STRANGE v. DIXON

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
STEVEN A. STRANGE,
Petitioner,
v. 	Case No. 3:92cv30236-MCR/MAF
RICKY D. DIXON, Secretary,
Florida Department of Corrections,
Respondent.
/
REPORT AND RECOMMENDATION
Petitioner Steven A. Strange, a state inmate proceeding pro se, has
filed a Motion to Reopen 28 U.S.C. § 2254 Federal Habeas Corpus Pursuant
to Rule 60(b)(6). 	ECF No. 3. 	The matter was referred to the undersigned
United States Magistrate Judge for report and recommendation pursuant to
28 U.S.C. § 636 and Northern District of Florida Local Rule 72.2(B). 	For the
reasons stated herein, Petitioner’s Rule 60(b)(6) motion (ECF No. 3) should
be denied and this matter should be dismissed for lack of jurisdiction.
Background
In 1989, in case number 87-CF-355, from the First Judicial Circuit
Court, Walton County, a jury convicted Petitioner Steven A. Strange on four
counts: (1) third degree murder with a firearm, a second degree felony; (2)
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robbery, a second degree felony; (3) possession of a firearm during the
commission of a felony, a second degree felony; and (4) hunting without a
license, a misdemeanor. 	ECF No. 1 at 2; Strange v. State, 579 So. 2d 859
(Fla. 1st DCA 1991), review denied, 591 So. 2d 181 (Fla. 1991) (table). 	The
court adjudicated him guilty and sentenced him to thirty (30) years in prison
on Count 1, setting forth the reason for departing from the sentencing
guidelines: 	“The victim of the murder in this case was a uniformed officer of
the Florida Game and Fresh Water Fish Commission engaged in the
performance of his sworn duty.” 	Strange, 579 So. 2d at 868. 	The court
also sentenced him to five (5) years in prison on Count 2, and sixty (60) days’
incarceration on Count 3. 	ECF No. 2 at 2; see pubapps.fdc.myflorida.com/
offenderSearch/detail. 	Strange appealed his conviction and sentence and,
in a written opinion released May 17, 1991, the First District Court of Appeal
affirmed the case. 	Strange, 579 So. 2d at 859-60. 	Strange unsuccessfully
sought postconviction relief in the state courts.
In 1992, Strange filed a federal habeas corpus petition in the Middle
District of Florida, which was transferred to this Court and assigned case
number 3:92cv30236-RV. 	See ECF No. 4 at 2. 	On August 26, 1993, the
magistrate judge entered a Report and Recommendation that the petition be
denied. 	Id. 	The district judge adopted the Report and Recommendation
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on October 12, 1993, and the court entered judgment denying the petition
for writ of habeas corpus. 	Id. 	Strange appealed to the Eleventh Circuit
Court of Appeals and, in March 1995, that court affirmed the case. 	Id. at 3.
From 	information 	on 	the 	website 	for 	the 	Florida 	Department 	of
Corrections (DOC), Strange was in custody from July 7, 1989, until October
31, 2004. 	See pubapps.fdc.myflorida.com/offenderSearch/detail. 	In 2007,
he returned to DOC custody after a state jury trial resulted in his conviction
for attempting to elude a law enforcement officer (Count 1), driving under the
influence (Count 2), and driving while license canceled, suspended, or
revoked (Count 3). 	See id.; Strange v. Sec’y, Dep’t of Corr., No. 4:12cv505-
RV/GRJ, ECF Nos. 27 (Report and Recommendation) and 29 (Order). 	In
that state case, the court sentenced him to thirty (30) years in prison as an
habitual felony offender on Count 1, followed by five (5) years in prison on
Count 2 and sixty (60) days in jail on Count 3. 	See Strange, No. 4:12cv505,
ECF No. 27 at 2. 	Strange appealed to the First DCA, which affirmed the
judgment and sentence. 	See id. 	Strange’s state postconviction motions
did not result in relief. 	See id. at 2-3. 	Thereafter, he filed a federal habeas
corpus petition pursuant to 28 U.S.C. § 2254. 	See id. 	On June 3, 2015,
the magistrate judge entered a Report and Recommendation that habeas
relief be denied. 	Id. 	On June 30, 2015, the district judge adopted the
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Report and Recommendation and the court entered judgment denying relief.
Id. 	ECF 	Nos. 	29-30. 	The 	Eleventh 	Circuit 	denied 	a 	certificate 	of
appealability. 	Id. ECF No. 47; Strange v. Sec’y, Dep’t of Corr., No. 15-
13255 (11th Cir. 2015).
Notably, in that federal habeas case, in February 2026, Petitioner
Strange filed a motion to reopen under Federal Rule of Civil Procedure
60(b)(6). 	Strange, No. 4:12cv505-MW/ZCB, ECF No. 51. 	On February 12,
2026, the magistrate judge entered a Report and Recommendation that the
the Rule 60(b)(6) motion be denied and the matter be dismissed for lack of
jurisdiction as the motion is an unauthorized successive § 2254 petition. 	Id.
ECF No. 53. 	On March 2, 2026, the district judge adopted the Report and
Recommendation, denied the Rule 60(b) motion, and dismissed the matter
for lack of jurisdiction. 	Id. ECF Nos. 55-56.
Analysis
Rule 60(b) allows a party to seek relief or reopen a civil case under
these circumstances: (1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that with due diligence could not have
been discovered in time for a new trial; (3) fraud, misrepresentation, or
misconduct by an opposing party; (4) the judgment is void; (5) the judgment
has been satisfied, released, or discharged; and (6) “any other reason that
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justifies relief.” 	Fed. R. Civ. P. 60(b). 	“Federal Rule of Civil Procedure 60
provides a basis, but only a limited basis, for a party to seek relief from a final
judgment in a habeas case.” 	Williams v. Chatman, 510 F.3d 1290, 1293
(11th Cir. 2007); see Gonzalez v. Crosby, 545 U.S. 524, 528 (2005).
A Rule 60(b) motion cannot be used to circumvent the prohibition on
filing unauthorized successive federal habeas corpus petitions. 	Gonzalez
v. Crosby, 545 U.S. 524, 530-32 (2005). 	“The Supreme Court held in
Gonzalez that a Rule 60(b) motion is to be treated as a successive habeas
petition if it: 	(1) ‘seeks to add a new ground of relief’; or (2) ‘attacks the
federal court’s previous resolution of a claim on the merits.’” 	Williams, 510
F.3d at 1293-94 (quoting Gonzalez, 545 U.S. at 532). 	“Where, however, 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,’ the motion is not a successive habeas petition.” 	Id. at 1294
(quoting Gonzalez, 545 U.S. at 532).
“The Antiterrorisim and Effective Death Penalty Act [(AEDPA)] gives
state prisoners only one opportunity to challenge their sentence in federal
court.” 	Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1328 (11th
Cir. 2017) (en banc). 	“When a Rule 60(b) motion qualifies as a second or
successive habeas petition as defined in Gonzalez, it must comply with the
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requirements for such petitions under the AEDPA.” 	Williams, 510 F.3d at
1294; see 28 U.S.C. § 2244. 	The Eleventh Circuit has explained those
requirements as set forth in Gonzalez and the federal statute:
The AEDPA imposes three basic requirements on successive
habeas 	petitions. 	First, 	“any 	claim 	that 	has 	already 	been
adjudicated 	in 	a 	previous 	petition 	must 	be 	dismissed.”
Gonzalez, 	545 	U.S. 	at 	529-30 	. 	. 	. 	; 	see 	also 	28 	U.S.C.
§ 2244(b)(1). 	Second, any new claim that was not already
adjudicated must be dismissed unless it relies on “a new and
retroactive rule of constitutional law or new facts showing a high
probability of actual innocence.” 	Gonzalez, 545 U.S. at 530
. . . ; see also 28 U.S.C. § 2244(b)(2). Finally, before a district
court can accept a successive habeas petition, “the court of
appeals must determine that it presents a claim not previously
raised that is sufficient to meet § 2244(b)(2)’s new-rule or actual-
innocence provisions.” Gonzalez, 545 U.S. at 530 . . . ; see also
28 U.S.C. § 2244(b)(3).
Williams, 510 F.3d at 1294.
Thus, this Court cannot consider a second or successive § 2254
petition unless the Eleventh Circuit Court of Appeals has authorized its filing.
See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive [habeas
corpus] application . . . is filed in the district court, the applicant shall move
in the appropriate court of appeals for an order authorizing the district court
to consider the application.”); Burton v. Stewart, 549 U.S. 147 (2007) (holding
federal district court lacked jurisdiction to entertain § 2254 petition because
state inmate did not obtain order from Court of Appeals authorizing him to
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file second petition); see also 28 U.S.C. § 2244(b)(2)(B); Rule 9, Rules Gov.
§ 2254 Cases (“Before presenting a second or successive petition, the
petitioner must 	obtain an order from the appropriate court 	of appeals
authorizing the district court to consider the petition as required by 28 U.S.C.
§ 2244(b)(3) and (4).”); Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257,
1260 	(11th 	Cir. 	2009) 	(explaining 	“[t]he 	stringent 	requirements 	that 	a
petitioner must meet before being allowed to assert a 	claim in a second
habeas 	petition 	because 	of 	newly 	discovered 	facts 	about 	events 	that
occurred before the filing of the first petition are contained in § 2244(b)(2)(B)”
and “the proper procedure would be to obtain from [the Eleventh Circuit] an
order authorizing the district court to consider the second or successive
petition”); Jordan v. Sec’y, Dep’t of Corr., 485 F.3d 1351, 1353 (11th Cir.
2007) (explaining Jordan had filed pro se application in Eleventh Circuit
seeking order permitting him to file successive § 2254 petition to raise claim
of actual innocence based on newly discovered evidence and “[a] panel of
this Court found that Jordan had made out a prima facie case under 28
U.S.C. § 2244(b)(2)(B) for filing a second or successive petition in the district
court and entered an order permitting him to do so”). 	“Section 2244(b)(3)(A)
requires a district court to dismiss for lack of jurisdiction a second or
successive petition for a writ of habeas corpus unless the petitioner has
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obtained an order authorizing the district court to consider it.” 	Tompkins,
557 F.3d at 1259.
Here, 	Petitioner Strange’s 	Rule 60(b) 	motion attacks 	the Court’s
previous merits resolution of Ground One of his section 2254 petition. 	See
ECF No. 3 at 3. 	It thus constitutes a successive habeas petition. 	Because
it is a successive habeas petition, this Court does not have jurisdiction to
consider 	Petitioner’s 	arguments 	as 	nothing 	indicates 	he 	has 	received
authorization from the Eleventh Circuit. Therefore, Strange’s Rule 60(b)(6)
motion should be denied and the matter dismissed for lack of jurisdiction.
See, e.g., Burton, 549 U.S. at 152; Fugate, 301 F.3d at 1287.
In addition, from the background information, supra, Petitioner Strange
was released from DOC in 2004 and thereafter committed new offenses,
resulting in charges, a jury trial, conviction, and imposition of a new prison
term. 	Thus, it appears he is not in custody for the judgment and sentence
imposed in case number 87-CF-355. 	Under the AEDPA, a court “shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he
is in custody in violation of the Constitution or laws or treats of the United
States.” 	28 U.S.C. § 2254(a) (emphasis added). 	Similarly, the statute
provides, in setting forth the “[p]ower to grant writ,” that “[t]he writ of habeas
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corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation
of the Constitution or laws or treaties of the United States.” 	28 U.S.C. §
2241(c)(3) (emphasis added); see Maleng v. Cook, 490 U.S. 488, 490
(1989).
“The question of whether a person is ‘in custody’ within the meaning of
28 U.S.C. § 2241(c)(3) is one of subject-matter jurisdiction.” 	Howard v.
Warden, 776 F.3d 772, 775 (11th Cir. 2015). 	The U.S. Supreme Court has
explained, 	“While 	we 	have 	very 	liberally 	construed 	the 	‘in 	custody’
requirement for purposes of federal habeas, we have never extended it to
the situation where a habeas petitioner suffers no present restraint from a
conviction.” 	Maleng, 490 U.S. at 492. 	Indeed, in Maleng, the Court
considered “whether a habeas 	petitioner remains ‘in custody’ under a
conviction after the sentence imposed for it has fully expired, merely because
of the possibility that the prior conviction will be used to enhance the
sentences imposed for any subsequent crimes of which he is convicted” and
held that “he does not.” 	Id.; see, e.g., Lackawanna County Dist. Att’y v.
Coss, 532 U.S. 394, 401 (2001) (explaining that “Coss is no longer serving
the sentences imposed pursuant to his 1986 convictions, and therefore
cannot bring a federal habeas petition directed solely at those convictions”);
Diaz v. State of Fla., 683 F.3d 1261, 1264 (11th Cir. 2012) (“Although we
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broadly construe the phrase ‘in custody,’ that requirement has not been
extended to cover a scenario where a petitioner suffers no ‘present restraint’
from the conviction being challenged.”); Birotte v. Sec’y for Dep’t of Corr.,
236 F. App’x 577, 579 (11th Cir. 2007) (“Maleng makes clear that the ‘in
custody’ requirement means that the petitioner must be ‘in custody’ under
the conviction or sentence under attack at the time the habeas petition is
filed, 	and 	the 	collateral 	consequences 	of 	the 	conviction, 	alone, 	are
insufficient to render the defendant ‘in custody’ for the purposes of a habeas
attack.”). 	If Strange is no longer serving the sentence imposed pursuant to
the conviction in case number 87-CF-355, he cannot bring a federal habeas
petition directed at that conviction.
Conclusion
Based on the foregoing, it is respectfully RECOMMENDED that the
Rule 60(b) motion (ECF No. 3) be DENIED and this matter DISMISSED for
lack of jurisdiction as the motion constitutes an unauthorized successive
§ 2254 habeas petition.
Certificate of Appealability
“Although 	generally 	appeals 	from 	§ 	2254 	proceedings 	require 	a
certificate of appealability (“COA”), no COA is necessary to appeal the
dismissal for lack of subject matter jurisdiction of a successive habeas
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petition because such orders are not ‘a final order in a habeas corpus
proceeding.’” 	Osbourne v. Sec’y, Fla. Dep’t of Corr., 968 F.3d 1261, 1264
n.3 (11th Cir. 2020) (quoting Hubbard v. Campbell, 379 F.3d 1245, 1247
(11th Cir. 	2004)). 	See 	Hubbard, 	379 	F.3d 	at 	1247 	(“Section 2253(c)
[regarding 	COAs] 	has 	no 	application here 	because 	the 	district 	court’s
decision dismissing the Amended Petition is not ‘a final order in a habeas
proceeding’ within the meaning of the statute. 	Rather, the decision is a final
order dismissing the Amended Petition for lack of subject matter jurisdiction.
We have jurisdiction to review the order pursuant to 28 U.S.C. § 1291.”).
Recommendation
It is therefore respectfully RECOMMENDED that the Rule 60(b) motion
(ECF 	No. 	3) 	filed 	by 	Petitioner 	Strange 	be 	DENIED 	and 	this 	matter
DISMISSED 	for 	lack 	of 	jurisdiction 	as 	the 	motion 	constitutes 	an
unauthorized successive § 2254 petition.
IN CHAMBERS at Tallahassee, Florida, on May 6, 2026.
S/ Martin A. Fitzpatrick
MARTIN A. FITZPATRICK
UNITED STATES MAGISTRATE JUDGE
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NOTICE TO THE PARTIES
Within fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file specific
written objections to these proposed findings and recommendations.
Fed. R. Civ. P. 72(b)(2). 	A copy of the objections shall be served upon
all other parties. 	A party may respond to another party’s objections
within fourteen (14) days after being served with a copy thereof. 	Fed.
R. Civ. P. 72(b)(2). 	Any different deadline that may appear on the
electronic docket is for the Court’s internal use only and does not
control. 	If a party fails to object to the magistrate judge’s findings or
recommendations as to any particular claim or issue contained in a
Report and Recommendation, that party waives the right to challenge
on appeal the district court’s order based on the unobjected-to factual
and legal conclusions. 	See 11th Cir. R. 3-1; 28 U.S.C. § 636.
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