UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7185
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE COLEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior
District Judge. (3:01-cr-00506-JFA-3; 3:05-cv-02133-JFA)
Submitted: September 15, 2015 Decided: September 18, 2015
Before KING and AGEE, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Vacated and remanded by unpublished per curiam opinion.
Terrence Coleman, Appellant Pro Se. Stacey Denise Haynes,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terrence Coleman appeals the district court’s order
construing his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2012) motion and denying the motion. 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 petition” and is subject to the
preauthorization requirement of 28 U.S.C. § 2244(b)(3)(A) (2012)
for successive applications. United States v. McRae, 793 F.3d
392, 397 (4th Cir. 2015) (quoting Gonzalez v. 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 requirement.” Id. (quoting
Gonzalez, 545 U.S. at 531-32). Where, however, “‘a motion
presents claims subject to the requirements for successive
applications as well as claims cognizable under Rule 60(b),’”
such a motion is a mixed Rule 60(b)/§ 2255 motion. Id. at 400
(quoting United States v. Winestock, 340 F.3d 200, 207 (4th Cir.
2003)). In his motion, Coleman contended that, contrary to the
district court’s ruling, equitable tolling applied to his
original § 2255 motion; he also raised direct attacks on his
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conviction. Accordingly, the motion was a mixed Rule
60(b)/§ 2255 motion. See McRae, 793 F.3d at 400; 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 ruling which
precluded a merits determination was in error”); Winestock, 340
F.3d at 207 (stating that “a motion directly attacking the
prisoner’s conviction or sentence will usually amount to a
successive application”).
When the district court is presented with a mixed motion,
“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.” Winestock,
340 F.3d at 207. The district court, which did not have the
benefit of our decision in McRae, did not afford Coleman this
opportunity. We therefore vacate the district court’s order,
and remand for further proceedings. We deny Coleman’s motion
for a certificate of appealability because the certificate of
appealability requirement is not applicable here. 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.
VACATED AND REMANDED
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