           Case: 16-11793   Date Filed: 04/21/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-11793
                         Non-Argument Calendar
                       ________________________

      D.C. Docket Nos. 3:13-cv-00148-TCB; 3:10-cr-00008-TCB-RGV-1



ANTHONY ANTONIO COX,

                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (April 21, 2017)

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

PER CURIAM:
               Case: 16-11793     Date Filed: 04/21/2017   Page: 2 of 4


      Anthony Antonio Cox, a federal prisoner, appeals pro se the denial of his

motion for relief. Fed. R. Civ. P. 60(b). Cox sought relief from an earlier judgment

that denied his motion to vacate his conviction based on his alleged mental

incompetency during trial, see 28 U.S.C. § 2255. The district court treated Cox’s

Rule 60(b) motion as a § 2255 motion to vacate and denied it as successive. See id.

§ 2244. We affirm the ruling that treated Cox’s motion as an impermissible second

or successive motion to vacate, but we vacate and remand for the district court to

dismiss Cox’s motion for lack of jurisdiction.

      Cox moved, without success, to vacate his conviction based on his alleged

mental incompetency. Id. § 2255. Cox based his motion on a pretrial order that he

was “competent to stand trial on the condition that [he] continue to take his

medication without interruption.” The government responded that Cox had been

competent, and Cox replied that the government was barred from “relitigating” the

pretrial order. A magistrate judge recommended denying Cox’s motion on the

ground that the trial transcript proved that he had been competent during trial. Cox

objected for the reasons stated in his reply. The district court overruled Cox’s

objection and denied Cox’s motion. The district court and this Court denied Cox’s

requests for a certificate of appealability.

      Cox later moved for relief from the judgment that denied his motion to

vacate. Cox argued that the district court failed, as required by Clisby v. Jones, 960


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F.2d 925 (11th Cir. 1992), to address his objection to relitigating the validity of the

pretrial order. See Fed. R. Civ. P. 60(b). The district court denied the motion.

      The district court did not abuse its discretion by ruling that Cox’s motion

was a second or successive motion. Federal Rule of Civil Procedure 60(b) permits

relief from a judgment, among other grounds, if the movant can identify a “reason

that justifies relief.” Id. But a prisoner cannot use a motion under Rule 60(b) to

circumvent the prohibition on filing successive postconviction challenges to a

conviction or sentence, 28 U.S.C. § 2244. For that reason, we treat a motion under

Rule 60(b) that attacks the denial of a motion to vacate on its merits as a successive

motion. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (addressing a petition

for a writ of habeas corpus); see also Gilbert v. United States, 640 F.3d 1293, 1323

(11th Cir. 2011) (en banc) (applying Gonzalez to a motion to vacate). Because

Cox’s motion seeks to relitigate an issue—his competency—that the district court

had rejected previously on the merits, the district court correctly treated Cox’s

filing as a second or successive motion.

      The district court lacked jurisdiction to entertain Cox’s second motion to

vacate. Cox already had filed one motion to vacate and failed to obtain permission

from this Court to file a successive motion. See 28 U.S.C. §§ 2244(b)(3)(A),

2255(h). “Without authorization, the district court lack[ed] jurisdiction to consider

[Cox’s] second or successive petition.” Farris v. United States, 333 F.3d 1211,


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1216 (11th Cir. 2003). Because the district court lacked jurisdiction, it erred by

denying instead of dismissing Cox’s motion.

      We AFFIRM the ruling that treated Cox’s motion as an impermissible

second or successive motion to vacate, but we VACATE the order denying the

motion and REMAND for the district court to dismiss Cox’s motion for lack of

jurisdiction.




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