Eugene Schuler v. Harold Clarke

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-6645

EUGENE PETER SCHULER,

Petitioner - Appellant,

HAROLD CLARKE, Director, VDOC,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:16-cv-01151-LMB-JFA)

Submitted: November 28, 2017 Decided: December 8, 2017

Before AGEE, WYNN, and FLOYD, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Eugene Peter Schuler, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Eugene Peter Schuler seeks to appeal the district court’s order denying his second

Fed. R. Civ. P. 60(b) motion for reconsideration of the district court’s order denying

relief on his 28 U.S.C. § 2254 (2012) petition. We deny Schuler’s motion for a certificate

of appealability, dismiss the appeal, and deny authorization to file a successive § 2254

petition.

Because Schuler’s Rule 60(b) motion contains both a claim challenging the

integrity of the federal habeas proceeding and a reiteration of his substantive habeas

claims, it is a mixed Rule 60(b) motion/§ 2254 petition. See United States v. Winestock,

340 F.3d 200, 206-08 (4th Cir. 2003). To the extent Schuler presents a true Rule 60(b)

motion, we deny a certificate of appealability and dismiss this portion of the appeal. See

28 U.S.C. § 2253(c) (2012); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004) (holding

true Rule 60(b) motion is subject to certificate of appealability requirement), abrogated

on other grounds by United States v. McRae, 793 F.3d 392, 399-400 & n.7 (4th Cir.

2015).

To the extent Schuler seeks to appeal the district court’s denial of his unauthorized

successive § 2254 claims, we conclude that the district court lacked jurisdiction to review

any such claim. 28 U.S.C. § 2244(b) (2012). And construing Schuler’s notice of appeal

and informal brief as a motion for authorization to file a second or successive § 2254

petition, Winestock, 340 F.3d at 208, we determine that Schuler has not shown

entitlement to authorization, as his informal brief merely argues the same claims he raised

in his § 2254 petition. See 28 U.S.C. § 2244(b)(1) (providing that any “claim presented

2
in a second or successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed”). Accordingly, we also deny

authorization to file a successive § 2254 petition.

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.

DISMISSED