Theodore Vazquez v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13527
Non-Argument Calendar
____________________
THEODORE VAZQUEZ,
Petitioner,
versus
UNITED STATES OF AMERICA,
Respondent.
Before WILSON , J ORDAN , and LUCK , Circuit Judges.
PER CURIAM:
Theodore Vazquez, a federal prisoner proceeding pro se, ap-
peals the district court’s dismissal of his Rule 60(b)(6) motion as an
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2 Opinion of the Court 22-10968
unauthorized second or successive motion to vacate under 28
U.S.C. § 2255. Following a review of the record and the parties’
briefs, we affirm.
In 2019, Mr. Vazquez filed a § 2255 motion to vacate alleging
that his counsel had rendered ineffective assistance by failing to ob-
ject to the use of his 1999 Florida narcotics conviction as a predicate
offense for enhancement under the Armed Career Criminal Act.
The district court denied his § 2255 motion, concluding that Mr.
Vazquez was subject to an ACCA-enhanced sentence because of a
2011 Florida conviction for trafficking of cocaine. See Fla. Stat. §
893.135. As a result, even if counsel had objected to the use of the
1999 conviction, the 2011 conviction would have sufficed to sen-
tence Mr. Vazquez under the ACCA. In other words, Mr. Vazquez
could not show prejudice. See D.E. 15 at 5-7.
Mr. Vazquez then filed a Rule 60(b)(6) motion, arguing that
the district court’s reliance on the 2011 conviction for its lack-of-
prejudice determination was erroneous. The district court dis-
missed the motion, reasoning that it attacked the prior resolution
of the § 2255 motion on the merits and was therefore an unauthor-
ized second or successive motion to vacate.
We review de novo the district court’s conclusion that Mr.
Vazquez’s Rule 60(b)(6) motion was an unauthorized second or
successive § 2255 motion. See Ferris v. United States, 333 F.3d 1211,
1216 (11th Cir. 2003). Exercising plenary review, we conclude that
the district court’s ruling was correct.
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22-10968 Opinion of the Court 3
A Rule 60(b)(6) motion is an impermissibly second or suc-
cessive § 2255 motion to vacate if, among other things, it “attacks
the federal court’s previous resolution of a claim on the merits, since
alleging that the [c]ourt erred in denying habeas [or § 2255] relief
on the merits is effectively indistinguishable from alleging that the
movant is, under the substantive provisions of the statutes, entitled
to habeas [or § 2255] relief.” Gonzalez v. Crosby, 545 U.S. 524, 532
(2005) (footnote omitted). Here the Rule 60(b)(6) motion chal-
lenged the district court’s merits resolution of Mr. Vazquez’s § 2255
motion. As a result, it was an unauthorized second or successive §
2255 motion.
AFFIRMED.
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