United States v. Josand Farmer , 633 F. App'x 182 ( 2016 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 was not a true Rule 60(b) motion, but was in
substance a successive § 2255 motion. See United States v.
McRae, 793 F.3d 392, 399–400 (4th Cir. 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. See McRae, 793 F.3d at 400. In the absence
of prefiling authorization from this court, 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
Additionally, we 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). Farmer’s claims do not satisfy either of
these criteria. 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. Accordingly,
we affirm for the reasons stated by the district court.
United States v. Farmer, No. 5:10-cr-00271-FL-3 (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
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
4