             Case: 18-12284    Date Filed: 01/28/2019   Page: 1 of 8


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12284
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:00-cr-00001-JAL-1

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                     versus

EWIN OSCAR MARTINEZ,

                                                        Defendant-Appellant.

                         ________________________

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

                               (January 28, 2019)

Before TJOFLAT, JORDAN, and GRANT, Circuit Judges.

PER CURIAM:

      Ewin Oscar Martinez alleged a jurisdictional defect in his criminal

convictions through a motion filed under Rule 60(b) of the Federal Rules of Civil

Procedure. The district court construed his motion as a second or successive one
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under 28 U.S.C. § 2255 and dismissed it for lack of jurisdiction because Martinez

did not receive authorization to file it from us. We affirm.

                                          I.

       In 2000, a federal jury convicted Martinez of conspiracy to commit hostage

taking, hostage taking, conspiracy to commit carjacking, carjacking, and using and

carrying a firearm during a crime of violence. The United States District Court for

the Southern District of Florida sentenced him to life imprisonment. This Court

affirmed the convictions and sentence. See United States v. Ferreira, 275 F.3d 1020

(11th Cir. 2001).

       In 2002, Martinez filed a motion under 28 U.S.C. § 2255 to vacate, set aside,

or correct his sentence. The district court denied that motion. Since then, Martinez

has repeatedly filed motions attacking his convictions, and the district court has

repeatedly dismissed them for lack of jurisdiction because Martinez has (repeatedly)

failed to obtain our authorization to file a second or successive § 2255 motion. See

Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (“Without

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

petition.”).

       In Martinez’s latest filing, he submitted a “Motion to Reverse Jurisdictional

Errors and Flagrant Violations of the Defendant’s Constitutional Right of Due

Process of Law,” which he supplemented six times. As supplemented, Martinez’s


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argument was that the district court lacked jurisdiction to sentence him because the

government had not proven his guilt beyond reasonable doubt, and that his judgment

of conviction was therefore void under Rule 60(b)(4) of the Federal Rules of Civil

Procedure. About midway through his supplements, Martinez also filed a motion to

disqualify the district judge for bias and prejudice under 28 U.S.C. §§ 144 and 455.

In a single omnibus order dealing with these motions and others, the district court

construed Martinez’s Rule 60(b) motion as a successive § 2255 motion and

dismissed it for lack of jurisdiction, and denied Martinez’s disqualification motion

because there was “no evidence of bias or prejudice” against Martinez or in favor of

the government.

                                          II.

      Although we typically review the denial of a Rule 60(b) motion for abuse of

discretion, we review a district court’s decision to construe such a filing as a second

or successive § 2255 motion de novo. See Farris, 333 F.3d at 1216. We review a

district judge’s refusal to recuse herself for abuse of discretion. Murray v. Scott, 253

F.3d 1308, 1310 (11th Cir. 2001).

                                          III.

      Martinez raises two arguments. First, he contends that because a “void

judgment cannot be procedurally defaulted, forfeited or waived,” the district court

should have considered his jurisdictional arguments. Second, he argues that due


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process required the district court to rule on the disqualification motion before

considering the Rule 60(b) motion. We find neither argument persuasive.

       A. Rule 60(b) Motion

       A federal prisoner must obtain our authorization before filing a second or

successive § 2255 motion, and the failure to do so deprives the district court of

jurisdiction to consider the motion. See 28 U.S.C. § 2255(h); Farris, 333 F.3d at

1216. Here, the district court correctly construed and dismissed Martinez’s Rule

60(b) motion as an unauthorized successive § 2255 motion.

       It does not matter that Martinez purported to file his motion under Rule 60(b).

The Supreme Court has held that using Rule 60(b) “to present new claims for relief

from a state court’s judgment of conviction—even claims couched in the language

of a true Rule 60(b) motion—circumvents AEDPA’s requirement that a new claim

be dismissed unless it relies on either a new rule of constitutional law or newly

discovered facts.” Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). 1 Martinez’s filing

is an attack on the validity of his criminal conviction, so it is properly analyzed as a

successive § 2255 motion. Gonzalez held that “a Rule 60(b)(6) motion in a § 2254

case is not to be treated as a successive habeas petition if it does not assert, or




1
 The Gonzalez Court addressed this issue in the § 2254 context, but we have stated that “the
principles developed in habeas cases also apply to § 2255 motions.” Gay v. United States, 816
F.2d 614, 616 n.1 (11th Cir. 1987).


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reassert, claims of error in the movant’s state conviction.” 545 U.S. at 538. Here,

though, Martinez does assert claims of error in his conviction. We have held, after

Gonzalez, that a Rule 60(b) motion qualifies as a second or successive habeas

petition in these circumstances. See Williams v. Chatman, 510 F.3d 1290, 1293–95

(11th Cir. 2007).

      Nor does it matter that Martinez alleges a jurisdictional defect in his criminal

convictions. First, we doubt that the jurisdictional nature of a claim seeking relief

from a criminal judgment excuses § 2255 movants from the usual authorization

requirement for second or successive motions. The statutory text makes clear that a

motion under § 2255 is itself the proper way to assert that “the court was without

jurisdiction” to impose a sentence. 28 U.S.C. § 2255(a); see also Williams, 510 F.3d

at 1294 (stating, without qualification, that when “a Rule 60(b) motion qualifies as

a second or successive habeas petition as defined in Gonzalez,” it “must comply with

the requirements for such petitions under the AEDPA”). Second, although Martinez

styles his claim as jurisdictional, he actually argues that “the government large [sic]

failed to prove the elements of the charges of ‘carjacking’ and ‘use of firearms’ in

this case.” His claim is thus functionally a challenge to the sufficiency of the

evidence, not a true claim of jurisdictional defect.




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      In sum, because Martinez did not receive our authorization to file his

successive § 2255 motion, the district court correctly dismissed it for lack of

jurisdiction.

      B. Disqualification Motion

      The district court denied Martinez’s disqualification motion in the same

omnibus order in which it dismissed his Rule 60(b) motion. Martinez did not include

the district court’s ruling on his disqualification motion in his notice of appeal, so

we lack jurisdiction to consider it on the merits. See Osterneck v. E.T. Barwick

Indus., Inc., 825 F.2d 1521, 1528 (11th Cir. 1987). But Martinez did appeal the

district court’s dismissal of his Rule 60(b) motion, and he argues that the district

court should not have considered that until it had ruled on his disqualification

motion.

      In general, a court should rule on a disqualification motion before it takes

other non-ministerial actions in a case. See, e.g., In re Sch. Asbestos Litig., 977 F.2d

764, 784 n.26 (3d Cir. 1992). But we have not treated this preferred order of

operations as an inflexible rule. Here, the district court addressed recusal and the

Rule 60(b) motion in the same order, tending to recusal first. Martinez cites no

authority to suggest this was error, and—particularly in light of the district court’s

denial of the disqualification motion, Martinez’s failure to appeal that denial, and




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the fact that the district court correctly dismissed the Rule 60(b) motion—we discern

no grounds for reversal.

                                      *       *    *

      The district court’s dismissal of Martinez’s Rule 60(b) motion is

AFFIRMED.




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JORDAN, Circuit Judge, Concurring.

      I join the courts opinion, but add that Mr. Martinez’s recusal/disqualification

claim also fails on the merits.




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