           Case: 13-11777   Date Filed: 03/12/2014   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11777
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket Nos. 2:10-cv-14276-DLG,
                        2:09-cr-14033-DLG-1


JUSTIN DANIEL OSBORNE,

                                                         Petitioner - Appellant,

                                  versus



UNITED STATES OF AMERICA,

                                                        Respondent - Appellee.

                      ________________________

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

                            (March 12, 2014)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Justin Osborne, a federal prisoner proceeding pro se, appeals from the denial

of his motion for reconsideration of the denial of his 28 U.S.C. § 2255 motion. In

his motion and on appeal, he argues that he was abandoned by his attorney, who

was disbarred during the time available to appeal his underlying criminal case, and

that this extraordinary circumstance entitles him to file an out-of-time direct appeal

in his criminal case on those claims that the district court concluded were

procedurally barred in his § 2255 proceedings.

                                   I. Background

      Mr. Osborne is currently serving a 120 month-sentence of imprisonment

following his conviction entered on his guilty plea to one count of using the

internet to entice a minor to engage in sexual activity, in violation of 18 U.S.C. §

2422(b). He did not appeal his sentence or conviction, but filed a timely pro se

motion under § 2255 in seeking to set aside his sentence on several grounds,

including multiple claims of ineffective assistance of counsel, government

misconduct, and illegal arrest. The district court adopted the magistrate judge’s

report and recommendation denying all of the claims, which pertinent to this

appeal concluded that Mr. Osborne’s claims of government misconduct and illegal

arrest were procedurally barred because they could have been, but were not, raised

on direct appeal. Alternatively, the magistrate judge concluded that Mr. Osborne

waived those claims by entering a knowing and voluntary plea. Mr. Osborne’s

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motion for reconsideration of that order was denied and Mr. Osborne did not

appeal.

      Several months later, Mr. Osborne filed a document entitled “Motion for

Permission to file Subsequent 2255 or to file 2255 Rule 60(b) Motion,” in which

he argued that he was deprived of his Sixth Amendment right to counsel due to his

attorney’s disbarment, and that the district court lacked jurisdiction to prosecute

him. As relief, Mr. Osborne sought equitable tolling of the criminal appeal period

and permission to file an out-of-time appeal. The district court denied the motion,

concluding that the court of appeals and not the district court has authority to

permit a subsequent § 2255 motion and that Mr. Osborne had failed to present

sufficient grounds for Rule 60(b) relief.

      Mr. Osborne subsequently filed the motion at issue in this appeal, purporting

to be for reconsideration of the district court’s order denying him an out-of-time

appeal. He argued for the first time that he had cause, i.e., his attorney’s

abandonment of him during the criminal appeal period, for his procedural default

of the defaulted claims raised in his original § 2255 motion. He argued that his

attorney’s abandonment constituted an “extraordinary circumstance” that justified

equitable tolling of the appeal period. The district court denied the motion, stating

that it was doing so for the reasons it had denied Mr. Osborne’s previous motions.

When Mr. Osborne filed his notice of appeal of this order, the district court granted

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a certificate of appealability on the denial of Mr. Osborne’s request for an out-of-

time appeal.

                                   II. Discussion

      As an initial matter, the motion at issue in this appeal was one of several in a

line of motions filed by Mr. Osborne in his § 2255 proceeding, which is governed

by the statutory restrictions of the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”). As a result, we must determine the appropriate construction of Mr.

Osborne’s motion. In doing so, we keep in mind that because Mr. Osborne is

proceeding pro se, his “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).

      Although Mr. Osborne titled his motion as a “Motion for Reconsideration,”

upon careful review of its substance we believe that it is best construed as a Rule

60(b)(6) motion seeking relief from the district court’s denial of Mr. Osborne’s

original § 2255 motion. See Smith v. U.S. Parole Comm’n, 721 F.2d 346, 348

(11th Cir. 1983) (“If scrutiny of a post-trial motion suggests that it should be

treated in a manner different than the label used by the party, the court may discard

an inappropriate label to render a decision based upon the motion’s substance.”).

Mr. Osborne succinctly states in his motion that it is his intention to “explain [his]

cause for procedural default as it pertains to filing a Notice of Appeal, by clearly

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showing, through the record, that [Mr. Osborne’s attorney] was in fact disbarred,

and that this disbarment qualifies as attorney abandonment. As such, this

abandonment caused the procedural default.” He specifically requested the district

court to consider this claim “separate from its original decision on [his attorney’s]

effectiveness.” And he related his circumstances to the two leading Supreme Court

cases, Holland v. Florida, 560 U.S. 631 (2010) and Maples v. Thomas, 132 S. Ct.

912 (2012), regarding attorney gross negligence or abandonment as the

extraordinary circumstance justifying equitable tolling to overcome procedural

default in federal habeas proceedings. Thus, Mr. Osborne’s arguments are

properly deemed as being addressed to the magistrate judge’s report and

recommendation and district court’s order adopting those recommendations that

Mr. Osborne was procedurally barred from raising his claims of illegal arrest and

government misconduct in his original § 2255 motion.

      Moreover, we construe Mr. Osborne’s motion as a Rule 60(b)(6) motion and

not as a second or successive § 2255 motion because it is not attacking “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.” Gonzalez v. Crosby, 545 U.S.

524, 532 (2005). As the Supreme Court recognized in Gonzalez, “[b]ecause

petitioner’s Rule 60(b) motion challenges only the District Court’s previous ruling

on the AEDPA statute of limitations, it is not the equivalent of a successive habeas

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petition.” 545 U.S. at 535-36. Likewise, Mr. Osborne here is challenging the

district court’s ruling on the procedural bar to raising his constitutional claims of

illegal arrest and government misconduct and not any merits ruling. “A motion

that, like petitioner’s, challenges only the District Court’s failure to reach the

merits does not warrant such treatment [as a successive habeas petition], and can

therefore be ruled upon by the District Court without [satisfying the statutory

requirements for filing a second or successive habeas petition].” Id. at

538.

       “We review the denial of a motion for relief from judgment under Rule

60(b) for an abuse of discretion.” Howell v. Sec’y, Fla. Dep’t of Corr., 730 F.3d

1257, 1260 (11th Cir. 2013). Rule 60(b)(6) allows for relief from any order for

any reason justifying relief and must be filed in a reasonable time. See Fed. R.

Civ. P. 60(b)(6). A petitioner who seeks relief pursuant to Rule 60(b)(6) must

“show ‘extraordinary circumstances’ justifying the reopening of a final judgment.”

Gonzalez, 545 U.S. at 535; Howell, 730 F.3d at 1260 (same).

       We note, however, that Mr. Osborne’s arguments in his motion and on

appeal primarily address not the basis for reopening his § 2255 proceedings under

Rule 60(b)(6), but rather the “cause” to overcome the district court’s ruling that his

claims of illegal arrest and government misconduct were procedurally barred from

federal review. It is well-established that in the case of procedural bar in federal

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habeas proceedings that “review of the claims is barred unless the prisoner can

demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). Here,

Mr. Osborne argues that his attorney’s abandonment via disbarment during the

period of time available for filing the direct appeal in his criminal case establishes

the necessary element of “cause” to overcome the procedural bar. Moreover, he

correctly notes that the Supreme Court recently held, in Maples, 132 S. Ct. at 927,

that attorney abandonment is an extraordinary circumstance that is sufficient cause

to excuse a procedural bar to federal review. Thus, if we were to decide that the

circumstances involving the disbarment of Mr. Osborne’s attorney constitute

abandonment under Maples, Mr. Osborne would be able to establish the “cause”

element to overcome the procedural bar in his federal habeas proceedings.

      However, to obtain relief under Rule 60(b)(6), Mr. Osborne first must show

that some “extraordinary circumstance” justifies the reopening of his original §

2255 motion so that a court can even reach the question of whether he can establish

cause and prejudice to overcome the procedural bar to federal review of his claims.

Construing his pro se motion and appellate brief liberally, we find that Mr.

Osborne’s significant reliance on Maples, which was not decided until one year

after the final ruling on his original § 2255 motion, is an argument that the change

in law effectuated by the Supreme Court’s decision in Maples is the extraordinary

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circumstance justifying the reopening of his original § 2255 motion so that he can

try to show cause and prejudice to overcome the procedural bar. This argument,

however, is precluded by binding Supreme Court and circuit precedent. See e.g.,

Gonzalez, 545 U.S. at 536 (holding that a “change in the interpretation of the

AEDPA statute of limitations” is not an extraordinary circumstance justifying

relief under Rule 60(b)(6)); Howell, 730 F.3d 1260-61 (applying Gonzalez to

conclude that Holland, which altered the interpretation of whether attorney gross

negligence could establish the basis for equitable tolling to overcome AEDPA’s

statute of limitations, is not an extraordinary circumstance for Rule 60(b)(6) relief).

We see no meaningful distinction between the arguments raised, but rejected, in

Gonzalez and Howell of whether a change in the decisional law affecting the

interpretation of AEDPA’s statute of limitations justifies Rule 60(b)(6) relief and

the argument in this case that the change in law in Maples, which held that attorney

abandonment constitutes “cause” to overcome the procedural bar doctrine of

federal habeas review, is an extraordinary circumstance meriting Rule 60(b)(6)

relief.

          Accordingly, we cannot say that the district court abused its discretion in

denying Mr. Osborne’s motion and thereby affirm its denial of his request for an

out-of-time direct appeal.

          AFFIRMED.

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