United States v. Ramone Ethridge , 612 F. App'x 685 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6481
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAMONE HAISON ETHRIDGE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:10-cr-00206-BO-2; 5:13-cv-00312-BO)
Submitted: August 13, 2015 Decided: August 18, 2015
Before WILKINSON, Circuit Judge, and HAMILTON and DAVIS, Senior
Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ramone Haison Ethridge, Appellant Pro Se. Shailika S. Kotiya,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ramone Haison Ethridge appeals from the district court’s
March 20, 2015, order dismissing as a successive 28 U.S.C.
§ 2255 (2012) motion his self-styled motion for correction under
Fed. R. Civ. P. 60(b). We vacate the district court’s order and
remand for further proceedings.
“[A] Rule 60(b) motion in a habeas proceeding that attacks
‘the substance of the federal court’s resolution of a claim on
the merits’ is not a true Rule 60(b) motion, but rather a
successive habeas [application]” and is subject to the
preauthorization requirement of 28 U.S.C. § 2244(b)(3)(A) (2012)
for successive applications. United States v. McRae, ___ F.3d
___, ___, No. 13-6878, 2015 WL 4190665, at *4 (4th Cir. July 13,
2015) (quoting Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)).
By contrast, a “Rule 60(b) motion that challenges ‘some defect
in the integrity of the federal habeas proceedings’ . . . is a
true Rule 60(b) motion, and is not subject to the
preauthorization requirement.” Id. (quoting Gonzalez, 545 U.S.
at 531-32). Where, however, a motion “‘presents claims subject
to the requirements for successive applications as well as
claims cognizable under Rule 60(b),’” such a motion is a mixed
Rule 60(b)/§ 2255 motion. See id. at *6 (quoting
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)).
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In his motion for correction, Ethridge sought a remedy for
perceived flaws in his § 2255 proceeding and raised direct
attacks on his conviction and sentence. Accordingly, the motion
was a mixed Rule 60(b)/§ 2255 motion. See McRae, 2015 WL
4190665, at *4, *6; Gonzalez, 545 U.S. at 532 n.4 (holding that
a movant files a true Rule 60(b) motion “when he . . . asserts
that a previous ruling which precluded a merits determination
was in error”); Winestock, 340 F.3d at 207 (stating that “a
motion directly attacking the prisoner’s conviction or sentence
will usually amount to a successive application”).
The district court did not afford Ethridge the opportunity
to elect between deleting his successive § 2255 claims from his
true Rule 60(b) claims or having his entire motion treated as a
successive § 2255 motion. See McRae, 2015 WL 4190665, at *6
(“This Court has made clear that ‘[w]hen [a] motion presents
claims subject to the requirements for successive applications
as well as claims cognizable under Rule 60(b), the district
court should afford the applicant an opportunity to elect
between deleting the improper claims or having the entire motion
treated as a successive application.’” (quoting Winestock,
340 F.3d at 207)). We therefore vacate the district court’s
order and remand for further proceedings.
We deny Ethridge’s motion to recuse and dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
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