Judge Faircloth: REPORT AND RECOMMENDATION

(For clarity, please read this posting eleventh.)

Postings list is to the right on this page.

.

On January 9, 2009, United States Magistrate Judge G. Mallon

Faircloth issued Doc. 203, REPORT AND RECOMMENDATION,

stating as follows:

.

"Only the most egregious misconduct, such as bribery of a judge

or member of a jury, or the fabrication of evidence by a party in

which an attorney is implicated, will constitute a fraud on the

court." Rozier v. Ford Motor Co. 573 F.2d 1332, 1338 (5th Cir.

1978). "Less egregious misconduct, such as nondisclosure to the

court of facts allegedly pertinent to the matter before it, will not

ordinarily rise to the level of fraud on the court. Id. Thus, "it is

necessary to show an unconscionable plan or scheme which is

designed to improperly influence the court in its decision." Id.

By this authority, even if Attorney Yurachek had maintained

his original reservation and totally withheld the Amended

1994 Tax Return and Collier's Affidavit from the court, that

nondisclosure would not have risen to the level of fraud on the

court. There can not have been a fraud upon the court by either

of the choices Attorney Yurachek might have made. Petitioner

Brown cannot support his claim of fraud upon the court, the only

avenue available to him under Federal Rule 60(b) of the Federal

Rules of Civil Procedure. The Supreme Court noted in Gonzalez,

545 U.S. at 533, 125 S.Ct. at 2648, n. 5, that, "[A]n attack based

on the movant's own conduct, or his habeas counsel's omission

ordinarily does not go to the integrity of the proceedings, but in

effect asks for a second chance to have the merits determined

favorably."

.

All of Brown's claims and arguments, including his faulty claim

of fraud on the court, attempt to gain him a new trial as is

evident from his Motion For Relief From Judgement (Doc. 151)

and his Reply (Doc. 201). This court has had jurisdiction only

to consider Brown's claim of fraud on the court pursuant to Rule

60(b). Having found that claim to be without merit, the court

must recognize the limitation of its jurisdiction and that

Petitioner Brown has failed to invoke its jurisdiction at this

point in this case. For that reason his Motion for Injunctive

Relief (Doc. 198) as to his criminal adjudication and his Motion

for Disclosure (Doc. 199) amount to claims involving challenges

to his conviction and sentence that can be brought only in a

second or successive Motion to Vacate, Set Aside, or Correct

Sentence pursuant to 28 U.S.C., Section 2255. This court is

without jurisdiction to entertain such without authorization

from the United States Court of Appeals for the Eleventh

Circuit. 28 U.S.C., Section 2244(b).

.

WHEREFORE, IT IS RECOMMENDED that Petitioner

Brown's Rule 60(b) Motion be DENIED as failing to state a

claim upon which this court may grant relief. Pursuant to

28 U.S.C., Section 60(b)(1), Petitioner may serve and file

written objection to this Recommendation with the UNITED

STATES DISTRICT JUDGE, WITHIN TEN(10) DAYS after

being served with a copy hereof.

.

SO RECOMMENDED this 9th day of January 2009.

.

S/ G. MALLON FAIRCLOTH

UNITED STATES MAGISTRATE JUDGE