US v. Josand Farmer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cr-00271-FL-3, 5:12-cv-00725-FL. Copies to all parties and the district court/agency [999761860]. Mailed to: Josand Farmer. [15-7440]

Appeal: 15-7440

Doc: 7

Filed: 02/25/2016

Pg: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-7440

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSAND FARMER, a/k/a Johan Farmer,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Louise W. Flanagan,
District Judge. (5:10-cr-00271-FL-3; 5:12-cv-00725-FL)

Submitted:

January 27, 2016

Decided:

February 25, 2016

Before KING, DIAZ, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Josand Farmer, Appellant Pro Se. Jennifer E. Wells, Seth Morgan
Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-7440

Doc: 7

Filed: 02/25/2016

Pg: 2 of 4

PER CURIAM:
Josand Farmer appeals the district court’s order dismissing
his Fed. R. Civ. P. 60(b) motion 1 and denying his motions to take
judicial notice of adjudicative facts.
We have reviewed the record and conclude that Farmer’s Rule
60(b)

motion

substance
McRae,

a

793

was

not

successive
F.3d

392,

a

true

Rule

§ 2255

60(b)

motion.

399–400

(4th

motion,

See
Cir.

but

was

in

United

States

v.

2015);

see

also

Gonzalez v. Crosby, 545 U.S. 524, 531–33 (2005) (explaining how
to differentiate a true Rule 60(b) motion from an unauthorized
successive habeas motion).

Farmer is therefore not required to

obtain a certificate of appealability to appeal the district
court’s dismissal.
of

prefiling

See McRae, 793 F.3d at 400.

authorization

from

this

court,

In the absence
however,

the

district court lacked jurisdiction to hear Farmer’s successive
§ 2255

motion.

See

28

U.S.C.

§ 2244(b)(3)

(2012);

United

States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).

1

Farmer filed a self-styled motion to dismiss indictment
and void judgment for lack of subject matter jurisdiction
pursuant to Fed. R. Crim. P. 12(b) and Fed. R. Civ. P. 60(b)(4),
(6) that the district court construed as a Rule 60(b) motion and
denied as without merit and as a successive 28 U.S.C. § 2255
(2012) motion.
We treat the district court’s denial of this
motion as a dismissal because that court could not properly rule
on the merits of Farmer’s successive claims.

2

Appeal: 15-7440

Doc: 7

Filed: 02/25/2016

Additionally,

we

Pg: 3 of 4

construe

Farmer’s

notice

of

appeal

and

informal brief as an application to file a second or successive
§ 2255 motion.

Winestock, 340 F.3d at 208.

In order to obtain

authorization to file a successive § 2255 motion, a prisoner
must assert claims based on either:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h).
these

criteria.

Farmer’s claims do not satisfy either of

Therefore,

we

deny

authorization

to

file

a

successive § 2255 motion.
With respect to the district court’s denial of Farmer’s
motions to take judicial notice of adjudicative facts, we have
reviewed the record and find no reversible error.
we

affirm

for

United States

the
v.

reasons

Farmer,

stated
No.

by

the

Accordingly,

district

5:10-cr-00271-FL-3

court.

(E.D.N.C.

Aug. 31, 2015). 2
We thus affirm the district court’s order.

We dispense

with oral argument because the facts and legal contentions are
2

We also reject as without merit Farmer’s appellate
challenge to the district court’s failure to recuse itself.
See United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003).

3

Appeal: 15-7440

Doc: 7

adequately

Filed: 02/25/2016

presented

in

the

Pg: 4 of 4

materials

before

this

court

and

argument would not aid the decisional process.

AFFIRMED

4