United States v. Michael Speed , 675 F. App'x 341 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7127
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL SPEED,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:10-cr-00700-JFM-1; 1:16-cv-02421-JFM)
Submitted: January 19, 2017 Decided: February 2, 2017
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
Michael Speed, Appellant Pro Se. Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Speed appeals the district court’s order
adjudicating his 28 U.S.C. § 2255 (2012) motion. In the order,
the district court granted relief, in part, by directing vacatur
and reentry of Speed’s criminal judgment so as to afford Speed
an opportunity to file a criminal appeal, but denied Speed’s
remaining habeas claims on their merits. The district court
issued a certificate of appealability.
The district court did not err in reentering Speed’s
criminal judgment to begin his appellate period anew. Because
Speed’s remaining habeas claims could, at least arguably, be
raised in Speed’s criminal appeal or a habeas motion, however,
the district court should not have disposed of the remaining
claims with prejudice. Cf. In re Goddard, 170 F.3d 435, 437
(4th Cir. 1999) (holding that when a prisoner has wrongly been
denied his right to a direct appeal, he should not be forced to
raise all possible claims against his criminal judgment in his
first § 2255 motion and thereby “make the substantive objections
to his conviction and sentence that his lawyer would have made
for him on direct appeal”).
Thus, although we affirm the district court’s order, we
modify the dismissal of Speed’s remaining habeas claims to be
without prejudice. We also deny Speed’s motions for appointment
of counsel and for a stay of proceedings. We dispense with oral
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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 AS MODIFIED
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