UNPUBLISHED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-00132-
LO)
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 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 correction, Matthews sought a remedy for
perceived flaws 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.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 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 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 deny Matthews’ motion for appointment of counsel and
for oral argument. We grant leave to proceed in forma
pauperis. 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