US v. Lester Fletcher, No. 14-7540 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-7540 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LESTER FLETCHER, a/k/a Big Mann, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:05-cr-00179-PJM-1) Submitted: August 20, 2015 Decided: September 4, 2015 Before NIEMEYER, KING, and SHEDD, Circuit Judges. Affirmed in part; dismissed in part by unpublished per curiam opinion. Lester Fletcher, Appellant Pro Se. David Ira Salem, Gina Simms, Assistant United States Attorneys, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Lester Fletcher appeals the district court’s margin orders denying relief on his self-styled “motion for reconsideration and for summary judgment” denying his motion to recuse. (“reconsideration motion”), and We find that Fletcher’s motion to recuse did not establish judicial bias by the district court and, thus, we affirm the district court’s order. v. Fletcher, No. 8:05-cr-00179-PJM-1 (D. Md. United States filed Aug. 14, 2015; entered Aug. 15, 2015). In the reconsideration motion, * Fletcher asked the district court to reconsider its previous order denying his motion to dismiss as a successive and unauthorized 28 U.S.C. § 2255 (2012) motion. In particular, Fletcher asserted that the district court exhibited bias against him when it granted the Government additional time to respond to the motion to dismiss and failed to notify Fletcher of the extension of time. asserted that the indictment against him Fletcher also should have been dismissed by the district court and that, because his motion to dismiss challenged the district court’s jurisdiction over him, the district court erroneously construed the motion to dismiss as a successive habeas motion. * Because Fletcher’s motion was filed more than 28 days after the court’s order, it is properly construed as a Fed. R. Civ. P. 60(b) motion, rather than a Fed. R. Civ. P. 59(e) motion. See Fed. R. Civ. P. 59(e). 2 Fletcher’s reconsideration motion asserted both a proper Rule 60(b) claim (i.e., district court bias in the handling of his motion to dismiss), as well as a successive habeas claim (i.e., whether the district criminal action). presents claims court had jurisdiction over his We have made clear that “[w]hen [a] motion subject to the requirements for successive applications as well as claims cognizable under Rule 60(b), the district court should afford the applicant an opportunity to elect between deleting the improper claims or having the entire motion treated as a successive application.” United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003). Fletcher was not given that opportunity here. In this case, however, it is apparent that Fletcher’s proper 60(b) claim is meritless and the district court already ruled as Because such when Fletcher certificate appealability of and it denied cannot Fletcher’s establish appealability, dismiss in a recuse. for certificate part, to of the motion. See Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). Because to find consider that the Fletcher’s as a court’s we denying prerequisites deny appeal, to district jurisdiction order the we the motion the district successive reconsideration court habeas lacked claim in Fletcher’s reconsideration motion, we affirm the order, in part. 3 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4
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