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    United States v. John Randall Futch, 11th Cir. (2015)

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    This document is a court case summary that: 1) Affirms the denial of John Randall Futch's motion for relief from his 2002 drug conviction, as his motion was successive and he did not obtain permission from the appeals court to file it. 2) Notes that Futch had previously filed unsuccessful appeals and a §2255 motion regarding his conviction and sentence. 3) Explains that while Futch styled his latest motion under Rule 60(b), it was properly treated as a §2255 motion as it sought to overturn his conviction, and therefore required permission for a successive filing.

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    United States v. John Randall Futch, 11th Cir. (2015)

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    Scribd Government Docs
    47 views4 pages
    This document is a court case summary that: 1) Affirms the denial of John Randall Futch's motion for relief from his 2002 drug conviction, as his motion was successive and he did not obtain permission from the appeals court to file it. 2) Notes that Futch had previously filed unsuccessful appeals and a §2255 motion regarding his conviction and sentence. 3) Explains that while Futch styled his latest motion under Rule 60(b), it was properly treated as a §2255 motion as it sought to overturn his conviction, and therefore required permission for a successive filing.

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    Filed: 2015-04-20 Precedential Status: Non-Precedential Docket: 14-11770

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    This document is a court case summary that: 1) Affirms the denial of John Randall Futch's motion for relief from his 2002 drug conviction, as his motion was successive and he did not obtain permission from the appeals court to file it. 2) Notes that Futch had previously filed unsuccessful appeals and a §2255 motion regarding his conviction and sentence. 3) Explains that while Futch styled his latest motion under Rule 60(b), it was properly treated as a §2255 motion as it sought to overturn his conviction, and therefore required permission for a successive filing.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    47 views4 pages

    United States v. John Randall Futch, 11th Cir. (2015)

    Uploaded by

    Scribd Government Docs
    This document is a court case summary that: 1) Affirms the denial of John Randall Futch's motion for relief from his 2002 drug conviction, as his motion was successive and he did not obtain permission from the appeals court to file it. 2) Notes that Futch had previously filed unsuccessful appeals and a §2255 motion regarding his conviction and sentence. 3) Explains that while Futch styled his latest motion under Rule 60(b), it was properly treated as a §2255 motion as it sought to overturn his conviction, and therefore required permission for a successive filing.

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    You are on page 1of 4

    Case: 14-11770

    Date Filed: 04/20/2015

    Page: 1 of 4

    [DO NOT PUBLISH]


    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-11770
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 4:03-cv-00010-BAE

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    versus
    UNITED STATES CURRENCY TOTALING $18,997.89,
    Defendant,
    BACKUS CADILLAC-PONTIAC, INC.,
    Respondent,
    DAVID C. PITTMAN, et al.,
    Interested Parties,
    JOHN RANDALL FUTCH,
    Interested Party-Appellant.

    Case: 14-11770

    Date Filed: 04/20/2015

    Page: 2 of 4

    ____________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    ________________________
    (April 20, 2015)
    Before TJOFLAT, MARTIN and ANDERSON , Circuit Judges.
    PER CURIAM:
    In United States v. Futch, 99 F. Appx 880 (11th Cir. 2004) (Table), we
    affirmed appellant John Randall Futchs conviction in November 2002 on a plea of
    guilty to an information charging him with conspiring to possess with intent to
    distribute, and to distribute, cocaine, in violation of 21 U.S.C. 846.1 In April
    2005, Futch moved the District Court to vacate his conviction and sentence
    pursuant to 28 U.S.C. 2255. The court denied the motion to the extent that it
    sought the vacation of his conviction but granted the motion as to his sentence; it
    vacated his prison sentence of 240 months and resentenced him to a term of 215
    months. Futch appealed the new sentence and simultaneously sought a certificate
    of appealability (COA) to appeal the denial of 2255 relief as to his conviction.
    We affirmed his sentence, but denied a COA to appeal his conviction. United
    States v. Futch, 518 F. 3d 887, 890 (11th Cir. 2008).

    As we subsequently noted in United States v. Futch, 518 F. 3d 887, 890 (11th Cir.
    2008), Futch unsuccessfully appealed the District Courts denial of his motion to withdraw his
    plea of guilty.
    2

    Case: 14-11770

    Date Filed: 04/20/2015

    Page: 3 of 4

    On March 10, 2014, Futch moved the District Court pursuant to 28 U.S.C.
    2255(f)(3) and (4) and Federal Rule of Criminal Procedure 60(b) for relief from
    his November 2002 conviction. Citing Kaley v. United States, 134 S. Ct. 1090,
    188 L. Ed. 2d 46 (2014), Futch argued that the Government lacked probable cause
    to seize $ 19,000 from his bank account; therefore, his original indictment in
    United States v. Futch and subsequent conviction for violating 21 U.S.C. 846
    were invalid. The Clerk of the District Court erroneously recorded the motion as
    having been filed in an in rem forfeiture action, United States v. United States
    Currency Totaling $18,997.89, brought by the Government to obtain forfeiture of
    the seized money. Futch ultimately prevailed in that action, and the District Court
    had closed case.
    The Government, in its response to Futchs March 10, 2014, motion,
    requested that the District Court treat the motion has having been filed pursuant to
    28 U.S.C. 2255 and deny it on the ground that the motion was successive and
    that Futch had not obtained leave of the Court of Appeals under 28 U.S.C.
    2255(h) to file it.2 The District Court denied Futchs motion, and he lodged this
    appeal.

    To avoid having to seek such leave in the Court of Appeals, Futch requested the
    District Court to treat his motion as part of the 2255 motion he had filed earlier, in April 2005.
    3

    Case: 14-11770

    Date Filed: 04/20/2015

    Page: 4 of 4

    We treat Futchs motion as an effort to obtain the vacation of his 21 U.S.C.


    846 conviction and thus a motion under 2255.3 A prisoner standing in Futchs
    shoes, who previously sought habeas relief, must file a motion in this court seeking
    an order authorizing the district court to consider his successive 2255 motion. 28
    U.S.C. 2244(b)(3). This requirement trumps a prisoners ability to file a Rule
    60(b) motion to reopen his case. Gonzalez v. Secretary of Dept of Corr., 366 F.3d
    1253, 1270-71 (11th Cir. 2004) (en banc). Since Futch failed to obtain leave of
    this court to file his Rule 60(b) motion for relief from his 846 conviction, the
    District Court lacked authority to entertain the motion and thus properly dismissed
    it.
    AFFIRMED.

    We view a motion filed under Fed. R. Crim. P. 60(b) as a habeas corpus application if,
    as in the instant situation, it attacks the federal courts previous resolution of a claim on the
    merits, and is not deemed a habeas corpus application if it attacks, not the substance of the
    federal courts resolution of a claim on the merits, but some defect in the integrity of the federal
    habeas proceedings. Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed.
    2d 480 (2005).
    4

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