ZIMMERMAN

v.

SECRETARY, DEPARTMENT OF CORRECTIONS

Before the Court is Petitioner’s Motion to Vacate (Dkt. 22) the judgment entered July 18, 2019 (Dkt. 17). The Court’s order of that same date denied the

Amended Petition filed pursuant to 28 U.S.C. § 2254 (Dkt. 5). Dkt. 16. Relying on Rule 60(b)(3) of the Federal Rules of Civil Procedure, he claims that this Court impermissibly relied on false information regarding the DNA evidence used to convict him in state court. Dkt. 22 at 12.

Rule 60(b)(3) allows a party to seek relief from a final judgment, and request reopening of the case, on the basis of fraud, misrepresentation, or misconduct by an opposing party. Rule 60(b) may not be used, however, to reopen a final habeas judgment unless the motion challenges “not the substance of the federal court’s resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceeding.” Gonzalez v. Crosby, 545 U.S. 532, 532 (2005).1 Fraud on the federal habeas court constitutes that type of defect. Id. at 532 n.5.

Petitioner contends that the state committed fraud when at trial the prosecutor withheld exculpatory DNA evidence taken by a nurse and then relied instead on other false DNA evidence to convict. Dkt. 22 at 5-7. The other false

DNA evidence was allegedly provided by a county forensic DNA technician and an FDLE forensic witness at trial. The alleged fraud here, as in Gonzalez, was perpetrated on a state court, not this Court in these habeas proceedings.2 As such,

Petitioner has not satisfied the fraud exception under Rule 60(b)(3). In any event, in the habeas ruling, this Court found that in addition to the DNA evidence, the

victim made a positive identification and Petitioner made inculpatory statements in a taped phone call. Dkt. 16 at 2, 17, 24, 31.

Petitioner did raise in his amended petition the inadequacy of the DNA as it pertained to his allegedly ineffective counsel. Dkt. 16 at 9 (“issue of DNA . . . consumes much of Petitioner’s supporting memorandum”). Rule 60(b) is not,

however, a tool to relitigate claims in a habeas that have already been presented or to raise grounds that could have been raised in the petition. See Thomas v. Florida, 706 F. App’x 653, 654–55 (11th Cir. 2017) (affirming district court for construing petitioner’s 60(b)(3) motion as impermissible successive § 2254 petition and for dismissing for lack of jurisdiction) (citing Franqui v. Florida, 638 F. 3d 1368, 1371–72 (11th Cir. 2011) and other cases).³ After review, the Court does not construe this motion as an attempt to file a successive motion. Considering the motion on its face as one filed under Rule 60(b)(3), Mr. Zimmerman has failed to show the fraud exception applies. The allegations do not seek to remedy a fraud agents of the government perpetrated on this federal

court. Accordingly, it is therefore ORDERED AND ADJUDGED that Petitioner’s Motion to Vacate (Dkt. 22) is denied.

DONE AND ORDERED at Tampa, Florida, on September 30, 2019.

s/William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO: Counsel of Record and Petitioner, pro se