[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 10-10957                   JULY 15, 2011
                                                               JOHN LEY
                           Non-Argument Calendar                 CLERK
                         ________________________

                    D.C. Docket No. 8:95-cr-00317-RAL-1

STEVEN J. SMITH,

                                                             Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                 (July 15, 2011)

Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

     Steven J. Smith, a federal prisoner, appeals through counsel the denial of a
motion he filed pursuant to Fed.R.Civ.P. 60(b)(4), but that the district court

construed as a motion to vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255. We granted Smith a certificate of appealability (“COA”) on the following

two issues: “(1) Whether the district court erred in denying Petitioner’s Federal

Rule of Civil Procedure 60(b) motion,” and “(2) Whether Petitioner has any other

post-conviction remedy available to him which the district court should have

considered with respect to the merits of his claim.” 1



I.     Rule 60(b)(4) Motion

       Ordinarily, we review a district court’s ruling on a Rule 60(b) motion for an

abuse of discretion. Burke v. Smith, 

, 1263 (11th Cir. 2001).

However, we review de novo a district court’s ruling on a Rule 60(b)(4) motion to

set aside a judgment as void. 

review de novo a district court’s

dismissal of a § 2255 motion as second or successive. Gooden v. United States,

, 847 n.2 (11th Cir. 2010).




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                The government submits that we should vacate the COA as improvidently
granted. “Once the parties have briefed and argued the issue set out in a COA and we have
reached the point of considering an appeal on the merits, the time for scrutinizing the COA has
long since passed.” Thomas v. Crosby, 

, 784 (11th Cir. 2004). We decline to
entertain the government’s challenge to the COA at this stage in the matter.

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      Rule 60(b) of the Federal Rules of Civil Procedure permits a court to relieve

a party from a “final judgment, order, or proceeding” for various reasons,

including when “the judgment is void.” Fed.R.Civ.P. 60(b)(4). A motion filed

pursuant to Rule 60(b)(4) must be made “within a reasonable time.” Fed.R.Civ.P.

60(c)(1).

      The Federal Rules of Civil Procedure “govern the procedure in all civil

actions and proceedings in the United States district courts, except as stated in

Rule 81.” Fed.R.Civ.P. 1. Accordingly, we have held that Rule 60(b) cannot be

used to obtain relief in criminal proceedings. See United States v. Mosavi, 

, 1366 (11th Cir. 1998). In Mosavi, we held that the defendant could not

challenge a criminal forfeiture order using a Fed.R.Civ.P. 60(b) motion because

Fed.R.Civ.P. 1 unambiguously provides that the Federal Rules of Civil Procedure

govern the procedure in all suits of a civil nature. 

      The judgment and order that the defendant contests were entered, not
      in a civil case, but in a criminal case, and a proper appeal of the
      forfeitures should have been raised in the defendant’s criminal appeal
      of his conviction and sentence. Rule 60(b) simply does not provide
      for relief from judgment in a criminal case.

Id.; see also United States v. Fair, 

, 1318 (11th Cir. 2003) (holding

that Rule 60(b)(4) could not be used to attack any alleged deficiencies in the




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district court’s order denying Fair’s 18 U.S.C. § 3582(c)(2) motion because § 3582

is “criminal in nature”).

      The Antiterrorism and Effective Death Penalty Act provides that, to file a

second or successive § 2255 motion, a movant must first receive an order from the

U.S. Court of Appeals authorizing the district court to consider it. Farris v.

United States, 

, 1216 (11th Cir. 2003); 28 U.S.C. § 2255(h).

“Without authorization, the district court lacks jurisdiction to consider a second or

successive petition.” 

.

      In Gonzalez v. Crosby, the Supreme Court held that:

      a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a
      successive habeas petition if it does not assert, or reassert, claims of
      error in the movant’s state conviction. A motion that, like
      petitioner’s, challenges only the District Court’s failure to reach the
      merits does not warrant such treatment, and can therefore be ruled
      upon by the District Court without precertification by the Court of
      Appeals pursuant to § 2244(b)(3).

, 538, 

, 2651 (2005). Although the Supreme Court

expressly noted that it was limiting its consideration to § 2254 cases, 

n.3, we recently held that “the standard announced in

Gonzalez applies to federal prisoner cases as well,” Gilbert v. United States, No.

09-12513, manuscript op. at 69 (11th Cir. May 19, 2011) (en banc). In Gilbert, we

rejected the appellant’s argument that a motion he filed asserting an error of law in

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the calculation of his sentence should have been treated as one filed under Rule

60(b)(5) and (6), holding that “[b]ecause Gilbert’s motion sought to assert or

reassert a claim for relief, instead of pointing out a defect in the integrity of the

earlier § 2255 motion proceeding in his case, under Gonzalez his motion is the

equivalent of a second or successive motion and is barred by § 2255(h).” Gilbert,

No. 09-12513, manuscript op. at 17-18, 68-69.

      The district court did not err in denying Smith relief under Fed.R.Civ.P.

60(b)(4) because that rule of civil procedure could not be used to attack Smith’s

criminal judgment, and the district court did not err in denying his motion,

construed as a § 2255 motion, because it was an unauthorized second or

successive § 2255 motion.

II.   Other Relief

      Rule 60(b) also enables a court to relieve a party from a final judgment,

order, or proceeding if: “(5) the judgment has been satisfied, released or

discharged; it is based on an earlier judgment that has been reversed or vacated; or

applying it prospectively is no longer equitable; or (6) [for] any other reason that

justifies relief.” Fed.R.Civ.P. 60(b)(5) and (6).

      On appeal, Smith identifies only Rule 60(b)(5) and (6) as the other

post-conviction remedies that the district court should have considered. However,

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as discussed above, Rule 60(b) is a rule of civil procedure that cannot be used to

attack a judgment in a criminal case. Therefore, Smith has not shown that the

district court erred in failing to consider whether his claim was cognizable under

Rule 60(b)(5) or (6).

      Based on our review of the record and consideration of the parties’ briefs,

we affirm the district court’s denial of Smith’s motion.

      AFFIRMED.2




      2
             Smith’s request for oral argument is denied.

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