11th Circuit Remands Case Based On Erroneous Denial Of Petitioner's Rule 60(b) Motion

Per Zakrzewski v. McDonough, --- F.3d ----, 2007 WL 1892147 (11th Cir.(Fla.) Jul 03, 2007) (NO. 06-12804):

If Petitioner's 60(b) motion is not really a second or successive habeas petition, the district court has jurisdiction to consider the merits of the motion. In Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005), the Supreme Court discussed criteria for determining when a Rule 60(b) motion in a habeas case should be treated as an attempt to circumvent the AEDPA limitations on second or successive petitions. The Court 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 reassert, claims of error in the movant's state conviction." Id. at 538, 125 S.Ct. at 2651.

In this case, the district court erred in concluding that Petitioner's 60(b) motion was a successive habeas petition that the district court was without jurisdiction to hear. Petitioner's motion does not assert or reassert allegations of error in his state convictions. Thus, Petitioner's 60(b) motion is not a second or successive habeas petition, and the district court has jurisdiction to consider the motion and to decide its merits.

Though we express no opinion on the merits of Petitioner's motion, we note that our precedents set a high standard for granting postjudgment relief under Rule 60(b). " 'Fraud upon the court' ... embrace[s] only that species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication." Travelers Indem. Co. v. Gore, 761 F.2d 1549, 1551 (11th Cir.1985). We encourage the district court to consider the following several questions of fact as it determines whether Petitioner has established "sufficiently extraordinary" circumstances, Toole v. Baxter Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir.2000), that would entitle him to relief under Rule 60(b): (1) whether Nall made a material misrepresentation to Petitioner, upon which he relied to his detriment, regarding the filing of Petitioner's petition for habeas relief; (2) whether Nall made a material misrepresentation to the district court upon which it relied in its decision to appoint Nall as counsel; (3) whether Petitioner ratified any alleged wrongful acts by Nall; (4) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Petitioner's motion for new counsel; (5) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Nall's motion to withdraw; and (6) whether and to what extent the district court considered the alleged misrepresentations of Nall when the district court denied Petitioner's motion to proceed pro se.