US v. Alexander Matthew
Filing
UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to appoint/assign counsel [999649830-2]; denying Motion to schedule oral argument [999649830-3]; granting Motion to proceed in forma pauperis (FRAP 24) [999581736-2], updating certificate of appealability status Originating case number: 1:11-cr-00087-LO-1,1:11-cr-00348-LO-1,1:12-cv-00132-LO Copies to all parties and the district court/agency. [999693643]. Mailed to: Alexander Otis Matthews FCI BERLIN FEDERAL CORRECTIONAL INSTITUTION P. O. Box 9000 Berlin, NH 03570 Peter August Frandsen. [15-6656]
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UNPUBLISHED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-00132LO)
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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
F.3d 392,
397
applications.
(4th
Cir.
United
2015)
States
(quoting
v.
Gonzalez
McRae,
v.
793
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
(quoting Gonzalez,
545
motion
claims
“‘presents
successive applications
Rule
60(b),’” such
motion.
a
U.S.
as
at
531-32).
subject
well
motion
is
to
as
a
requirement.”
Where,
the
claims
mixed
however,
requirements
cognizable
Rule
Id.
60(b)/§
a
for
under
2255
See id. at 400 (quoting United States v. Winestock,
340 F.3d 200, 207 (4th Cir. 2003)).
2
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In his motion for correction, Matthews sought a remedy for
perceived
attacks
flaws
on
in
his
his
§
2255
proceeding
and
sentence.
conviction
and
direct
Accordingly,
motion was a mixed Rule 60(b)/§ 2255 motion.
F.3d
raised
the
See McRae, 793
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
determination was
(stating
that
conviction
or
in
“a
ruling
error”);
motion
sentence
which
Winestock,
directly
will
precluded
340
attacking
usually
amount
a
F.3d
the
to
a
merits
at
207
prisoner’s
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
claims
presents
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
application.’”
therefore
entire
motion
(quoting
vacate
the
treated
Winestock,
district
340
court’s
further proceedings.
3
as
a
successive
F.3d
at
207)).
order
and
remand
We
for
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We deny Matthews’ motion for appointment of counsel and
for oral argument.
pauperis.
legal
We
grant
leave
to
proceed
in
forma
We dispense with oral argument because the facts and
contentions
are
adequately
presented
in
the
materials
before this court and argument would not aid the decisional
process.
VACATED AND REMANDED
4
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