UNITED STATES of America, Plaintiff - Appellee, v. Herbert MARSHALL, a/k/a Victor King, Defendant - Appellant.
Decided: April 28, 2020
Before WILKINSON, FLOYD, and THACKER, Circuit Judges.
Herbert Marshall, Appellant Pro Se.
Herbert Marshall appeals the district court's order construing a postjudgment motion he purported to bring under Fed. R. Civ. P. 60 as an unauthorized, successive 28 U.S.C. § 2255 (2018) motion and dismissing it on that basis.* Our review of the record confirms that the district court properly construed Marshall's motion as a successive § 2255 motion over which it lacked jurisdiction because he failed to obtain prefiling authorization from this court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h) (2018); McRae, 793 F.3d at 397-400. Accordingly, we affirm the district court's order.
Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), we construe Marshall's notice of appeal and informal brief as an application to file a second or successive § 2255 motion. Upon review, we conclude that Marshall's claims do not meet the relevant standard. See 28 U.S.C. § 2255(h). We therefore deny authorization to file a successive § 2255 motion.
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.
FOOTNOTE. A certificate of appealability is not required to appeal the district court's jurisdictional categorization of a Rule 60 motion as an unauthorized, successive § 2255 motion. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).
Affirmed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.
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