Calvin Solomon v. United States , 300 F. App'x 857 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 26, 2008
No. 07-14117 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 98-00256-CV-J-20
95-00007-CR-J-2
CALVIN SOLOMON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 26, 2008)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Calvin Solomon, a Florida prisoner proceeding pro se, appeals the
district court’s dismissal of his motion titled “Request for Correction of Clear Error
for the Court’s Determination That His [28 U.S.C.] § 2255 Motion was Filed
Untimely, Request for Equitable Tolling and Adjudication on the Merits of Claims
Presented,” as a successive § 2255 motion. He argues that he only sought to correct
the district court’s error in determining that his initial § 2255 motion, which the
district court denied in 1998, was untimely, and he also sought consideration of
whether he had adequately alleged excusable neglect to overcome the time-bar. He
argues that his motion was not a successive § 2255 motion and that he established
his entitlement to equitable tolling. We granted a certificate of appealability on the
following issue: “Whether the district court erred by treating Solomon’s ‘Request
for Correction of Clear Error for the Court’s Determination That His [28 U.S.C.]
§ 2255 Motion was Filed Untimely, Request for Equitable Tolling and
Adjudication on the Merits of Claims Presented,’ as an impermissibly successive
§ 2255 motion to vacate pursuant to Gonzalez v. Crosby, 545 U.S. 524, 530-33,
125 S. Ct. 2641, 2647-48, 162 L. Ed. 2d 480 (2005)?”
We review de novo a district court’s determination that a motion under Rule
60(b) was a second or successive habeas petition. See Zakrzewski v. McDonough,
490 F.3d 1264, 1267 (11th Cir. 2007) (§ 2254 petition). Generally, principles
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developed in § 2254 cases also apply to § 2255 motions. Gay v. United States, 816
F.2d 614, 616 n.1 (11th Cir. 1987). “Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
We “may affirm on any ground supported by the record.” Bircoll v. Miami-Dade
County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).
Rule 60 allows a party to request relief from a final judgment for any reason
that justifies relief, but, at the latest, the motion must be made within a reasonable
time. Fed.R.Civ.P. 60(b)(6), (c)(1). When determining if a motion was made
“within a reasonable time,” a court should consider the circumstances of the case,
including whether the parties were prejudiced by the delay and whether the movant
has presented a good reason for failing to take action sooner. BUC Int’l Corp. v.
International Yacht Council Ltd., 517 F.3d 1271, 1275, 1276 (11th Cir. 2008)
(holding that a seven-month delay in filing a Rule 60(b) motion was reasonable
where the party had difficulty discovering the terms of the confidential settlement
that underlay the rationale for seeking Rule 60(b) relief and also had informed the
district court of its intention to file a Rule 60(b) motion within two months of
dismissal of the case). In the context of motions under Rule 60, a party’s label is
not binding on the court, and it may discard an inappropriate label to render a
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decision based on the motion’s substance where the interests of justice warrant.
Smith v. United States Parole Comm’n, 721 F.2d 346, 348 (11th Cir. 1983).
Rule 60(b) motions challenging the denial of habeas relief are subject to the
restrictions on second or successive habeas petitions if the prisoner is attempting to
either: (1) raise a new ground for relief, or (2) attack a federal court’s previous
resolution of a claim on the merits. Gonzalez v. Crosby, 545 U.S. at 530-32, 125 S.
Ct. at 2646 n.3, 2647-48. Rule 60(b) may, however, be used to assert that a federal
court’s previous ruling precluding a merits determination, such as a statute-of-
limitations bar, was in error. Id. at 532, 125 S. Ct. at 2648 n.4.
Although not titled a Rule 60(b) motion, we conclude from the record that
Solomon’s motion was a proper request under Rule 60(b) because he was
requesting relief from the § 2255 judgment. We also conclude that the district
court erred in determining that Solomon’s reconsideration motion was a successive
§ 2255 motion as Solomon did not raise a new ground for relief or attack the merits
of the previous decision. By waiting nine years, however, Solomon failed to file
his motion for relief within a reasonable time, and he did not provide any
explanation for the delay. Accordingly, we affirm the district court’s judgment of
dismissal.
AFFIRMED.
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