GAUSE v. HOOKS (2021)

Walter Timothy Gause appeals the district court's order construing his Fed. R. Civ. P. 60(b), (d) motion for relief from judgment as an unauthorized, successive 28 U.S.C. § 2254 petition and dismissing it for lack of jurisdiction.^* Our review of the record confirms that the district court properly construed Gause's motion as a successive § 2254 petition over which it lacked jurisdiction because he failed to obtain prefiling authorization from this court. See 28 U.S.C. § 2244(b)(3)(A); 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 Gause's notice of appeal and informal briefs as an application to file a second or successive § 2254 petition. Upon review, we conclude that Gause's claims do not meet the relevant standard. See 28 U.S.C. § 2244(b)(2). We therefore deny authorization to file a successive § 2254 petition.

We deny Gause's omnibus motion for judicial notice and motions to appoint counsel, for leave to use original records, and for a certificate of appealability. 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

FOOTNOTES

FOOTNOTE.   A certificate of appealability is not required to appeal the district court's jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive habeas petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.