Case: 15-15342   Date Filed: 02/02/2017   Page: 1 of 5


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 15-15342
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 6:09-cr-00082-JA-DAB-1

SEAN PETERS,

                                                            Petitioner-Appellant,

                                    versus

UNITED STATES OF AMERICA,

                                                           Respondent-Appellee.

                         ________________________

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

                              (February 2, 2017)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Sean Peters appeals the dismissal of his pro se Fed. R. Civ. P. 60(b) motion

construed as a second or successive 28 U.S.C. § 2255 motion to vacate his

sentence, following his conviction for possession of child pornography.      His
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original § 2255 motion raised, among other things, a claim that his counsel was

ineffective at his trial for failing to argue that Peters had been compelled to

respond to questioning under threat of employment sanctions, in violation of

Garrity v. New Jersey, 385 U.S. 493 (1967) (holding that a public employee may

not be coerced into surrendering his Fifth Amendment privilege by threat of being

fired or subjected to other sanctions). The district court denied Peters’s § 2255

motion, and concluded that “assuming [Peters] was compelled to make statements,

. . . he did not make any incriminating statements, and regardless, the evidence

would have been found during the search of [Peters’s] residence.” In his Rule

60(b) motion, Peters again raised the Garrity claim in the district court, and noted

that the government had misrepresented facts and law about the claim to the

district court. The district court dismissed Peters’s Rule 60(b) motion for lack of

jurisdiction, holding that the motion simply re-argued his claim, and that he needed

permission from this Court to file a second or successive § 2255 motion. On

appeal, Peters briefly argues that his Rule 60(b) motion was proper, and goes on to

argue the merits of his Garrity claim. After thorough review, we affirm.

      We review de novo a district court’s dismissal of a § 2255 motion as second

or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir. 2002).

Before one may file a second or successive § 2255 motion in the district court, one

must obtain an order from the court of appeals authorizing the district court to


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consider the motion. 28 U.S.C. § 2255(h). Without authorization from this Court,

the district court lacks jurisdiction to consider a second or successive habeas

petition. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). We

generally do not consider arguments raised for the first time in a reply brief.

United States v. House, 684 F.3d 1173, 1210 (11th Cir. 2012).

      A Rule 60(b) motion from the denial of a § 2255 motion is considered a

successive motion if it seeks to present a new ground for relief from a judgment of

conviction or if it attacks the federal court’s previous resolution of a claim on the

merits. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (addressing a §

2254 habeas petition). Conversely, a Rule 60(b) motion is permissible if “neither

the motion itself nor the federal judgment from which it seeks relief substantively

addresses federal grounds for setting aside the movant’s . . . conviction.” Id. at

533. Thus, a Rule 60(b) motion would be proper, for example, if it: (1) asserts that

a federal court’s previous ruling that precluded a merits determination was in error;

or (2) attacks a defect in the federal proceeding’s integrity, such as a fraud upon

the court. See id. at 532-35 n.4-5.

      We’ve said that, when a federal habeas court already has reached and

resolved the merits of a habeas petitioner’s earlier asserted claims, it looks at a

Rule 60(b) motion challenging that decision with particular skepticism. Franqui v.

Florida, 638 F.3d 1368, 1371 (11th Cir. 2011) (addressing a § 2254 habeas


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petition). Where the federal habeas court has already denied the habeas petition on

the merits, an attack based on habeas counsel’s omission of a claim in an original

habeas petition ordinarily does not go to the integrity of the proceedings, but in

effect asks for a second chance to have the merits determined favorably. Id. at

1372. We explained in Franqui that it is a serious problem for a court to have

worked on a habeas petition and decided its merit, only to have a petitioner later

come in and say, “Wait, there’s more.” Id. at 1373.

       In this case, the district court correctly determined that Peters’s Rule 60(b)

motion was a successive § 2255 motion.1 Peters previously alleged in his original

§ 2255 motion that his trial counsel was ineffective for failing to move to suppress

evidence based on his compelled statements during the administrative and criminal

proceedings. The district court considered, and rejected, those arguments. Peters’s

Rule 60(b) motion again challenged the use of his compelled statements. As for

Peters’s claim that his Rule 60(b) motion was alerting the district court about a

defect in the proceedings that properly could have been addressed in a Rule 60(b)

motion, we are unpersuaded. As the record reveals, his Rule 60(b) motion raised a

       1
         Generally, a COA is required to appeal the denial of a Rule 60(b) motion in a § 2255
proceeding. Jackson v. Crosby, 437 F.3d 1290, 1294-95 (11th Cir. 2006). However, a COA is
not needed for this Court to review the district court’s dismissal of a successive § 2255 for lack
of subject matter jurisdiction because that kind of dismissal does not constitute a final order in a
habeas corpus proceeding for purposes of 28 U.S.C. § 2253(c); rather, it constitutes a final
decision pursuant to 28 U.S.C. § 1291. Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir.
2004). Here, a COA is not needed for us to review the district court’s order because the district
court determined that Peters’s motion was an impermissible successive § 2255 motion and
dismissed it for lack of subject matter jurisdiction. See id.
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routine, merits-based argument concerning the evidence that was presented at his

trial and in his § 2255 proceedings -- not the type of claim that could be addressed

in a Rule 60(b) motion. Thus, because Peters’s Rule 60(b) motion attacked a

previous resolution of a claim on the merits, the district court correctly construed

the Rule 60(b) motion as a successive § 2255 motion. See Gonzalez, 545 U.S. at

531-32.

      Moreover, before Peters could file a second or successive § 2255 motion in

the district court, he needed to obtain an order from this Court authorizing the

district court to consider the motion. 28 U.S.C. § 2255(h). Peters does not claim

that he received authorization. Therefore, the district court correctly dismissed

Peters’s motion as successive, because without authorization, the district court

lacked jurisdiction to consider Peters’s second or successive motion. See Farris,
333 F.3d at 1216. And while Peters argues in his reply brief that his motion

attacked a new judgment under Magwood v. Patterson, 561 U.S. 320 (2010), we

generally do not consider issues raised for the first time in a reply brief. House,
684 F.3d at 1210. Accordingly, we affirm the district court’s dismissal of Peters’s

Rule 60(b) motion.

      AFFIRMED.




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