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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13919
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:86-cr-00146-KMW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


NATHANIEL JAMES,

                                                         Defendant-Appellant.

                       ________________________

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

                              (April 24, 2019)

Before JILL PRYOR, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
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         Nathaniel James, a federal prisoner proceeding pro se, appeals the district

court’s denial of his pro se motion for attorney’s fees. We affirm.

                                      I. BACKGROUND

         In 1986, James was indicted with nine counts of receiving a firearm after

having been previously convicted of a felony, in violation of 18 U.S.C. §

922(h)(1). 1 The predicate felony for his firearm offenses stemmed from a 1985

conviction for carrying a concealed firearm, in violation of Fla. Stat. § 790.01,

which James pled nolo contendere to and the court withheld adjudication. 2

Following his 1985 plea, he purchased nine firearms, which gave rise to the 1986

indictment. James was convicted on July 23, 1986, of all counts after a non-jury

trial and was placed on three years of probation. In March 1990, after a probation

revocation hearing, the district court found James guilty of violating his probation

and sentenced him to 30 years of imprisonment. The district court also adjudged

James to be a career criminal and imposed his sentence pursuant to 18 U.S.C. §

4205(b)(l). We affirmed the district court’s judgment in 1991. United States v.

James, 937 F.2d 619 (11th Cir. 1991) (table).

         In 1992, James filed his first motion to vacate, pursuant to 28 U.S.C. § 2255.

The district court denied his motion, and we affirmed in 1994. James v. United

1
    Section 922(h)(1) is now codified as 18 U.S.C. § 922(g)(1).
2
  It appears that James pled nolo contendere to this violation, as a later district court order
references his “predicate nolo contendere plea”; this fact appears to not be disputed.

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States, 24 F.3d 253 (11th Cir. 1994) (table). James filed a second § 2255 motion in

1996, which the district court dismissed; we affirmed in 1999. James v. United

States, 180 F.3d 269 (11th Cir. 1999) (table).

      In 2008, James filed a pro se motion for relief pursuant to Federal Rule of

Civil Procedure 60(b)(4), (6), seeking to set aside his felon-in-possession

conviction. He argued that the district court erred in denying his 1992 § 2255

motion, because, under United States v. Willis, 106 F.3d 966 (11th Cir. 1997), a

plea of nolo contendere in the state of Florida was not considered a conviction. He

argued that he therefore was unlawfully convicted of possession of a firearm by a

convicted felon, as his 1985 nolo contendere plea could not serve as a predicate for

his federal offense. The district court denied his motion and found that Willis was

inapplicable to James’s case, as the amendment to the felon-in-possession statute

incorporating Willis became effective after the conduct for which James was

indicted.

      In May 2016, James filed a third § 2255 motion, again arguing that he was

unlawfully convicted of the firearm offenses. He argued that his convictions were

void in light of United States v. Clarke, 822 F.3d 1213 (11th Cir. 2016), where we

held that an “adjudication withheld” was no longer considered a conviction for the

purposes of applying the “federal criminal statutes.” He argued that, as a result, his

conviction under § 922(h)(1) must be vacated.


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       A magistrate judge issued a Report and Recommendation (“R&R”),

recommending that the district court grant James’s motion. The R&R noted that

James had a valid “actual innocence” claim because the actions that he committed

in 1985 that led to his nine convictions in 1986 had been determined by Clarke to

not constitute a crime. It noted that James’s motion should therefore be construed

as a writ of error coram nobis. The government conceded that James’s convictions

were no longer valid and did not file an objection to the report.

       In 2017, the district court granted James’s motion to vacate his conviction

for receiving firearms as a convicted felon, construing the motion as a request for a

writ of error coram nobis. It noted that, based on the R&R and an independent

review of the record, James’s motion should be granted and his firearm convictions

vacated, due to our decision in Clarke rendering his convictions invalid.

       Subsequently, James filed a motion for attorney’s fees, pursuant to 28

U.S.C. § 2412. He argued that he was owed attorney’s fees pursuant to the Hyde

Amendment. 3 He argued that the government’s “position [was] vexatious,

frivolous and taken in bad faith.”

       The magistrate judge denied James’s motion for attorney’s fees. He noted

that James had “failed to meet his ‘daunting’ burden and [could not] demonstrate


3
 Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A,
historical and statutory notes).

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that the government’s position was vexatious, frivolous, or in bad faith.” The

judge stated that James’s argument ignored precedent from this court that existed

before the Clarke decision, “that definitively established that a withheld-

adjudication could be considered a predicate offense in relation to a federal firearm

conviction.” The judge stated that, in the two decades after James’s conviction,

there existed binding precedent that directly foreclosed the arguments he made in

his motion.4 The judge noted that James conceded that the Florida Supreme Court

did not determine, prior to 2016, whether a violation of a Florida criminal statute

could amount to a predicate felony under § 922(g) if adjudication was ultimately

withheld by the state court. He noted that his concession undercut James’s entire

argument.

       The judge stated that, if it were to find that the government’s position during

the prosecution of the underlying firearm offense was vexatious or frivolous,

federal prosecutors would then be required to anticipate every change in the law

that might occur in the years following any defendant’s conviction. The judge

noted that this was an impossible burden on the government and that the Hyde

Amendment did “not require such prescience” by prosecutors. The judge noted

that James needed to show more than the fact that he ultimately prevailed on his §

4
 Citing United States v. Grinkiewicz, 873 F.2d 253, 254 (11th Cir. 1989); United States v.
Chubbuck, 252 F.3d 1300, 1303 (11th Cir. 2001); United States v. Santiago, 601 F.3d 1241,
1243 (11th Cir. 2010); United States v. Hernandez, 522 F. App’x 908 (11th Cir. 2013).

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2255 motion in order to be awarded attorney’s fees. The judge found that James

had “not in any way shown” that the government’s position was vexatious,

frivolous, or in bad faith, when it prosecuted his offenses in 1986.

      James filed a motion for reconsideration of the denial of his motion for

attorney’s fees. The district court denied James’s motion for reconsideration. It

noted that it denied the motion “[f]or the reasons set forth in [the magistrate

judge’s] thorough order.”

                                 II. DISCUSSION

      On appeal, James appears to argue that the district court did not resolve his

Hyde Amendment claim and that, at the time of his indictment, Florida law and the

law of this court made clear that a nolo contendere plea where adjudication was

withheld was not a conviction. He argues that, therefore, the district court’s

findings of fact in denying his motion for attorney’s fees were clearly erroneous.

      A grant or denial of attorney’s fees under the Hyde Amendment “is

reviewed for an abuse of discretion.” United States v. Adkinson, 247 F.3d 1289,

1290 (11th Cir. 2001). “An abuse of discretion occurs if the judge fails to apply

the proper legal standard or to follow proper procedures in making the

determination, or bases an award [or a denial] upon findings of fact that are clearly

erroneous.” United States v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999)




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(alteration in original) (quoting Am. Civil Liberties Union of Ga. v. Barnes, 168

F.3d 423, 427 (11th Cir. 1999)).

      Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed. Tannenbaum v. United

States, 148 F.3d 1262, 1263 (11th Cir. 1998).

      The Hyde Amendment provides, in relevant part, that:

      During fiscal year 1998 and in any fiscal year thereafter, the court, in
      any criminal case (other than a case in which the defendant is
      represented by assigned counsel paid for by the public) pending on or
      after the date of the enactment of this Act [Nov. 26, 1997], may award
      to a prevailing party, other than the United States, a reasonable
      attorney’s fee and other litigation expenses, where the court finds that
      the position of the United States was vexatious, frivolous, or in bad
      faith, unless the court finds that special circumstances make such an
      award unjust. Such awards shall be granted pursuant to the procedures
      and limitations (but not the burden of proof) provided for an award
      under section 2412 of title 28, United States Code.

See Pub. L. No. 105-119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18

U.S.C. § 3006A, historical and statutory notes). “‘Vexatious’ means ‘without

reasonable or probable cause or excuse.’” Gilbert, 198 F.3d at 1298-99 (quoting

Black’s Law Dictionary 1559 (7th ed. 1999)). “A ‘frivolous action’ is one that is

‘[g]roundless . . . with little prospect of success; often brought to embarrass or

annoy the defendant.’” Id. at 1299 (alterations in original) (quoting Black’s Law

Dictionary 668 (6th ed. 1990)). “‘[B]ad faith’ ‘is not simply bad judgment or

negligence, but rather it implies the conscious doing of a wrong because of


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dishonest purpose or moral obliquity; . . . it contemplates a state of mind

affirmatively operating with furtive design or ill will.’” Id. (second alternation in

original) (quoting Black’s Law Dictionary 139 (6th ed. 1990)).

      In United States v. Orellanes, we held that an “adjudication withheld”

following a guilty plea qualified as a conviction for purposes of rendering the

defendant a “convicted felon,” and thus, prohibited him from being able to receive

firearms. 809 F.2d 1526, 1528 (11th Cir. 1987), abrogated by Clarke, 822 F.3d

1213. In Willis, we held that a plea of nolo contendere without an adjudication of

guilt in the state of Florida is not considered to be a conviction. Willis, 106 F.3d at

968-69. The issue was one of first impression before us in 1997. Id. at 968. Prior

to Willis, the Florida Supreme Court found that the term “conviction” meant a

“determination of guilty by verdict of the jury or by plea of guilty,” but also stated

that no adjudication was necessary by the court. State v. Gazda, 257 So. 2d 242,

243-44 (Fla. 1971). Finally, in Clarke, we abrogated Orellanes and vacated the

federal conviction at issue. See Clarke, 822 F.3d 1214-15.

      Here, because the government’s 1986 prosecution of James was

substantially justified, James has not shown that the government’s position was

vexatious, frivolous, or pursued in bad faith. Pub. L. No. 105-119, § 617, 111 Stat.

2440, 2519 (1997). His concealed firearm conviction was vacated because of our

decision in Clarke, not due to any misconduct by the government. Up until that


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point, the district court had upheld James’s convictions multiple times, and we had

affirmed multiple times. The government appears to have relied on good law at the

time that it prosecuted James and on the date that his criminal case was pending.

There is no evidence that the government pursued its case in bad faith or that its

case was groundless in 1986. Pub. L. No. 105-119, 111 Stat. 2440, 2519 (1997).

Accordingly, the district court did not abuse its discretion by denying James an

award of attorney’s fees and costs under the Hyde Amendment.

      AFFIRMED.




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