US v. Alexander Matthews, No. 15-6656 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6656 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. ALEXANDER OTIS MATTHEWS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:11-cr-00087-LO-1; 1:11-cr-00348-LO-1; 1:12-cv-00132LO) Submitted: September 30, 2015 Decided: November 5, 2015 Before WILKINSON and KING, Circuit Judges, and DAVIS, Senior Circuit Judge Vacated and remanded by unpublished per curiam opinion. Alexander Otis Matthews, Appellant Pro Se. Ryan Scott Faulconer, Peter August Frandsen, OFFICE OF THE UNITED STATES ATTORNEY, Jack Hanly, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Alexander Otis Matthews appeals from the district court’s April 10, 2015 order granting in part and denying in part his motion under Fed. R. Civ. P. 60(b) seeking reconsideration of the denial of 28 U.S.C. § 2255 (2012) relief. We vacate the district court’s order and remand for further proceedings. “[A] Rule 60(b) motion in a habeas proceeding that attacks ‘the substance of the federal court’s resolution of a claim on the merits’ is not a true Rule 60(b) motion, but rather a successive habeas [application]” and is subject to the preauthorization requirement of 28 U.S.C. § 2244(b)(3)(A) (2012) for successive F.3d 392, 397 applications. (4th Cir. United 2015) States (quoting v. Gonzalez McRae, v. 793 Crosby, 545 U.S. 524, 531-32 (2005)). By contrast, a “Rule 60(b) motion that challenges ‘some defect in the integrity of the federal habeas proceedings’ . . . is a true Rule 60(b) motion, and is not subject to the preauthorization (quoting Gonzalez, 545 motion claims “‘presents successive applications Rule 60(b),’” such motion. a U.S. as at 531-32). subject well motion is to as a requirement.” Where, the claims mixed however, requirements cognizable Rule Id. 60(b)/§ a for under 2255 See id. at 400 (quoting United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)). 2 In his motion for correction, Matthews sought a remedy for perceived attacks flaws on in his his § 2255 proceeding and sentence. conviction and direct Accordingly, motion was a mixed Rule 60(b)/§ 2255 motion. F.3d raised the See McRae, 793 at 397, 400-01; Gonzalez, 545 U.S. at 532 n.4 (holding that a movant files a true Rule 60(b) motion “when he . . . asserts that a previous determination was (stating that conviction or in “a ruling error”); motion sentence which Winestock, directly will precluded 340 attacking usually amount a F.3d the to a merits at 207 prisoner’s successive application”). The district court did not afford Matthews the opportunity to elect between deleting his successive § 2255 claims from his true Rule 60(b) claims or having his entire motion treated as a successive § 2255 motion. See McRae, 793 F.3d at 400 (“This Court has made clear that ‘[w]hen [a] motion claims presents 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 application.’” therefore entire motion (quoting vacate the treated Winestock, district 340 court’s further proceedings. 3 as a successive F.3d at 207)). order and remand We for We deny Matthews’ motion for appointment of counsel and for oral argument. pauperis. legal We grant leave to proceed in forma We dispense with oral argument because the facts and contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED AND REMANDED 4
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