Thе opinion that issued in this matter on June 4, 2004 is hereby vacated and withdrawn and the following substituted therefor:
Hugh W. Boone, proceeding pro se, appeals the district court’s dismissal оf his Federal Rule of Civil Procedure 60(b) motion for relief from judgment from the order dismissing his 28 U.S.C. § 2254 petition for writ of habeas corpus. On appeаl, Boone argues that the district court abused its discretion by denying his Rule 60(b) motion based on its finding that the date of his re-sentencing was irrelevant for purposes of determining when the Antiter-rorism and Effective Death Penalty Act of 1996’s (“AEDPA”) one-year limitations period for federal writs of hаbeas corpus had commenced. Finding that the district court lacked jurisdiction to review Boone’s Rule 60(b) motion, we affirm the dismissal of thе motion.
Boone is a Florida prisoner who was sentenced to a total of 16.75 years’ imprisonment for sexual battery, possession of cocaine, and multiple child sex offenses. Boone filed a § 2254 petition on May 5, 2003, challenging the lawfulness of his arrest and the sеarch of his residence. Boone also argued that his defense counsel had rendered ineffective assistance by failing to mоve to suppress evidence that Boone alleged was unlawfully seized. In his petition, Boone noted that the “Date of *1316 judgment of conviction” was January 9, 1997, but that he had been re-sentenced on October 10, 2002, subsequent to his filing a Florida Rule of Criminal Procedure 3.800 motion for post-conviction relief.
The district court sua sponte dismissed Boone’s § 2254 petition as time-barred under the AEDPA’s one-year period of limitations for writs of habeas corpus. The court found that Bоone’s convictions had become final on February 8,1997, and that the AEDPA’s one-year statute of limitations had expired in February 1998.
Boone moved for reconsideration of the court’s order, pursuant to Rule 60(b), arguing that his § 2254 petition should be deemed timely filed because he had filed it within one year of the date on which he was re-sentenced. In support of his claim, Boone cited
Walker v. Crosby,
The district court denied Boоne’s Rule 60(b) motion, finding that Walker was inapplicable because Boone’s § 2254 petition challenged only the validity of his underlying conviction. Cоnsequently, the court found that the date of Boone’s re-sentencing, which did not affect the validity of his convictions, was irrelevant for рurposes of calculating the AEDPA’s one-year limitations period. Thereafter, the district court granted a certificate of appealability (“COA”) as to “whether a petitioner is entitled to the benefit of a new statute of limitations period commencing from the date of re-sentencing pursuant to [Walk er] when the petition for writ of habeas corpus challenges only the original trial proceedings and does not raise any challenge based on the re-sentencing proceedings.”
On appeal, Boone аrgues that the district court erred by denying his Rule 60(b) motion based on its finding that the date of his re-sentencing was irrelevant for purposes of determining when the AEDPA’s one-year limitations period had commenced. Boone maintains that, under Walker, the limitations period should have begun on the date that his re-sentencing judgment became final, regardless of whether his § 2254 petition challenged his re-sentencing judgment. Boone additionally contends that, in finding that his § 2254 petition was not timely, the district court erroneously employed a “claims approach,” whereby it sеparately reviewed each of his claims for timeliness.
We cannot reach these questions because the district court never had jurisdiction to entertain the Rule 60(b) motion. We are obligated to raise questions concerning our subject matter jurisdiction
sua sponte
in all cases.
See, e.g., Arthur v. Haley,
Sitting en banc, our Court found that the Supreme Cоurt’s recent decision in Calderon clarified the viability, post-AED-PA, of Rule 60(b) motions in the context of federal habeas petitions. 2 We held that district сourts do not have the jurisdiction to consider Rule 60(b) motions to reconsider the denial of a habeas petition unless the motion is a 60(b)(3) motion, that is, one made to prevent fraud upon the court. 3 We reasoned that, “because a petitioner’s attempt to reopen a final habeas judgment pursuant to Rule 60(b) is to be treated as an application to file a second or successive petition, it ordinarily should be dismissed by the district court pursuant to § 2244(b)(4).”
Such is the case here. Boone’s Rule 60(b) motion, like Gonzalez’s, was not designed to prevent a fraud upon the court, but rather to reopen his habeas judgment based on intervening law — and thus should not have been entertained by the district court. Accordingly, we find that the district court lacked subject matter jurisdiction over Boone’s Rule 60(b) motion. As such, it also was without jurisdiction to grant a COA. The COA issued by the district court is VACATED and the dismissal of the motion is AFFIRMED based upon a lack of jurisdiction.
Notes
. We recognize that the district court did not have the advantage of our en banc opinion at the time it considered Boone’s Rule 60(b) motion.
. In
Calderon,
the Supreme Court ruled that the use of mandate recalls in the field of habeas cases is severely restricted because it can be regarded as a second or successive application, contrary to Congress' goal in the AEDPA to ensure greater finаlity of state and federal court judgments in criminal cases.
Calderon v. Thompson,
. Like Calderon, we held that the district court also has jurisdiction to consider a motion made under Rule 60(a) to correct a clerical error.