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UNPUBLISHED PER CURIAM OPINION filed.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]

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UNPUBLISHED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Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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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