US v. Larry Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--updating certificate of appealability status Originating case number: 1:07-cr-00153-RDB-1,1:07-cr-00153-RDB-1 Copies to all parties and the district court/agency. [999693621]. Mailed to: Larry Johnson. [15-6499]

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UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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’

successive

is

not

habeas

a

true

Rule

60(b)

[application]”

and

motion,
is

but

rather

subject

to

a

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
subject

to

Gonzalez,
“‘presents

the
545

a

true

Rule

preauthorization
U.S.

claims

at

531-32).

subject

to

the

60(b)

motion,

requirement.”
Where,

and
Id.

however,

requirements

for

is

not

(quoting
a

motion

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)).

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In his motion for relief from judgment, Johnson asserted a
perceived

defect

in

his

§ 2255

proceeding,

challenges to his conviction and sentence.

and

he

raised

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

§ 2255 motion.

his

entire

motion

See McRae, 793 F.3d

treated

as

a

successive

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

improper

an

claims

opportunity
or

having

to

the

elect
entire

between
motion

deleting
treated

the

as

a

successive application.’” (quoting Winestock, 340 F.3d at 207)).
We therefore vacate the district court’s order and remand for
further proceedings.

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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.

VACATED AND REMANDED

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