United States v. Richard Schmidt , 571 F. App'x 224 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-8014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD ARTHUR SCHMIDT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:04-cr-00052-JFM-1; 1:13-cv-03370-JFM)
Submitted: April 28, 2014 Decided: May 13, 2014
Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Richard Arthur Schmidt, Appellant Pro Se. Andrew George Warrens
Norman, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Arthur Schmidt seeks to appeal the district
court’s order dismissing his 28 U.S.C. § 2255 (2012) motion for
failure to receive authorization from this court to file a
successive motion. For the reasons that follow, we grant a
certificate of appealability, vacate the district court’s
judgment and remand for further proceedings.
In 2005, Schmidt was convicted of traveling with
intent to engage in a sexual act with a minor and engaging in
illicit sexual conduct with a minor, in violation of 18 U.S.C.
§ 2423(b), (c) (2012). In April 2007, Schmidt filed a motion
pursuant to Fed. R. Civ. P. 60(b)(4), claiming that the district
court lacked subject matter jurisdiction over his case. 1 The
district court construed the filing as a § 2255 motion and
summarily denied it without an explanation.
Schmidt subsequently filed numerous post-conviction
motions, which were all construed as § 2255 motions and
dismissed as successive. About one year ago, Schmidt filed a 28
U.S.C. § 2244 motion (2012) seeking authorization to file a
successive § 2255 motion, specifically arguing that, when the
district court re-characterized his Fed. R. Civ. P. 60(b)(4)
1
Notably, the motion stated that “in no way should it be
construed” as a § 2255 motion.
2
motion as a § 2255 motion in 2007, he “was never notified . . .
nor given the opportunity to withdraw the motion,” in violation
of the Supreme Court’s holding in Castro v. United States, 540
U.S. 375 (2003).
Because the district court had not provided Schmidt
with notice that it was re-characterizing his Rule 60(b)(4)
motion as a § 2255 motion, nor did it provide Schmidt with the
opportunity to either withdraw or amend the motion, we concluded
that the 2007 motion could not be counted as Schmidt’s first
§ 2255 motion. See Castro, 540 U.S. at 383. Moreover,
Schmidt’s subsequent motions for post-conviction relief were all
dismissed without prejudice for being successive and, therefore,
could not count as prior § 2255 motions for purposes of the
limitations on successive § 2255 motions. See In re Goddard,
170 F.3d 435, 438 (4th Cir. 1999) (citing cases in which post-
conviction proceedings dismissed on certain procedural grounds
were not counted in determining whether subsequent motions are
successive). Accordingly, we denied as unnecessary the motion
for authorization to file a second or successive motion. In re:
Schmidt, No. 13-168 (Mar. 29, 2013).
Months later, Schmidt filed the underlying § 2255
motion in the district court. Although Schmidt attached a copy
of this court’s order stating authorization was unnecessary to
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file a § 2255 motion, the district court summarily dismissed the
motion as successive.
Because the underlying § 2255 motion was not a second
or successive motion within the meaning of § 2255, the district
court erred by holding that Schmidt was required to obtain an
order from this court authorizing the district court to consider
the motion. Consequently, we grant Schmidt’s motion to proceed
in forma pauperis on appeal, grant a certificate of
appealability, vacate the order of the district court, and
remand for further proceedings. 2 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.
VACATED AND REMANDED
2
We, of course, express no opinion as to the timeliness or
merits of Schmidt’s claims.
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