UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6355
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DICKINSON NORMAN ADIONSER, a/k/a D.C. Black,
Defendant - Appellant.
No. 15-6405
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DICKINSON NORMAN ADIONSER, a/k/a D.C. Black,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr.,
Senior District Judge. (2:03-cr-00081-HCM-JEB-1; 2:10-cv-00085-
HCM-DEM)
Submitted: September 17, 2015 Decided: October 14, 2015
Before MOTZ and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Dickinson Norman Adionser, Appellant Pro Se. Darryl James
Mitchell, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dickinson Norman Adionser appeals the district court’s
order entered December 23, 2014, construing his motion for
relief from judgment under Fed. R. Civ. P. 60(b) as a motion
under 28 U.S.C. § 2255 (2012), and dismissing it as successive.
He also appeals the district court’s denial of his motion to
reconsider the court’s order of September 9, 2014. Adionser
further appeals the district court’s order of March 18, 2015,
denying his motion to reconsider the December 23, 2014 order.
Upon review of the record, we affirm the district court’s denial
of relief on Adionser’s motion to reconsider its order of
September 9, 2014. With regard to the court’s decision to
construe Adionser’s motion for relief from judgment as a § 2255
motion, and the related denial of the motion to reconsider, we
vacate the district court’s orders 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 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
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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. See id. at
400 (quoting United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003)).
In his motion for relief from judgment, Adionser sought a
remedy for the perceived fraud inherent in his § 2255 proceeding
and raised direct attacks on his conviction and sentence.
Accordingly, the motion was a mixed Rule 60(b)/§ 2255 motion.
See McRae, 793 F.3d at 397, 400-01; Gonzalez, 545 U.S. at 532
n.5 (noting that “[f]raud on the federal habeas court” is an
example of an alleged procedural defect that may provide the
basis for a true Rule 60(b) motion); 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”).
The district court did not afford Adionser 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
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Court has made clear that ‘[w]hen [a] motion presents claims
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.’” (quoting Winestock, 340 F.3d at 207)).
We therefore vacate the district court’s orders and remand for
further proceedings.
We grant leave to proceed in forma pauperis and 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,
VACATED IN PART,
AND REMANDED
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