Larry Barber v. Department of Corrections, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10056
Non-Argument Calendar
____________________
LARRY JAMES BARBER,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:13-cv-21882-CMA
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2 Opinion of the Court 23-10056
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Before R OSENBAUM, G RANT , and ANDERSON , Circuit Judges.
PER CURIAM:
Larry James Barber, pro se, appeals the order denying his
Federal Rule of Civil Procedure (“Rule”) 60(b) motion, regarding
dismissal of his 28 U.S.C. § 2254 habeas petition as successive. He
argues that the district court abused its discretion by denying his
Rule 60(b) motion to reopen his judgment. He contends that
newly discovered evidence shows that a conflict of interest pre-
vented his appellate attorney from arguing that the trial court erred
by not instructing the jury on the lesser included offense of robbery
with a weapon. He also contends that, but for this error, no rea-
sonable jury would have found him guilty of robbery with a fire-
arm.
We review the district court’s denial of a Rule 60(b) motion
for an abuse of discretion. Lambrix v. Sec’y, Fla. Dep’t of Corr., 851
F.3d 1158, 1170 (11th Cir. 2017).
Rule 60(b) allows a party to seek relief or reopen his case
based on the following limited circumstances: (1) mistake or excus-
able neglect; (2) newly discovered evidence; (3) fraud; (4) the judg-
ment is void; (5) the judgment has been discharged; or (6) “any
other reason that justifies relief.” Fed. R. Civ. P. 60(b). A habeas
petitioner seeking relief for “any other reason” under subsection
(b)(6) must demonstrate “extraordinary circumstances” justifying
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23-10056 Opinion of the Court 3
the reopening of the final judgment. Gonzalez v. Crosby, 545 U.S.
524, 535 (2005) (citations omitted).
The Habeas Corpus Act of 1867 is codified at 28 U.S.C.
§ 2241, and the requirements of § 2254 apply to all state prisoners
in custody pursuant to the judgment of a state court, even if the
petition is labeled as a § 2241 petition. See Medberry v. Crosby, 351
F.3d 1049, 1055, 1060 (11th Cir. 2003). We decided in Medberry that
a petitioner may not avoid the requirements of § 2254 simply by
labeling the petition as arising under § 2241. Id. at 1060. Under 28
U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive application
permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order author-
izing the district court to consider the application.” Finally, appeals
filed after April 24, 1996, are governed by post-AEDPA law as to
appellate procedure, regardless of when the case was originally
filed in the district court. Slack v. McDaniel, 529 U.S. 473, 481-82
(2000).
Here, the district court did not abuse its discretion by deny-
ing Barber’s Rule 60(b) motion. First, Barber has never disputed
that, prior to his 2013 habeas petition, he had filed at least six § 2254
petitions. Second, although Barber filed a § 2241 habeas petition,
the court did not abuse its discretion by construing it as a § 2254
petition. See Medberry, 351 F.3d at 1060. Moreover, Barber’s 2013
petition was unauthorized because he failed to obtain an order
from this Court authorizing the district court to consider it. See 28
U.S.C. § 2244(b)(3)(A). Thus, the district court did not deny him
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4 Opinion of the Court 23-10056
due process when it dismissed his petition, because it was improp-
erly filed under § 2241, rather than § 2254. See Medberry, 351 F.3d
at 1060.
AFFIRMED.
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