United States v. Kenneth Johnson ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7611
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH RAY JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:07-cr-00316-LMB-1; 1:16-cv-00843-
LMB)
Submitted: April 27, 2021 Decided: April 30, 2021
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth Ray Johnson, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kenneth Ray Johnson appeals the district court’s order denying his motion for
reconsideration of the district court’s order denying relief on his 28 U.S.C. § 2255 motion.
We have reviewed the record and conclude that the district court correctly concluded that
Johnson’s motion was not a true Fed. R. Civ. P. 60(b) motion, but in substance a successive
§ 2255 motion. See United States v. McRae, 793 F.3d 392, 397-99 (4th Cir. 2015); see
also Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005) (explaining how to differentiate true
Rule 60(b) motion from unauthorized successive habeas corpus motion). Therefore, we
conclude that Johnson is not required to obtain a certificate of appealability to appeal the
district court’s order. See McRae, 793 F.3d at 397-99. However, in the absence of prefiling
authorization, the district court lacked jurisdiction to hear a successive § 2255 motion. See
28 U.S.C. § 2244(b)(3).
Accordingly, we affirm the district court’s order. 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
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