Najam Azmat v. USA, No. 20-14262 (11th Cir. 2022)

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USCA11 Case: 20-14262 Date Filed: 09/28/2022 Page: 1 of 4 [DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 20-14262 Non-Argument Calendar ____________________ NAJAM AZMAT, a.k.a. Dr. Azmat, Petitioner-Appellant, versus UNITED STATES OF AMERICA, Respondent-Appellee. ____________________ Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 4:17-cv-00086-WTM-BKE ____________________ USCA11 Case: 20-14262 2 Date Filed: 09/28/2022 Opinion of the Court Page: 2 of 4 20-14262 Before ROSENBAUM, GRANT and DUBINA, Circuit Judges. PER CURIAM: Appellant Najam Azmat, proceeding pro se, appeals the district court’s order dismissing in part, as an impermissible successive 28 U.S.C. § 2255 motion, his Federal Rule of Civil Procedure 60(b) motion. On appeal, Azmat argues that the district court erred in construing his Rule 60(b) motion in part as a successive § 2255 motion and dismissing it for lack of jurisdiction because Azmat had not received authorization from us to file a successive § 2255 motion. After reviewing the record and reading the parties’ briefs, we affirm the district court’s order of dismissal. I. While we typically review the district court’s denial of a Rule 60(b) motion for an abuse of discretion, we review the district court’s legal conclusions in a § 2255 proceeding de novo and the underlying facts for clear error. Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003). As a preliminary matter, although a certificate of appealability (COA) generally is required to appeal a final order in a proceeding under § 2255, see 28 U.S.C. §-2253(c)(1)(B), we have held that the dismissal of a successive habeas petition for lack of subject-matter jurisdiction does not constitute a “final order in a habeas corpus proceeding,” for purposes of § 2253(c). Hubbard v. Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004). Consequently, our jurisdiction to review the dismissal of USCA11 Case: 20-14262 20-14262 Date Filed: 09/28/2022 Opinion of the Court Page: 3 of 4 3 Azmat’s second Rule 60(b) motion, to the extent that it was construed as a successive § 2255 motion, arises under 28 U.S.C. § 1291, and no COA is required. See Hubbard, 379 F.3d at 1247. II. We construe documents filed by pro se litigants liberally and hold them to less stringent standards than documents drafted by attorneys. Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976). When a pro se plaintiff brings a motion under Rule 60(b), the district court may construe it as a § 2255 motion, and, if applicable, treat it as an unauthorized second or successive motion. Farris, 333 F.3d at 1216. Specifically, Rule 60(b) motions are subject to the restrictions on successive habeas petitions if the prisoner is attempting to raise a new ground for relief or to attack a federal court’s previous resolution of a claim on the merits, even if “couched in the language of a true Rule 60(b) motion.” Gonzalez v. Crosby, 545 U.S. 524, 531-32, 125 S. Ct. 2641, 2647-48 (2005); Farris, 333 F.3d at 1216. Before a prisoner may file a second or successive § 2255 motion in a district court, he first must obtain an order from the court of appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Without such authorization, the district court lacks jurisdiction to consider a second or successive § 2255 motion. Farris, 333 F.3d at 1216. Further, “until a COA has been issued[,] federal courts of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003). USCA11 Case: 20-14262 4 Date Filed: 09/28/2022 Opinion of the Court Page: 4 of 4 20-14262 III. Here, even when construed liberally, Azmat’s arguments in his brief do not discuss the sole issue on appeal concerning the district court’s determination that Azmat’s Rule 60(b) motion is a successive § 2255 motion. Rather, Azmat raises several claims that are not within the scope of this appeal. We could treat the sole issue on appeal as abandoned, but considering Azmat’s pro se status, we still evaluate the district court’s successive determination. We do not have jurisdiction, however, over his claims concerning the denial of his Rule 60(b) motion on the merits because he did not receive a COA as to these issues. See Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039. As to the merits of the successive determination, we conclude that the district court did not err in construing Azmat’s Rule 60(b) motion in part as a successive § 2255 motion and dismissing it for lack of jurisdiction. The record indicates that Azmat was attempting to relitigate his claims, had filed a prior § 2255 motion that the district court denied, and failed to seek permission from us to file a successive § 2255 motion. Accordingly, based on the aforementioned reasons, we affirm the district court’s order dismissing Azmat’s Rule 60(b) motion. AFFIRMED.

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