                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 08-14517                 DECEMBER 7, 2011
                        Non-Argument Calendar               JOHN LEY
                                                             CLERK
                      ________________________

                 D. C. Docket Nos. 05-23260-CV-ASG,
                          96-00443-CR-ASG

ELADIO ALBERTO MUNOZ,



                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.


                      ________________________

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

                           (December 7, 2011)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Eladio Alberto Munoz, a federal prisoner, appeals following the denial of his

habeas petition, filed pursuant to 28 U.S.C. § 2255, in which the district court

granted him a certificate of appealability (“COA”) on his claims of ineffective

assistance of counsel and violation of United States v. Booker, 543 U.S. 220

(2005). Soon thereafter, Munoz filed, with the district court, several motions under

Fed. R. Civ. P. 60(b) for reconsideration of the denial of his § 2255 petition,

alleging conflicts of interest of both his trial and habeas counsel. The district court

denied his Rule 60(b) motions, concluding that it lacked subject matter jurisdiction

over the motions because the appeal of the underlying judgment was pending with

this Court. Munoz appealed the denial of his Rule 60(b) motions, which we

consolidated with the appeal on the denial of his § 2255 claims and granted him a

COA on the issue of whether the district court erred in concluding that it lacked

subject matter jurisdiction to consider Munoz’s motions for reconsideration.

      Essentially we have pending before us two distinct appeals. Nonetheless,

because we conclude that it would be premature for us to rule on the merits of the

claims raised in the COA on the denial of Munoz’s § 2255 petition until after the

district court has had the opportunity to rule on the merits of Munoz’s Rule 60(b)

motions, we will first address the COA on the motions for reconsideration.

      We review the district court’s determination that it lacked subject matter


                                           2
jurisdiction de novo. Mahone v. Ray, 326 F.3d 1176, 1178 (11th Cir. 2003).

Generally, “the filing of a notice of appeal deprives the district court of jurisdiction

over all issues involved in the appeal.” Id. at 1179. Nonetheless, we have held that

“district courts retain jurisdiction after the filing of an appeal to entertain and deny

a Rule 60(b) motion.” Id. at 1180 (emphasis added). However, the district court

may not grant a Rule 60(b) motion while the matter is pending on appeal. Id.

(emphasis added).

       Accordingly, we explained in Mahone that the proper course for a district

court to follow when “presented with a Rule 60(b) motion after a notice of appeal

[of the underlying judgment] has been filed [is to] consider the motion and assess

its merits.” Id. The district court “may then deny the motion or indicate its belief

that the arguments raised are meritorious.” Id. If the district court finds the

arguments meritorious, “the movant may then petition the court of appeals to

remand the matter so as to confer jurisdiction on the district court to grant the

motion. Id.1


       1
          Rule 62.1 was adopted in 2009, after the district court ruled on the motions for
reconsideration in this case, to codify the practice that most courts had been following. Similar
to our decision in Mahone, the rule provides that a district court may “(1) defer considering the
motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of
appeals remands for that purpose or that the motion raises a substantial issue.” Fed. R. Civ. P.
62.1(a). If the district court indicates either that it would grant the motion or that the motion
raises substantial issues, the movant must notify the court of appeals, which may remand the
entire case for that purpose. Id. 62.1(b) and (c).

                                                 3
      In this case, the government concedes, and the record confirms, that the

district court erred by finding that it did not have subject matter jurisdiction over

Munoz’s Rule 60(b) motions. Consequently, we vacate the denial of Munoz’s

Rule 60(b) motions and remand proceedings to the district court for the purpose of

considering Munoz’s Rule 60(b) motions and either (1) deny them on their merits,

or (2) indicate that the issues raised are meritorious. If the district court indicates

that the issues raised are meritorious or that the motion raises a substantial issue,

Munoz “must promptly notify the circuit clerk under Fed. R. App. P. 12.1,” to

petition for a remand to the district court.

      We do not and need not reach, at this time, the merits of the ineffective

assistance of counsel and Booker claims raised in the original COA, which claims

will remain pending in this Court upon remand of the Rule 60(b) motions. Given

that the district court may consider a Rule 60(b) motion according to the

procedures outlined in Mahone, and now Rule 62.1, while at the same time the

appeal of the underlying judgment may remain pending before this Court, we see

no reason to remand the entire case at this time. In the event that the district court

denies Munoz’s Rule 60(b) motions on the merits, Munoz can appeal that denial

and we can again incorporate that decision with the pending appeal and resolve all

issues at that time. On the other hand, if the district court indicates that it would


                                               4
grant the Rule 60(b) motion, we would then be free to remand the entire case for

the district court’s consideration of the issues in the first instance.2

       VACATED IN PART, and REMANDED IN PART.




       2
          The advisory committee notes to Rule 62.1 also identifies an additional option for
handling of a Rule 60(b) motion. In the event that the district court finds that a motion presents
complex issues which would potentially either be mooted or presented in a different context by a
decision on the issues raised in the appeal, the district court may prefer to indicate that the
motion raises “a substantial issue.” It may then explain the reasons why it would prefer to rule
on the motion only if the court of appeals indicates that the district court’s decision would be
useful before it renders a decision on the pending appeal. See Fed. R. Civ. P. 62.1 advisory
committee’s note.

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