              Case: 15-12943    Date Filed: 02/08/2016   Page: 1 of 5


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 15-12943
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:00-cr-00425-JIC-6

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

SAMUEL KNOWLES,

                                                             Defendant-Appellant.

                          ________________________

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

                                (February 8, 2016)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Samuel Knowles, proceeding pro se, appeals the district court’s denial of his

motion for retroactive recusal. Knowles filed the motion after he was convicted

and sentenced in the district court and also well after his 28 U.S.C. § 2255 motion
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to vacate was denied. Knowles’s motion alleged that the district judge should be

retroactively recused from Knowles’s underlying criminal proceedings for bias, as

evidenced by a number of the court’s rulings in the criminal case. Knowles sought

relief under 28 U.S.C. § 455, or, alternatively, under Federal Rule of Civil

Procedure 60(b). After careful review, we affirm.

      We are obligated to determine, as an initial matter, whether the district court

had jurisdiction to consider a case on the merits. Boyd v. Homes of Legend, Inc.,

188 F.3d 1294, 1297-98 (11th Cir. 1999).            We review de novo questions

concerning subject matter jurisdiction of the district court. Bishop v. Reno, 210

F.3d 1295, 1298 (11th Cir. 2000). We construe pleadings filed by pro se parties

liberally. See Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997).

      A judge may be disqualified “in any proceeding in which his impartiality

might reasonably be questioned,” or in any circumstances “[w]here he has a

personal bias or prejudice concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding.” 28 U.S.C. §§ 455(a), (b)(1). Under

§ 455, a “proceeding” is defined to include “pretrial, trial, appellate review, or

other stages of litigation.”   Id. § 455(d)(1).   Therefore, a district court lacks

jurisdiction to consider a motion to recuse the court if it is filed when no case is

pending before the district court. United States v. Elso, 571 F.3d 1163, 1166 (11th

Cir. 2009). In Elso, a federal prisoner filed a motion to recuse the district court


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judge from any further proceedings after we had affirmed his convictions and

sentences on direct appeal and the Supreme Court had denied his petition for

certiorari. Id. at 1165. We affirmed the district court’s denial of his § 455 motion

because the district court lacked jurisdiction to grant relief. Id.

      Rule 60(b) allows a party to seek relief or reopen a civil case based upon the

following limited circumstances: (1) mistake or excusable neglect; (2) newly

discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been

discharged; and (6) “any other reason that justifies relief.” Fed. R. Civ. P. 60(b).

Federal Rule of Civil Procedure 60(b) does not provide for relief from judgment in

a criminal case. United States v. Mosavi, 138 F.3d 1365, 1366 (11th Cir. 1998).

      Collateral attacks on the legality of a federal sentence typically must be

brought under § 2255. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir.

2005).    Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), a prisoner who previously filed a § 2255 motion must apply for and

obtain authorization from a court of appeals before filing a “second or successive”

§ 2255 motion.       28 U.S.C. §§ 2244(b)(3)(A), 2255(h).             Without this prior

authorization, a district court lacks jurisdiction to consider a second or successive §

2255 motion. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005).

      A Rule 60(b) motion from the denial of a § 2255 motion is considered a

successive motion if it seeks to present a new ground for relief from a judgment of


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conviction or if it attacks the federal court’s previous resolution of a claim on the

merits. Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (addressing a § 2254

habeas petition); see also Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir.

2011) (en banc) (holding that the rule espoused in Gonzalez applies equally to

federal prisoners). In other words, when a federal prisoner seeks to assert or

reassert a claim for relief but does not point out a defect in the integrity of an

earlier § 2255 proceeding, his motion is the equivalent of a second or successive

motion. Gilbert, 640 F.3d at 1323. Conversely, a Rule 60(b) motion is permissible

if “neither the motion itself nor the federal judgment from which it seeks relief

substantively addresses federal grounds for setting aside the movant’s . . .

conviction.” Gonzalez, 545 U.S. at 533. Thus, a Rule 60(b) motion would be

proper, for example, if it: (1) asserts that a federal court’s previous ruling, that

precluded a merits determination (i.e., a procedural ruling such as a failure to

exhaust, a procedural bar, or a statute-of-limitations bar), was in error; or (2)

attacks a defect in the federal proceeding’s integrity, such as a fraud upon the

court. See id. at 532-535 & n.4, n.5.

      Here, the district court did not have jurisdiction to hear Knowles’s § 455

motion. As the record shows, Knowles filed his motion for recusal after his

criminal prosecution was concluded, after his convictions and sentences were

affirmed by this Court, and after his § 2255 motion to vacate was denied by the


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district court. See Elso, 571 F.3d at 1166. Although he had pending motions to

unseal documents at the time he filed his recusal motion, they were not part of the

litigation, but were administrative in nature and were not collateral challenges to

his convictions. Additionally, his § 455 motion did not relate to recusal regarding

these pending motions; rather, it challenged proceedings that had already been

completed. As a result, no case was pending before the district court at the time

Knowles filed his motion for recusal.

      As for Knowles’s alternative request for relief under Rule 60(b), it was

properly denied because Knowles’s motion related to his criminal proceedings and

Rule 60(b) does not provide for relief from judgment in a criminal case. Mosavi,

138 F.3d at 1366. Although Rule 60(b) can provide relief from a § 2255 judgment,

Knowles only claimed that the trial court erred in conducting his underlying

criminal proceedings. Gonzalez, 545 U.S. at 532-535 & n.4, n.5. To the extent

Knowles’s motion could be construed as a successive § 2255 motion, it was

improperly filed without our authorization.    See 28 U.S.C. §§ 2244(b)(3)(A),

2255(h). Thus, the district court lacked jurisdiction to consider the motion. Holt,

417 F.3d at 1175.

      AFFIRMED.




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