REPORT AND RECOMMENDATION

GARY R. JONES, Magistrate Judge.

This case is before the Court on Doc. 298, Defendant's "Motion to Vacate Sentence Pursuant to Rule 60(b)." The motion stems from Defendant's jury-trial conviction for conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C §§ 841 and 846. Doc. 200 (judgment). Defendant received an enhanced mandatory life sentence under 21 U.S.C § 841(b)(1)(A)(iii) based on prior felony drug convictions.1 See Doc. 26 (21 U.S.C § 851 Notice of Enhancement, setting forth three prior state felony controlled-substance convictions). Defendant's conviction and sentence were affirmed on direct appeal. Doc. 244. In affirming the conviction and sentence, the Eleventh Circuit rejected Defendant's claim pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),2 that the sentence enhancement for prior convictions was an element of the crime that should have been proven to the jury. Id. at 244.

Defendant filed a motion to vacate under 28 U.S.C § 2255 asserting four claims for relief, including a reassertion of his Apprendi claim. Doc. 245. The Court denied the motion on the merits. Docs. 253, 259. Defendant did not appeal. Defendant unsuccessfully sought relief by way of a habeas corpus petition under 28 U.S.C § 2241. See Smith v. United States, 1:10-cv-230-MP-GRJ (4/15/11) (dismissing petition for lack of jurisdiction). Defendant did not appeal. Defendant has also unsuccessfully pursued sentence-reduction motions under the Fair Sentencing Act of 2010, 18 U.S.C § 3582. Docs. 263, 279.

In the instant motion, Defendant contends that he is entitled to Fed. R. Civ. P. 60(b) relief from the judgment denying his motion to vacate. Defendant argues that he is entitled to relief because his indictment did not list the prior offenses that qualified him for a mandatory life sentence, and therefore the fact of such prior convictions was not proven to the jury beyond a reasonable doubt. As support for this claim, Defendant cites Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (applying rule in Apprendi and holding "any fact that increases the mandatory minimum is an `element' that must be submitted to the jury"). Defendant contends that pursuant to Alleyne and Booker3, his sentence should not have been enhanced because it was not premised on jury-found facts. Defendant contends that Alleyne rendered the Court's decision denying his § 2255 motion "unlawful and unenforceable." Doc. 298.

Collateral attacks on the legality of a federal sentence typically must be brought under § 2255. Darby v. Hawk-Sawyer, 405 F.3d 942, 944 (11th Cir. 2005). Courts must look past the label of a motion in order to determine its actual legal effect and must treat the motion according to its legal effect, rather than its formal name. United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Rule 60(b) motions cannot be used to "evade the second or successive petition bar . . . by either adding a new ground for relief or attacking the federal court's previous rejection of a claim on the merits." Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011) (en banc) (holding that the rule announced in Gonzalez v. Crosby, 545 U.S. 524 (2005), which decided that state prisoners could not circumvent the bar on successive habeas petitions by filing Rule 60(b) motions, applies equally to federal prisoners). Therefore, when a federal prisoner seeks to "assert or reassert a claim for relief, instead of pointing out a defect in the integrity of the earlier § 2255 motion preceding in his case . . . his motion is the equivalent of a second or successive motion." Id.

In this case, it is clear that the instant motion is the "equivalent of a second or successive motion." Id. Because Defendant was denied collateral relief previously under § 2255, he is barred from seeking such relief in this Court absent prior certification from the Eleventh Circuit. 28 U.S.C. §§ 2255(h), 2244(b)(3). There is nothing in the record that reflects that Defendant has been granted leave by the Eleventh Circuit to file a second or successive motion to vacate, and thus this Court lacks the requisite authorization to entertain the claims raised in the instant motion.

Moreover, under the circumstances presented Alleyne affords Defendant no relief. Alleyne did not disturb the Supreme Court's previous holding in Almendarez-Torres v. United States, 523 U.S. 224, 247 (1998), that a prior conviction is not considered an element of a crime, and such prior conviction does not have to be proven to a jury beyond a reasonable doubt. U.S. v. Dames ___ Fed. Appx. ___, 2014 WL 591043, *2 (11th Cir. 2014) (affirming sentence enhancement under 21 U.S.C § 851 that increased mandatory-minimum sentence due to prior felony conviction) (citing Alleyne, 133 S.Ct. at 2160 n.1).4 In Alleyne, the Supreme Court reaffirmed that pursuant to Apprendi "`facts that increase the prescribed range of penalties to which a criminal defendant is exposed' are elements of the crime," and applied Apprendi to facts that increase mandatory-minimum sentences. Alleyne, 133 S.Ct. at 2160. However, the Court noted that Almendarez-Torres "recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision's vitality, we do not revisit it for purposes of our decision today." Id. at 2160 n.1. Thus, because Alleyne did not overrule the Almendarez-Torres exception, Defendant cannot rely on Alleyne to challenge the enhancement of his sentence for prior convictions. Dames, 2014 WL 591043 *2.

For these reasons, it is respectfully RECOMMENDED:

That the Motion to Vacate Sentence Pursuant to Rule 60 (b), Doc. 298, should be DENIED.