           Case: 17-10295   Date Filed: 03/27/2018   Page: 1 of 6


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10295
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:16-cv-00479-WTH-PRL



ROBERT WAYNE GILLMAN,

                                                     Petitioner - Appellant,

                                  versus

SECRETARY, DEPARTMENT OF
CORRECTIONS,
FLORIDA ATTORNEY GENERAL,

                                                     Respondents - Appellees.

                       ________________________

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

                             (March 27, 2018)

Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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      Robert Wayne Gillman, a Florida inmate proceeding pro se, appeals the

district court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas

corpus as impermissibly second or successive. After careful review, we affirm in

part, vacate in part, and remand for further proceedings.

                                            I.

      Gillman filed a § 2254 petition to challenge his 2002 state criminal

convictions. He acknowledged that his petition was untimely but argued that his

attorney Charles Daniel Akes’s abandonment provided grounds for equitable

tolling of § 2254’s statute of limitations. The district court dismissed Gillman’s

petition, concluding that he was not entitled to equitable tolling based on Akes’s

conduct, and we affirmed on that ground alone. See Gillman v. Sec’y, Fla. Dep’t

of Corr., 576 F. App’x 940 (11th Cir. 2014) (unpublished). Gillman filed an

application in this Court for authorization to file a second or successive § 2254

petition to challenge his 2002 convictions, which we denied. See In re Gillman,

No. 15-14723, Nov. 19, 2015 Order. Gillman then filed the instant § 2254 petition

in district court alleging that in dismissing his initial petition as untimely the

district court overlooked misconduct by lawyers appointed to represent him after

Akes was replaced but before the statute of limitations expired—including lawyers

who represented him during his initial § 2254 proceedings in district court and this

Court—that would justify equitable tolling. He also advanced substantive claims


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of error in his convictions. After the State pointed out that his petition was second

or successive, Gillman asked the district court to avoid the bar to second or

successive habeas petitions as to his equitable tolling claim by construing his filing

as a motion for relief from a final judgment under Federal Rule of Civil Procedure

60(b)(6).

       Without addressing Rule 60(b)(6), the district court determined that

Gillman’s petition was successive and, because it was not authorized by this Court

pursuant to 28 U.S.C. § 2244(b)(1), was due to be dismissed. Gillman appealed. 1

                                               II.

       We review de novo a district court’s conclusion that a § 2254 petition is

second or successive such that the petitioner must first seek authorization in this

Court to file it. Stewart v. United States, 646 F.3d 856, 858 (11th Cir. 2011).

Subject to two exceptions, “[a] claim presented in a second or successive habeas

corpus application under section 2254 . . . shall be dismissed.” 28 U.S.C.

§ 2244(b)(2). A claim need not be dismissed if:

       (A) the applicant shows that the claim relies on a new rule of
       constitutional law, made retroactive to cases on collateral review by
       the Supreme Court, that was previously unavailable; or

       (B)(i) the factual predicate for the claim could not have been
       discovered previously through the exercise of due diligence; and


       1
       Gillman is not required to have a certificate of appealability to pursue his appeal. See
Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004).
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      (ii) the facts underlying the claim, if proven and viewed in light of the
      evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.

Id. Even if one of these exceptions applies, however, a petitioner must first “move

in the appropriate court of appeals for an order authorizing the district court to

consider the application” before the district court may consider it. Id.

§ 2244(b)(3)(A).

      We review for an abuse of discretion the district court’s denial of a Rule

60(b) motion. Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). “We will

find an abuse of discretion only when a decision is in clear error, the district court

applied an incorrect legal standard or followed improper procedures, or when

neither the district court’s decision nor the record provide[s] sufficient explanation

to enable meaningful appellate review.” Friends of the Everglades v. S. Fla. Water

Mgmt. Dist., 678 F.3d 1199, 1201 (11th Cir. 2012).

      We must liberally construe Gillman’s filings because he is proceeding

without counsel. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

                                          III.

      We agree with the district court that Gillman’s § 2254 petition, if construed

as such, was second or successive and that he was required to obtain authorization

from this Court before filing it in the district court, which he did not do. As the

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district court properly concluded, both Gillman’s initial and instant § 2254

petitions challenged the same 2002 state court judgment of conviction. His instant

petition is therefore successive. See Magwood v. Patterson, 561 U.S. 320, 338-39

(2010) (explaining that a § 2254 petition addressing a state court judgment that

previously has been challenged via an initial § 2254 petition is successive). Even

if Gillman’s substantive claims were based on newly discovered evidence such that

they would qualify under one of the exceptions to § 2244(b)’s dismissal

requirement, the statute required him to seek authorization from this Court before

filing the second petition in the district court, and Gillman has not obtained such

authorization.

      Gillman contends that the district court failed to consider his request to

construe his petition, insofar as it pertained to equitable tolling based on the

conduct of his lawyers who replaced Akes, as a motion for relief under Federal

Rule of Civil Procedure 60(b)(6) from the judgment dismissing his initial § 2254

petition. Because we cannot discern from the record whether the district court

considered Gillman’s tolling argument under Rule 60(b)(6) or, if so, on what

grounds it may have rejected his argument, we cannot meaningfully review its

decision and therefore remand. See Friends of the Everglades, 678 F.3d at 1201.

      Rule 60(b)(6), the catchall provision of Rule 60(b), authorizes relief for “any

other reason that justifies relief” from a judgment. Fed. R. Civ. P. 60(b)(6).


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“Where a Rule 60(b) motion challenges only a district court’s prior ruling that a

habeas petition was time-barred, it ‘is not the equivalent of a successive habeas

petition.’” Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1210 (11th Cir.

2014) (quoting Gonzalez v. Crosby, 545 U.S. 524, 535-36 (2005)). But “a movant

seeking relief under Rule 60(b)(6) [must] show extraordinary circumstances

justifying the reopening of a final judgment.” Gonzalez, 545 U.S. at 535 (internal

quotation marks omitted).

      We express no opinion on whether Gillman has shown extraordinary

circumstances based on the conduct of his lawyers who replaced Akes that would

justify revisiting the equitable tolling question. We note that “[e]ven where the

Rule 60(b) motion demonstrates sufficiently extraordinary circumstances, whether

to grant the requested relief is a matter for the district court’s sound discretion.”

Lugo, 750 F.3d at 1210 (alteration and internal quotation marks omitted). But the

district court’s silence on the matter renders impossible our task of reviewing its

decision. Thus, we remand for the district court to decide whether to entertain

Gillman’s pleading as a Rule 60(b)(6) motion and, if so, whether relief is

warranted.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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