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[DO NOT PUBLISH]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: Case: 17-10295 Date Filed: 03/27/2018 Page: 2 of 6
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of Corr., 576 F. App’x 940 (11th Cir. 2014) (unpublished).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
2 Case: 17-10295 Date Filed: 03/27/2018 Page: 3 of 6
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). 3 Case: 17-10295 Date Filed: 03/27/2018 Page: 4 of 6
(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
4 Case: 17-10295 Date Filed: 03/27/2018 Page: 5 of 6
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
Free access — add to your briefcase to read the full text and ask questions with AI
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: Case: 17-10295 Date Filed: 03/27/2018 Page: 2 of 6
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
2 Case: 17-10295 Date Filed: 03/27/2018 Page: 3 of 6
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). 3 Case: 17-10295 Date Filed: 03/27/2018 Page: 4 of 6
(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
4 Case: 17-10295 Date Filed: 03/27/2018 Page: 5 of 6
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).
5 Case: 17-10295 Date Filed: 03/27/2018 Page: 6 of 6
“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.