            Case: 16-17748   Date Filed: 01/12/2018   Page: 1 of 5


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-17748
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:16-cv-62321-RNS



FRANCIS W. SUGHRUE,

                                                      Petitioner - Appellant,

                                   versus

STATE OF FLORIDA,
STATE OF FLORIDA, ATTORNEY GENERAL,

                                                      Respondents - Appellees.

                       ________________________

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

                             (January 12, 2018)

Before JULIE CARNES, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
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       Francis Sughrue, a Florida inmate proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus as

impermissibly second or successive. After careful review, we affirm. 1

                                               I.

       Following his 1990 state criminal convictions, Sughrue filed a § 2254

petition to challenge them. The district court denied his petition on the merits and

we affirmed. See Sughrue v. Butler, 190 F.3d 542 (11th Cir. 1999) (unpublished

table decision). Sughrue subsequently filed the instant § 2254 petition in the

district court. The district court referred the petition to a magistrate judge, who

issued a report finding that Sughrue’s petition was successive, noting that his

previous petition challenged the legality of the same state court judgment and was

denied on the merits. The magistrate judge therefore recommended that Sughrue’s

petition be dismissed for lack of jurisdiction.

       Sughrue objected to the report and recommendation. He argued that several

of his claims relied on newly discovered evidence of fraud upon the state court,

making his petition proper under 28 U.S.C. § 2244(b)(2)(B)—which excepts from

dismissal certain claims in a second or successive habeas petition based on newly

discovered evidence—and Federal Rule of Civil Procedure 60(b)—which lists

fraud as grounds for relief from a final judgment. The district court overruled

       1
         Sughrue’s motion for appointment of counsel for substitute briefing and oral argument
therefore is DENIED AS MOOT.
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Sughrue’s objections, adopted the magistrate judge’s report and recommendation,

and dismissed the petition. Sughrue appealed.2

                                                II.

       Subject to two exceptions, “[a] claim presented in a second or successive

habeas corpus application under section 2254 . . . shall be dismissed.” 28 U.S.C.

§ 2244(b)(1). This dismissal requirement is inapplicable if the petitioner either

“shows that the claim relies on a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable,”

or demonstrates that “the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence” and that those facts,

“if proven and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the [petitioner] guilty of the underlying

offense. Id. § 2244(b)(2). Even if one of these exceptions applies, however, a

petitioner must first “move in the appropriate court of appeals for an order

authorizing the district court to consider the application” before the district court

may consider it. Id. § 2244(b)(3)(A).




       2
       Sughrue is not required to have a certificate of appealability to litigate his appeal. See
Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).
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      We review de novo a district court’s conclusion that a § 2254 petition is

second or successive such that the petitioner must first seek authorization in this

Court to file it. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).

                                          III.

      We agree with the district court that Sughrue’s § 2254 petition was second

or successive such that he was required to seek authorization from this Court

before filing it in the district court, which he did not do. As the district court

concluded, both Sughrue’s initial and instant § 2254 petitions challenged the same

1990 state court judgment of conviction. His instant petition is therefore

successive. See Magwood v. Patterson, 561 U.S. 320, 338-39 (2010) (explaining

that a § 2254 petition addressing a state court judgment that already has been

challenged via an initial § 2254 petition is successive). Sughrue contends that

several of his claims are based on newly discovered evidence and thus qualify

under one of the two exceptions to § 2244(b)’s dismissal requirement, but even if

this is true, the statute requires him to seek authorization from this Court before

filing such a petition in the district court, and Sughrue failed to do so.

      Sughrue maintains in the alternative that his petition could properly be

considered a motion for relief from judgment under Federal Rule of Civil

Procedure 60(b). Even assuming for purposes of this opinion that the claims in his

petition theoretically could be brought via a Rule 60(b) motion, the district court’s


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dismissal was correct. A Rule 60(b) motion based on fraud “must be made . . . no

more than a year after the entry of the judgment or order or the date of the

proceeding.” Fed. R. Civ. P. 60(c)(1). Because the Federal Rules of Civil

Procedure apply only to federal district court proceedings, see Fed. R. Civ. P. 1,

the only judgment or order Sughrue could attack under Rule 60(b) is the district

court’s denial of his initial § 2254 proceeding, which was entered nearly ten years

ago. Thus, Sughrue’s instant petition, even if properly construed as a Rule 60(b)

motion, was untimely under Rule 60(c)(1).

         For these reasons, the district court correctly dismissed Sughrue’s petition.3

         AFFIRMED.




         3
             We therefore need not address any of the merits arguments Sughrue advances in his
brief.
                                                  5
