           Case: 13-13524   Date Filed: 01/28/2015   Page: 1 of 4


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13524
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 5:12-cv-00225-WTH-PRL



OSCAR ANDREWS,

                                                     Petitioner - Appellant,

                                  versus

WARDEN, FCC COLEMAN - MEDIUM,

                                                     Respondent - Appellee.

                      ________________________

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

                            (January 28, 2015)

Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Oscar Andrews, a federal prisoner proceeding pro se, appeals the district

court’s denial of two post-judgment motions he filed after the district court

dismissed his 28 U.S.C. § 2241 petition for writ of habeas corpus. 1

       Because Mr. Andrews sought relief from the judgment of dismissal,2 the

district court construed his two motions, one entitled “Motion for Resolution of

Jurisdictional Question” (“first motion”) and the other entitled “Request for Relief

from the Judgment” (“second motion”), as motions under Rule 60(b) of the Federal

Rules of Civil Procedure. The district court concluded the first motion was

untimely and procedurally barred because it presented substantive arguments that

Mr. Andrews should have made on appeal from the dismissal of his § 2241

petition. In his second motion, Mr. Andrews contended that, under Alleyne v.

United States, 133 S. Ct. 2151 (2013), his sentences were unconstitutional because

the indictment did not charge him with a particular drug quantity. The district

court denied this motion as well, concluding Alleyne was inapplicable because it

was not retroactive in a § 2241 proceeding. This is Mr. Andrews’s appeal.




1
  Mr. Andrews’s motion for leave to file his reply brief out of time is GRANTED.
2
  In his appellate brief, Mr. Andrews also contends the district court erred in dismissing his
petition for writ of habeas corpus under § 2241. But, as a part of our prior review of Mr.
Andrews’s motion to proceed in forma pauperis, we concluded that his notice of appeal from the
denial of his § 2241 petition was untimely and that our jurisdiction in this appeal therefore was
limited to a review of the district court’s disposition of Mr. Andrews’s post-judgment motions
under Rule 60(b). Mr. Andrews did not timely seek review of that determination and we do not
disturb it here.
                                                2
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       We review a district court’s denial of a Rule 60(b) motion for an abuse of

discretion. Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006).3 A Rule

60(b) motion may be granted for any of the following reasons: (1) mistake,

inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that

could not have been discovered within 28 days of the entry of judgment; (3) fraud

or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has

been satisfied, is based on a previous vacated judgment, or is no longer equitable;

or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b)(1)-(6). A

“movant seeking relief under Rule 60(b)(6), [the last of these,] must show

extraordinary circumstances justifying the reopening of a final judgment.” Lugo v.

Sec’y, Fla. Dep’t of Corrs., 750 F.3d 1198, 1210 (11th Cir. 2014) (internal

quotation marks omitted). A motion under Rule 60(b) may not be used as a

substitute for a timely appeal. See Jackson, 437 F.3d at 1296. And it may not be

used to assert, or reassert, claims of error in the movant’s conviction. See

Gonzalez v. Crosby, 545 U.S. 524, 538 (2005).

       Mr. Andrews contends the district court erred by not addressing the merits of

his first motion and by overlooking arguments in his second motion and failing to

make a determination as to Alleyne’s retroactivity. We disagree. First, we agree

with the district court that the arguments Mr. Andrews presented in his first motion

3
 We also liberally construe Mr. Andrews’s pleadings because he is proceeding without counsel.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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— that he was not required to satisfy the savings clause of 28 U.S.C. § 2255 as a

prerequisite to relief under § 2241, that § 2241 itself lacks a savings clause or bar

to relief, and that a number of this Court’s cases affirming the denial or dismissal

of § 2241 petitions are contrary to Supreme Court precedent — did not fall into

one of the six bases for a Rule 60(b) motion and, instead, could be raised only in an

appeal from the denial of his § 2241 petition. See Fed. R. Civ. P. 60(b)(1)-(6);

Jackson, 437 F.3d at 1296. Second, Mr. Andrews’s contention that the district

court failed to address the retroactivity of Alleyne in his second motion is belied by

the record. Further, to the extent Mr. Andrews challenges the district court’s

retroactivity determination, his challenge is without merit. See Jeanty v. Warden,

757 F.3d 1283, 1285 (11th Cir. 2014) (holding Alleyne is not retroactive upon a

§2241 habeas petition). In sum, Mr. Andrews’s motions did not present the district

court with valid reasons to revisit its dismissal of his § 2241 petition, and he gives

us no cause to reverse here.

AFFIRMED.




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