John Galatolo v. United States , 394 F. App'x 670 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 30, 2010
No. 09-14269 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 08-22615-CV-MGC,
89-00362-CR-MGC-1
JOHN GALATOLO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 30, 2010)
Before EDMONDSON, BLACK and MARTIN, Circuit Judges.
PER CURIAM:
John Galatolo, a federal prisoner, appeals pro se the district court’s order
denying his motion seeking relief from the district court’s order denying his
28 U.S.C. § 2255 motion to vacate or correct sentence. Galatolo claims the district
court erred by construing his motion solely as a successive § 2255 motion. He
contends his motion should instead be construed as a motion under Federal Rule of
Civil Procedure 60(d)(3) alleging that the Government committed fraud on the
court in his trial and original § 2255 proceedings by withholding exculpatory
information and later falsely representing that it did not commit any violations
under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
We review de novo the district court’s dismissal of a § 2255 motion as
second or successive. McIver v. United States, 307 F.3d 1327, 1329 (11th Cir.
2002). We review for abuse of discretion the district court’s denial of a Rule 60
motion alleging fraud. Waddell v. Henry Cnty. Sheriff’s Office, 329 F.3d 1300,
1309 (11th Cir. 2003).
Rule 60(b) permits a litigant to move for relief from an otherwise final
judgment for a number of reasons, including “fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party.”
Fed. R. Civ. P. 60(b)(3). Such motions are subject to a one-year statute of
limitations. Fed. R. Civ. P. 60(c)(1). However, under recently-enacted Rule 60(d),
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no limitations period diminishes “a court’s power to: (1) entertain an independent
action to relieve a party from a judgment, order, or proceeding; [or] . . . (3) set
aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d).
When a pro se plaintiff brings a motion under Rule 60, the district court may
appropriately construe it as a § 2255 motion, and, if applicable, treat it as an
unauthorized second or successive motion. See Williams v. Chatman, 510 F.3d
1290, 1293-95 (11th Cir. 2007). If construed as a second or successive motion, the
district court lacks subject-matter jurisdiction. Id. at 1295.
In Gonzalez v. Crosby, the Supreme Court provided guidance as to how
prisoner claims under Rule 60 should be construed. 545 U.S. 524, 531-32, 125 S.
Ct. 2641, 2647-48 (2005).1 If the motion seeks to add a new ground for relief from
the underlying judgment of conviction, or otherwise attacks the district court’s
resolution of any original § 2255 claims on the merits, then the court should
construe the Rule 60 action as a second or successive § 2255 motion and dismiss it
accordingly. Id. By contrast, “when a Rule 60(b) motion attacks, not the
substance of the federal court’s resolution of a claim on the merits, but some defect
in the integrity of the federal habeas proceedings,” courts should not treat the Rule
1
Gonzalez addressed this issue in the context of a 28 U.S.C. § 2254 petition for habeas
corpus. However, we recognize that “the principles developed in habeas cases also apply to § 2255
motions.” Gay v. United States, 816 F.2d 614, 616 n.1 (11th Cir. 1987).
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60 action as a successive § 2255 motion. Id. at 532-33; 125 S. Ct. at 2648. Such
actions can “be ruled upon by the District Court without precertification.” Id. at
538, 125 S. Ct. at 2651. The Gonzalez Court specifically identified fraud on the
federal habeas court as an example of one such permissible Rule 60 claim. Id. at
532 n.5, 125 S. Ct. at 2648.
When a Rule 60 motion is construed as an independent action alleging fraud
on the court, the movant must establish by clear and convincing evidence, among
other things, “fraud, accident, or mistake which prevented the defendant in the
judgment from obtaining the benefit of his defense.” Travelers Indem. Co. v.
Gore, 761 F.2d 1549, 1551 (11th Cir. 1985). “[O]nly the most egregious
misconduct, such as bribery of a judge or members of a jury, or the fabrication of
evidence by a party in which an attorney is implicated, will constitute a fraud on
the court.” Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir. 1978). An
action for fraud on the court should be available only to “prevent a grave
miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47, 118 S. Ct.
1862, 1868 (1998). Further, the movant must show an “unconscionable plan or
scheme” to improperly influence the court’s decision. Rozier, 573 F.2d at 1338.
“Conclusory averments of the existence of fraud made on information and belief
and unaccompanied by a statement of clear and convincing probative facts which
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support such belief do not serve to raise the issue of the existence of fraud.”
Booker v. Dugger, 825 F.2d 281, 284-85 (11th Cir. 1987) (quotation omitted).
The district court did not construe Galatolo’s pleading solely as a second or
successive § 2255 motion, and accordingly did not err in this respect. Rather, by
adopting the Magistrate’s Report and Recommendation (R&R) without limitation,
the court adopted the reasoning of the R&R, which construed his claims as second
or successive only to the extent they attacked his underlying convictions and
sentences and denied his claims as meritless to the extent they alleged fraud on the
original § 2255 court.2
The district court also did not abuse its discretion by holding that Galatolo
did not properly allege conduct sufficient to constitute fraud on the court. “Brady
v. Maryland has no application in the postconviction context,” Cunningham v.
Dist. Attorney’s Office for Escambia Ctny., 592 F.3d 1237, 1260 (11th Cir. 2010),
and thus Galatolo’s allegations of Brady violations that occurred during the § 2255
proceedings, even if true, would not be sufficient to establish fraud on the court.
Moreover, Galatolo has failed to elaborate, beyond his conclusory allegation, how
2
When the district court adopts a magistrate’s R&R, it adopts the reasoning of the R&R to
the extent that it is not explicitly rejected. See, e.g., Ellinger v. United States, 470 F.3d 1325, 1334
n.8 (11th Cir. 2006) (holding that by adopting an R&R, the district court implicitly adopted a
particular conclusion of the magistrate); Machetti v. Linahan, 679 F.2d 236, 241 (11th Cir. 1982)
(same).
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the Government could commit fraud on the court in his § 2255 proceedings merely
by asserting that he could not prove the elements necessary to establish that the
Government had committed Brady violations prior to his trial. Galatolo also has
failed to provide clear and convincing probative facts indicating that the
Government had an unconscionable scheme to improperly influence the court. The
district court therefore did not abuse its discretion by finding that allowing the
order denying his § 2255 motion to stand would not constitute a grave miscarriage
of justice. Accordingly, the district court appropriately disposed of Galatolo’s
action.
AFFIRMED.
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