US v. Lester Fletcher
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:05-cr-00179-PJM-1 Copies to all parties and the district court/agency. [999654437]. Mailed to: Lester Fletcher. [14-7540]
Appeal: 14-7540
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESTER FLETCHER, a/k/a Big Mann,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:05-cr-00179-PJM-1)
Submitted:
August 20, 2015
Decided:
September 4, 2015
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Lester Fletcher, Appellant Pro Se. David Ira Salem, Gina Simms,
Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lester Fletcher appeals the district court’s margin orders
denying relief on his self-styled “motion for reconsideration
and
for
summary
judgment”
denying his motion to recuse.
(“reconsideration
motion”),
and
We find that Fletcher’s motion to
recuse did not establish judicial bias by the district court
and, thus, we affirm the district court’s order.
v.
Fletcher,
No.
8:05-cr-00179-PJM-1
(D.
Md.
United States
filed
Aug.
14,
2015; entered Aug. 15, 2015).
In the reconsideration motion, * Fletcher asked the district
court to reconsider its previous order denying his motion to
dismiss as a successive and unauthorized 28 U.S.C. § 2255 (2012)
motion.
In
particular,
Fletcher
asserted
that
the
district
court exhibited bias against him when it granted the Government
additional time to respond to the motion to dismiss and failed
to notify Fletcher of the extension of time.
asserted
that
the
indictment
against
him
Fletcher also
should
have
been
dismissed by the district court and that, because his motion to
dismiss challenged the district court’s jurisdiction over him,
the district court erroneously construed the motion to dismiss
as a successive habeas motion.
*
Because Fletcher’s motion was filed more than 28 days
after the court’s order, it is properly construed as a Fed. R.
Civ. P. 60(b) motion, rather than a Fed. R. Civ. P. 59(e)
motion. See Fed. R. Civ. P. 59(e).
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Fletcher’s
reconsideration
motion
asserted
both
a
proper
Rule 60(b) claim (i.e., district court bias in the handling of
his motion to dismiss), as well as a successive habeas claim
(i.e.,
whether
the
district
criminal action).
presents
claims
court
had
jurisdiction
over
his
We have made clear that “[w]hen [a] motion
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.”
United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003).
Fletcher was not
given that opportunity here.
In
this
case,
however,
it
is
apparent
that
Fletcher’s
proper 60(b) claim is meritless and the district court already
ruled
as
Because
such
when
Fletcher
certificate
appealability
of
and
it
denied
cannot
Fletcher’s
establish
appealability,
dismiss
in
a
recuse.
for
certificate
part,
to
of
the
motion.
See Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004).
Because
to
find
consider
that
the
Fletcher’s
as
a
court’s
we
denying
prerequisites
deny
appeal,
to
district
jurisdiction
order
the
we
the
motion
the
district
successive
reconsideration
court
habeas
lacked
claim
in
Fletcher’s reconsideration motion, we affirm the order, in part.
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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.
AFFIRMED IN PART;
DISMISSED IN PART
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