Nicholas Wukoson v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10222
Non-Argument Calendar
____________________
NICHOLAS WUKOSON,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-81547-DMM
____________________
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2 Opinion of the Court 23-10222
Before J ILL PRYOR , BRANCH, and ABUDU, Circuit Judges.
PER CURIAM:
Nicholas Wukoson, a pro se federal prisoner, appeals follow-
ing the district court’s: (i) dismissal, in part, of his Fed. R. Civ. P.
60(b) motion as an impermissible successive 28 U.S.C. § 2255 mo-
tion to vacate; (ii) its denial, in part, of that motion for failure to
show a defect in the disposition of his earlier amended § 2255 mo-
tion; and (iii) its order denying his motion for recusal. He also
moves this Court for a certificate of appealability (“COA”). After
review, we deny Wukoson’s motion for a COA, dismiss in part Wu-
koson’s appeal against the district court’s denial of his Rule 60(b)
motion for lack of jurisdiction, and affirm in part the district court’s
denial of Wukoson’s motion for recusal.
I. FACTUAL BACKGROUND & PROCEDURAL
HISTORY
In March 2019, Wukoson pled guilty to six counts of posses-
sion of child pornography involving a prepubescent minor, in vio-
lation of 18 U.S.C. §§ 2252(a)(4)(B)(2), (b)(2), and one count of wit-
ness tampering, in violation of 18 U.S.C. § 1512(c)(2). After the dis-
trict court sentenced him, it entered a final judgment in his case in
October 2019. He appealed, and we later affirmed. United States v.
Wukoson, 798 F. App’x 551 (11th Cir. 2020) (unpublished).
In 2020, he filed a 28 U.S.C. § 2255 motion to vacate, in
which he raised multiple ineffective-assistance-of-counsel claims.
The district court denied the motion on the merits in September
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23-10222 Opinion of the Court 3
2021. Wukoson appealed the denial, moving this Court for a COA,
which we declined to issue.
In November 2022, over a year later, Wukoson, pro se, filed
a motion for relief from the district court’s September 2021 judg-
ment under Fed. R. Civ. P. 60(b), arguing that the district court
failed to address specific ineffective-assistance-of-counsel claims in
his § 2255 motion, in violation of Clisby v. Jones, 960 F.2d 925, 936
(11th Cir. 1992).1 He made clear that he was not attempting to raise
new claims or challenge the district court’s merits analysis on the
claims that had been resolved, and that he was only challenging
those claims he believed the district court failed to analyze.
On November 21, 2022, the district court denied Wukoson’s
Rule 60(b) motion on the merits, finding that it had already
properly considered each of the claims Wukoson initially raised in
his § 2255 motion. The court alternatively concluded that, to the
extent Wukoson attempted to raise new claims or arguments, the
Rule 60(b) motion qualified as an impermissible successive § 2255
motion. Therefore, it denied the motion on the merits and de-
clined to issue a COA, while alternatively dismissing the motion
1 In Clisby, we held that district courts must resolve all claims raised in a habeas
petition, regardless of whether relief is granted or denied, and explained we
will vacate the district court’s order denying relief and remand for considera-
tion of the unaddressed claims should the district court fails to do so. 960 F.2d
at 938; see also Rhode v. United States, 583 F.3d 1289, 1291 (applying Clisby to
§ 2255 motions).
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4 Opinion of the Court 23-10222
for lack of jurisdiction as an impermissible successive § 2255 mo-
tion.
Meanwhile, on November 9, 2023, Wukoson signed and
dated a motion for recusal, asking the district court judge assigned
to his case to recuse himself from considering his Rule 60(b) mo-
tion. He argued that the judge failed to promptly rule on a separate
motion he filed in his original criminal case, which demonstrated
the judge’s inability to act impartially. The district court, however,
did not docket this motion until November 22, 2023, the day after
the district court denied Wukoson’s Rule 60(b) motion. The dis-
trict court ultimately denied Wukoson’s recusal motion, finding
that Wukoson’s allegation did not support recusal, and acknowl-
edged that the court had already ruled on the Rule 60(b) motion in
any event.
Wukoson then filed a Fed. R. Civ. P. 59 motion, asking the
district court to reconsider its order denying his motion for recusal.
He also filed a Rule 60(b) motion for reconsideration of the district
court’s denial of his initial Rule 60(b) motion. The district court
denied these motions and declined to issue a COA. Wukoson now
appeals.2
2 Before the district court, Wukoson filed a motion for a COA, which the court
construed as a notice of appeal of the orders denying his Rule 60(b) motion,
his motion for recusal, and his motions for reconsideration.
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23-10222 Opinion of the Court 5
II. ANALYSIS
A. The District Court Erred in Finding Wukoson’s Initial
Rule 60(b) Motion Qualified as an Unauthorized Suc-
cessive § 2255 Motion.
Generally, a COA is required to appeal the denial of a
Rule 60(b) motion arising from a § 2255 proceeding. Gonzalez v.
Sec’y, Dep’t of Corr., 366 F.3d 1253, 1263 (11th Cir. 2004). However,
the dismissal of a successive habeas petition for lack of jurisdiction
does not constitute a “final order in a habeas corpus proceeding,”
for purposes of 28 U.S.C. § 2253(c). Hubbard v. Campbell, 379 F.3d
1245, 1247 (11th Cir. 2004). Consequently, no COA is required to
review the dismissal of a Rule 60(b) motion that was construed as
a second or successive § 2255 motion. Id. In such instance, we re-
view de novo whether a motion is second or successive. Stewart v.
United States, 646 F.3d 856, 858 (11th Cir. 2011).
Rule 60(b) motions should be considered impermissible sec-
ond or successive § 2255 motions if the movant is attempting to
(1) raise a new ground for relief, or (2) attack a federal court’s pre-
vious disposition of a claim on the merits. Williams v. Chatman, 510
F.3d 1290, 1293-94 (11th Cir. 2007). Conversely, a Rule 60(b) motion
that merely attacks a defect in the integrity of the federal habeas
proceeding, such as an allegation that the district court failed to
reach the merits of a movant’s claims, should not be deemed sec-
ond or successive, and the district court may rule on such a motion.
Gonzaelz v. Crosby, 545 U.S. 524, 532, 538 (2005); see also Santa v. Un-
tied States, 492 F. App’x 949, 950-51 (11th Cir. 2012) (unpublished)
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6 Opinion of the Court 23-10222
(relying on Gonzalez and holding that the movant’s Rule 60(b) mo-
tion was not a second or successive § 2255 motion because the mo-
tion did not attack the district court’s merits determination and in-
stead only asserted that the district court failed to consider all the
claims he raised in his § 2255 motion).
On appeal, Wukoson contends the district court erred in
construing his initial Rule 60(b) motion as an unauthorized second
or successive § 2255 motion. We agree.
Wukoson’s initial Rule 60(b) motion focused on his belief
that the district court committed a procedural error by failing to
consider the merits of a few distinct ineffective-assistance-of-coun-
sel claims. Thus, he was only attacking the integrity of his § 2255
proceeding. He made clear that he did not intend to raise any new
claims or argue the underlying merits of the claims the district
court already resolved in his § 2255 proceedings. As such, the dis-
trict court erred in ruling that Wukoson’s initial Rule 60(b) motion
was second or successive. Nevertheless, because the district court
performed an alternative merits analysis, and for the reasons out-
lined below, this error does not warrant reversal.
B. We Decline to Issue a COA to Review the Merits of the
District Court’s Denial of the Initial Rule 60(b) Motion,
and We Lack Jurisdiction to Review the Merits.
When appropriate, we will review a district court’s denial of
a Rule 60(b) motion for an abuse of discretion. Rice v. Ford Motor
Co., 88 F.3d 914, 918-19 (11th Cir. 1996). Rule 60(b) allows a party
to seek relief or reopen his case in the following limited
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23-10222 Opinion of the Court 7
circumstances: (1) mistake or excusable neglect; (2) newly discov-
ered evidence; (3) fraud; (4) the judgment is void; (5) the judgment
has been discharged; and/or (6) “any other reason that justifies re-
lief.” Fed. R. Civ. P. 60(b). The appeal of a Rule 60(b) motion is
limited to a determination of whether the district court abused its
discretion in denying the motion, and it shall not extend to the va-
lidity of the underlying judgment. Rice, 88 F.3d at 918-19. The ap-
pellant’s burden on appeal from the denial of a Rule 60(b) motion
is heavy because the appellant must demonstrate a justification so
compelling that it requires the district court to vacate its order.
Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006).
To obtain a COA, the movant must establish that “reasona-
ble jurists would find the district court’s assessment of the consti-
tutional claims debatable or wrong” or that the issues “deserve en-
couragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). Importantly, this
Court lacks jurisdiction to rule on the merits of an appeal from a
habeas petitioner when a COA has not been issued. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003).
Because Wukoson’s Rule 60(b) motion related to his initial
§ 2255 proceeding, he was required to obtain a COA from the dis-
trict court or this Court. Gonzalez, 366 F.3d 1263. The district court
declined to issue a COA on the matter. In reviewing Wukoson’s
notice of appeal, he has asked this Court to issue a COA in order
to appeal the district court’s denial of his initial Rule 60(b) motion,
arguing that the district court abused its discretion because the
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8 Opinion of the Court 23-10222
district court committed Clisby errors when analyzing his § 2255
motion.
We decline to issue a COA on this issue because reasonable
jurists would not debate the district court’s denial of Wukoson’s
Rule 60(b) motion. Slack, 529 U.S. at 484. Wukoson did not iden-
tify any mistake, newly discovered evidence, fraud, or other valid
circumstance that would authorize relief. Fed. R. Civ. P. 60(b).
Moreover, Wukoson merely re-raised arguments that the district
court already had considered when it denied his amended § 2255
motion, and no Clisby error occurred. Finally, we denied Wukoson
a COA in 2022 when he appealed from the denial of his amended
§ 2255 motion, and the reasons supporting that ruling remain un-
changed. Accordingly, we deny Wukoson’s request for a COA to
appeal the district court’s denial of his initial Rule 60(b) motion. As
such, we lack jurisdiction to consider the merits of the district
court’s denial of that motion and dismiss, in part, Wukoson’s ap-
peal. Miller-El, 537 U.S. at 336.
C. The District Court Did Not Abuse its Discretion in
Denying Wukoson’s Recusal Motion.
We will review for an abuse of discretion a district court’s
denial of a recusal motion. Loranger v. Stierheim, 10 F.3d 776, 779
(11th Cir. 1994). A district court lacks jurisdiction to consider a mo-
tion to recuse if it is filed when no case is pending before the district
court. United States v. Elso, 571 F.3d 1163, 1166 (11th Cir. 2009).
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23-10222 Opinion of the Court 9
Generally, under the “prison mailbox rule,” we consider a
pro se prisoner to have filed a court document on the date the doc-
ument is delivered to prison officials for mailing “on the date it is
delivered to prison authorities for mailing.” See Jeffries v. United
States, 748 F.3d 1310, 1314 (11th Cir. 2014) (internal quotation
marks omitted). “Absent evidence to the contrary, we assume that
a prisoner delivered a filing to prison authorities on the date that he
signed it.” Id.
A judge should disqualify himself from any proceeding in
which his impartiality might reasonably be questioned “or if he has
a personal bias against a party.” Giles v. Garwood, 853 F.2d 876, 878
(11th Cir. 1988); see also 28 U.S.C. § 455(a), (b)(1). When reviewing
for impropriety, the allegations must be reviewed to determine
whether an objective, disinterested layperson, who is fully in-
formed of all the facts underlying the allegations, “would entertain
a significant doubt about the judge’s impartiality.” United States v.
Patti, 337 F.3d 1371, 1321 (11th Cir. 2003) (internal quotation marks
omitted). When reviewing for bias, “[t]he bias must arise from an
extrajudicial source, except in the rare case where pervasive bias
and prejudice [are] shown by otherwise judicial conduct.” Giles,
853 F.2d at 878 (internal quotation marks omitted). A judge is not
required to “recuse himself based on unsupported, irrational, or
tenuous allegations.” Id.
On appeal, Wukoson contends the district court abused its
discretion when it denied his motion for recusal. In response, the
government argues that the district court lacked jurisdiction to
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10 Opinion of the Court 23-10222
consider Wukoson’s recusal motion and, alternatively, that the dis-
trict court did not abuse its discretion in denying the motion.
As an initial matter, the district court had jurisdiction to con-
sider Wukoson’s motion for recusal. Under the prison mailbox
rule, the motion was deemed filed on November 9, 2022, when
Wukoson signed it, which was well before the court’s November 21
order denying his Rule 60(b) motion. See Jeffries, 748 F.3d at 1314.
Thus, matters were pending at the time Wukoson filed the motion.
However, the district court did not abuse its discretion when
it denied the recusal motion. Wukoson based his motion on the
judge’s alleged delay in ruling on a separate motion in his criminal
case. Even if a delay had occurred in those proceedings, to the ex-
tent it would have occurred within the context of judicial proceed-
ings, it cannot serve as the basis for why the judge should have
recused himself in the instant case absent evidence of pervasive
bias and prejudice which Wukoson failed to show. Giles, 853 F.2d
at 878. None of Wukoson’s allegations would cause an objective,
disinterested lay observer to question the district court judge’s im-
partiality in the instant case. Patti, 337 F.3d at 1321.
III. CONCLUSION
For the reasons set forth above, we DENY Wukoson’s mo-
tion for a COA, DISMISS IN PART Wukoson’s appeal against the
district court’s denial of his Rule 60(b) motion for lack of jurisdic-
tion, and AFFIRM IN PART the district court’s denial of Wu-
koson’s motion for recusal.
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