Najam Azmat v. USA

[DO NOT PUBLISH]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 Date Filed: 09/28/2022 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 20-14262
Before ROSENBAUM, GRANT and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Najam Azmat, proceeding
pro se, appeals the dis-
trict 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 mo-
tion 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 ha-
beas petition for lack of subject-matter jurisdiction does not consti-
tute 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 Date Filed: 09/28/2022 Page: 2 of 4

-- 2 of 4 --

20-14262 Opinion of the Court 3
Azmat’s second Rule 60(b) motion, to the extent that it was con-
strued 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 appli-
cable, treat it as an unauthorized second or successive motion.
Far-
ris, 333 F.3d at 1216. Specifically, Rule 60(b) motions are subject to
the restrictions on successive habeas petitions if the prisoner is at-
tempting 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);
Far-
ris, 333 F.3d at 1216.
Before a prisoner may file a second or successive § 2255 mo-
tion 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 Date Filed: 09/28/2022 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 20-14262
III.
Here, even when construed liberally, Azmat’s arguments in
his brief do not discuss the sole issue on appeal concerning the dis-
trict court’s determination that Azmat’s Rule 60(b) motion is a suc-
cessive § 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 de-
nial of his Rule 60(b) motion on the merits because he did not re-
ceive 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 con-
clude 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 at-
tempting 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 afore-
mentioned reasons, we affirm the district court’s order dismissing
Azmat’s Rule 60(b) motion.
AFFIRMED.
USCA11 Case: 20-14262 Date Filed: 09/28/2022 Page: 4 of 4

-- 4 of 4 --