UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6499
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cr-00153-RDB-1; 1:15-cv-00536-RDB)
Submitted: September 17, 2015 Decided: November 5, 2015
Before WILKINSON and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
Larry Johnson, Appellant Pro Se. Debra Lynn Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry Johnson appeals from the district court’s order
dismissing as a successive 28 U.S.C. § 2255 (2012) motion his
self-styled motion for relief from judgment pursuant to Fed. R.
Civ. P. 60(b). 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 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. See id. at
400 (quoting United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003)).
2
In his motion for relief from judgment, Johnson asserted a
perceived defect in his § 2255 proceeding, and he raised
challenges to his conviction and sentence. Accordingly, the
motion was a mixed Rule 60(b)/§ 2255 motion. See McRae, 793
F.3d 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”).
The district court did not afford Johnson the opportunity
to elect between deleting his successive § 2255 claims from his
motion 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 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 order and remand for
further proceedings.
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.
VACATED AND REMANDED
4