           Case: 19-10596    Date Filed: 09/23/2019   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10596
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cr-20531-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

STEPHEN TELEMAQUE,

                                                          Defendant-Appellant.

                       ________________________

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

                            (September 23, 2019)

Before WILSON, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:
              Case: 19-10596     Date Filed: 09/23/2019   Page: 2 of 5


      Stephen Telemaque, a federal prisoner serving a 180-month prison term,

appeals the district court’s denial of his Fed. R. Civ. P. 60(b) motion. We affirm.

The 2015 Criminal Case (15-20531)

      In 2015 Telemaque was convicted of violations of 21 U.S.C. § 841(b)(1)(C)

and 18 U.S.C. §§ 111 (a)(1) and (b). He pled guilty to one count under a written

plea agreement. He later moved to withdraw his plea; the district court denied the

motion to withdraw but permitted Telemaque to challenge relevant sentencing

factors. The district court ultimately sentenced Telemaque to 180 months. This

Court affirmed the district court’s denial of Telemaque’s motion to withdraw.

The 2018 § 2255 Motion (18-23516)

      In 2018 Telemaque filed a motion to vacate his sentence under 28 U.S.C. §

2255, asserting ineffective assistance of counsel. The district court denied the

motion to vacate. This Court declined to grant Telemaque a certificate of

appealability to appeal the denial of his § 2255 motion. Telemaque also moved to

amend his § 2255 motion, which the district court denied. Telemaque appealed

that decision, and this Court has opened a separate appeal (18-14757) with respect

to Telemaque’s appeal of the district court’s denial of his motion to amend his

2018 § 2255 motion. A briefing schedule has been set in appeal No. 18-14757.

Rule 60(b) Motions (15-20531 and 18-23516)




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      Telemaque has now filed identical motions under Federal Rule of Civil

Procedure 60(b) in both the 2015 criminal case and the 2018 civil case. In the

2018 civil case, the district court dismissed for lack of jurisdiction, concluding that

the Rule 60(b) motion constituted an unauthorized second or successive § 2255

motion. Telemaque appealed that order, which was dismissed for want of

prosecution.

      In the 2015 criminal case, the district court denied the Rule 60(b) motion

because the Federal Rules of Civil Procedure cannot be used to seek relief in a

criminal case. This is the appeal of that decision.

This Appeal

      We review the denial of a Rule 60(b) motion for reconsideration for abuse of

discretion. Jackson v. Crosby, 437 F.3d 1290, 1295 (11th Cir. 2006). Rule 60(b)

motions may relieve a party from a judgment due to: (1) mistake, inadvertence,

surprise, or excusable neglect; (2) newly discovered evidence which could not

have been discovered earlier with due diligence; (3) fraud, misrepresentation, or

other misconduct of an adverse party; (4) a void judgment; (5) a judgment that has

been satisfied, released, discharged, reversed, or vacated; or (6) any other reason

justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). Rule

60 generally does not provide relief from judgment in a criminal case. See United

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


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       A prisoner may file a Rule 60 motion on a “limited basis” to allege a defect

in the integrity of his habeas proceedings with respect to the denial of his § 2255

motion. Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007). The

Supreme Court, in Gonzalez v. Crosby, explained that the Federal Rules of Civil

Procedure apply to habeas proceedings to the extent that they are “not inconsistent

with applicable federal statutory provisions.” 545 U.S. 524, 529 (2005) (quotation

marks omitted).1

       Telemaque raises two alleged defects in his habeas proceedings: (1) that the

district court failed to hold his Rule 60(b) motion in abeyance due to United States

v. Phifer, 909 F.3d 372 (11th Cir. 2018), and (2) that the district court did not

permit him to amend his motion pending the outcome of Phifer. Neither of the

actions complained of occurred in the case below, the 2015 criminal case (15-

20531). Rather, both Telemaque’s request to hold his Rule 60(b) motion in

abeyance and the denial of his request to amend occurred in the 2018 civil case

(18-23516).

       Telemaque has appealed these alleged defects in the wrong proceeding. His

first claim should have been raised in his appeal in his civil habeas case where he



       1
         Although the Supreme Court in Gonzalez noted that it was limiting its consideration to
28 U.S.C. § 2254 cases, we have held that the standard announced in Gonzalez applies to federal
prisoner cases as well. See Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en
banc), overruled on other grounds by McCarthan v. Dir. Of Goodwill Indus.-Suncoast, Inc., 851
F.3d 1076 (11th Cir. 2017) (en banc).
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filed his request to hold his Rule 60(b) motion in abeyance. His second claim is at

issue in his pending appeal in appeal no. 18-14757, and we decline to address it

here. We accordingly affirm.

      AFFIRMED.




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