              Case: 18-10121    Date Filed: 06/06/2019   Page: 1 of 5


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-10121
                            Non-Argument Calendar
                          ________________________

          D.C. Docket Nos. 1:14-cv-23030-WJZ; 1:13-cr-20727-WJZ-1

MICHAEL ALI BRYANT, SR.,

                                                              Petitioner-Appellant,

                                      versus

UNITED STATES OF AMERICA,

                                                             Respondent-Appellee.

                          ________________________

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

                                  (June 6, 2019)

Before MARCUS, JULIE CARNES and BRANCH, Circuit Judges.

PER CURIAM:

      Michael Bryant, Sr., a federal prisoner who is serving a 186-month sentence

for conspiracy to possess with intent to distribute cocaine, possession of

unauthorized access devices, and aggravated identity theft, appeals the dismissal of
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his pro se Fed. R. Civ. P. 60(b) motion for relief from the judgment denying his first

28 U.S.C. § 2255 motion to vacate his sentence. On appeal, Bryant argues that the

district court erred in dismissing his Rule 60(b) motion for lack of subject matter

jurisdiction as an impermissibly successive § 2255 motion or an untimely Rule 60(b)

motion. After careful review, we affirm.

      We review issues of subject matter jurisdiction de novo.            Williams v.

Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007). We also hold pro se pleadings to a

less stringent standard than counseled pleadings, and will liberally construe them “to

discern whether jurisdiction to consider [a] motion can be founded on a legally

justifiable base.” Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991).

However, we do not consider issues that were not before the district court, subject

to certain exceptions, not relevant here, where we may exercise our discretion.

Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004).

      We generally review a district court’s orders under Rule 60(b) for abuse of

discretion. Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir. 2001). Rule 60(b)

provides that a “court may relieve a party . . . from a final judgment, order, or

proceeding for [ ] (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence that, with reasonable diligence, could not have been discovered

in time to move for a new trial under Rule 59(b); [or] (4) the judgment is void.” Fed.

R. Civ. P. 60(b)(1)-(2), (4). A Rule 60(b)(1) and (2) motion must be made within



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one year of the entry of final judgment. Fed. R. Civ. P. 60(c)(1). By contrast, a Rule

60(b)(4) motion must be filed within a “reasonable time.” Id. What constitutes a

reasonable time is determined by considering “whether the parties have been

prejudiced by the delay and whether a good reason has been presented for failing to

take action sooner.” BUC Int’l Corp. v. Int’l Yacht Council Ltd., 517 F.3d 1271,

1275 (11th Cir. 2008) (quotation omitted).

      A district court does not have jurisdiction to review a federal prisoner’s

successive § 2255 motion, unless that motion is first certified by the appropriate

Court of Appeals. 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); Farris v. United States, 333

F.3d 1211, 1216 (11th Cir. 2003). A Rule 60(b) motion is a successive § 2255

motion if it seeks to add a new ground for relief or attacks the district court’s prior

resolution of a claim on the merits, but not when it attacks a defect in the integrity

of the § 2255 proceedings. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)

(addressing a Rule 60(b) motion in the 28 U.S.C. § 2254 context); Gilbert v. United

States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (applying Gonzalez in the §

2255 context), overruled on other grounds by McCarthan v. Dir. of Goodwill Indus.

Suncoast, Inc., 851 F.3d 1076 (11th Cir. 2017) (en banc).

      Generally, to attack a defect in the integrity of the § 2255 proceedings, and

escape treatment as an impermissibly successive § 2255 motion, the Rule 60(b)

motion must allege a fraud on the court, or allege a procedural error that prevented



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the court from reaching the merits of the § 2255 motion. See Gonzalez, 545 U.S. at

532 & nn.4-5; Williams, 510 F.3d at 1295. For example, in Gonzalez, the Supreme

Court ruled that we erred in holding that the petitioner did not qualify to seek Rule

60(b) relief when his motion challenged only the district court’s statute-of-

limitations ruling, which prevented a disposition on the merits of his § 2254 claim.

545 U.S. at 535-36, 538.

      Here, the district court did not err in dismissing Bryant’s Rule 60(b) motion

either for lack of subject matter jurisdiction as an impermissibly successive § 2255

motion, or as an untimely Rule 60(b) motion.            See 28 U.S.C. §§ 2255(h),

2244(b)(3)(A); Fed. R. Civ. P. 60(c)(1); Farris, 333 F.3d at 1216. In his motion,

Bryant claimed that the magistrate judge’s report and recommendation on his prior

§ 2255 motion failed to address his argument that, pursuant to United States v.

Shannon, 631 F.3d 1187 (11th Cir. 2011), his Florida conviction for conspiracy to

distribute cocaine was not a career offender predicate offense. To the extent

Bryant’s argument was an attack on the magistrate judge’s merits resolution of the

second ground for relief in his prior § 2255 motion, his Rule 60(b) motion was an

impermissibly successive § 2255 motion. See Gonzalez, 545 U.S. at 531-32;

Gilbert, 640 F.3d at 1323.

      To the extent, however, that Bryant’s motion argued that the magistrate judge

failed to reach the merits of one of the claims in his prior § 2255 proceeding, thereby



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attacking a defect in the integrity of the prior proceeding, it was a true Rule 60(b)

motion. See Gonzalez, 545 U.S. at 531-32; Gilbert, 640 F.3d at 1323. But even if

it was a true Rule 60(b) motion, it was untimely. See Fed. R. Civ. P. 60(c)(1).

Notably, Bryant’s motion was an untimely Rule 60(b)(1) or (2) motion because he

filed it more than a year after the district court issued its order denying his prior §

2255 motion. See id. Moreover, Bryant’s motion was an untimely Rule 60(b)(4)

motion because he did not present any arguments that his motion was filed within a

reasonable time. See BUC Int’l Corp., 517 F.3d at 1275. Because it was untimely

whether it was a Rule 60(b)(1), (2), or (4) motion, we need not resolve which Rule

60(b) motion Bryant was attempting to raise.

      In short, the district court did not err in dismissing Bryant’s motion because

we did not grant authorization for him to file a successive § 2255 motion, and, even

if construed as a true Rule 60(b) motion, it was untimely.

      AFFIRMED.




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