Reported / Citable
Background
Treveon Dominique Anderson, a federal prisoner, previously sought post-conviction relief under 28 U.S.C. § 2255, challenging his conviction and sentence. The Northern District of Texas denied that motion on the merits in 2023 and declined to issue a certificate of appealability. Anderson’s subsequent Rule 59(e) motion was also denied — the court found that his reply brief and supporting exhibits were not competent evidence because they failed to comply with 28 U.S.C. § 1746’s declaration-under-penalty-of-perjury requirement. The Fifth Circuit declined to certify an appeal.
Anderson then filed a Rule 60(b)(1) motion arguing he had mistakenly believed his § 2255 perjury declaration extended to the unverified exhibits. The district court construed that motion as an unauthorized successive § 2255 petition and transferred it to the Fifth Circuit, which dismissed the appeal as frivolous, holding that the motion did not allege a defect in the integrity of the § 2255 proceedings but instead sought reconsideration of the merits-based denial.
Undeterred, Anderson filed the present motion under Rule 60(b)(6), characterizing it as a request to correct a purely procedural defect — specifically, the absence of a § 1746 declaration from the certificate of service on his original § 2255 reply brief. He asked the court to accept a corrected certificate of service on a nunc pro tunc basis so that the reply brief and its exhibits would retroactively qualify as competent evidence.
The Court’s Holding
Judge Ed Kinkeade construed Anderson’s Rule 60(b)(6) motion as yet another unauthorized successive § 2255 habeas petition and dismissed it without prejudice for lack of jurisdiction. The court found that, despite Anderson’s procedural framing, the true purpose of the motion was to obtain reconsideration of the merits-based denial of the habeas claims to which his unverified exhibits related. Retroactively validating the non-compliant evidence would inevitably lead to a second merits review — precisely what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) forbids without prior Fifth Circuit authorization. Because no such authorization had been granted, the court lacked jurisdiction to entertain the motion.
Alternatively, the court denied the motion on the merits. Anderson argued that the prior characterization of his Rule 60(b)(1) motion as a successive petition constituted an extraordinary circumstance justifying Rule 60(b)(6) relief. The court rejected this, noting that the Fifth Circuit had already considered and dismissed that very argument as frivolous. Anderson therefore failed to carry his burden of demonstrating the extraordinary circumstances required for Rule 60(b)(6) relief. His related motion to expedite a ruling was denied as moot.
Key Takeaways
- A Rule 60(b) motion that seeks to retroactively cure evidentiary defects from original § 2255 proceedings — with the practical effect of forcing reconsideration of claims denied on the merits — will be construed as a successive habeas petition regardless of how it is labeled.
- Under Gonzalez v. Crosby, 545 U.S. 524 (2005), only motions challenging a true defect in the integrity of the habeas proceeding (not a failure of the petitioner’s own proof) may proceed under Rule 60(b) without AEDPA’s gatekeeping requirements.
- Where a prisoner has filed repeated meritless post-judgment motions, a district court may dismiss an unauthorized successive § 2255 petition outright rather than transferring it to the circuit court.
- A prior appellate ruling rejecting the same substantive argument forecloses the “extraordinary circumstances” showing required for Rule 60(b)(6) relief.
Why It Matters
This decision illustrates the strict limits courts impose on creative procedural vehicles used to circumvent AEDPA’s bar on successive habeas petitions. Federal prisoners who fail to submit competent, properly verified evidence in their initial § 2255 proceedings cannot later repackage that evidentiary failure as a “procedural defect in the habeas proceeding” to obtain a second bite at the merits apple through Rule 60(b).
The opinion also reinforces that district courts retain discretion to dismiss — rather than transfer — facially unauthorized successive petitions when a petitioner’s litigation history demonstrates the futility of yet another circuit referral. For practitioners, the case is a reminder that § 1746 verification requirements are not mere formalities: failure to comply can permanently foreclose reliance on key supporting evidence in post-conviction proceedings.