless,

the AEDPA does foreclose application of that rule where it would be inconsistent

with the restrictions imposed on successive petitions by the AEDPA. Id. at 529–

30.

      The Supreme Court held in Gonzalez that a Rule 60(b) motion is 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. at

532. However, 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. A “claim,” as described by the Court in Gonzalez, is “an asserted federal basis

for relief.” Id. at 530. The Court described the term “on the merits” to mean a

determination whether grounds exist entitling a petitioner to relief. Id. at 532 n.2.

When a Rule 60(b) motion qualifies as a second or successive habeas petition as

defined in Gonzalez, it must comply with the requirements for such petitions under

the AEDPA. See 28 U.S.C. § 2244.

      Here, the district court did not err in denying Saint-Surin’s motion for

reconsideration, to the extent he sought to challenge the court’s denial of his

motion to reduce sentence under § 3582(c)(2). As in Fair, we need not address the

merits of Saint-Surin’s claim because relief under Fed. R. Civ. P. 60(b) is not


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available to an individual challenging his sentencing under § 3582(c)(2). See Fair,

326 F.3d at 1318. Because § 3582 is a criminal statute, Saint-Surin cannot use

Rule 60(b) of the Federal Rules of Civil Procedure to challenge the district court’s

decision to deny him a reduction in sentence. Thus, the district court correctly

denied his motion for reconsideration in that respect.

      Second, the district court lacked jurisdiction to rule on Saint-Surin’s motion

for reconsideration as to the denial of his § 2255 motion to vacate. Saint-Surin’s

motion for reconsideration, to the extent it challenged the denial of § 2255 motion,

raised a merits-related claim that was, in substance, part of a successive § 2255

motion as defined in Gonzalez. See Gonzalez, 545 U.S. at 532. In the motion for

reconsideration, Saint-Surin summarized the argument he made in his § 2255

motion that no evidence existed that he signed the legal services agreement with

his attorney DeFabio, the document was a forgery, and DeFabio worked under a

conflict of interest. The district court should have treated as successive the portion

of Saint-Surin’s Rule 60(b) motion that challenged the court’s previous resolution

of the conflict of interest and forgery claim on the merits. Because Saint-Surin was

attempting to relitigate a claim previously raised and decided in his § 2255 motion

to vacate challenging the validity of his conviction, Saint-Surin was required to

move in our Court for an order authorizing the district court to consider a

successive § 2255 motion. See 28 U.S.C. § 2244(b). Because the court did not


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have such authorization, it lacked subject matter jurisdiction to consider the

motion, and therefore could not issue a COA with respect to his claim. See

Williams, 510 F.3d at 1294-95. Thus, we vacate and remand to the district court

with instructions to dismiss the Rule 60(b) motion, to the extent it challenged the

denial of Saint-Surin’s § 2255 motion to vacate, for lack of jurisdiction. See id.

      Based on the foregoing, we affirm, in part, and vacate and remand, in part.

      AFFIRMED, in part, and VACATED and REMANDED, in part.




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