United States v. Thomas Shrader ( 2020 )


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  •                                      UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 20-6728
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    THOMAS CREIGHTON SHRADER,
    Defendant - Appellant.
    Appeal from the United States District Court for the Southern District of West Virginia, at
    Bluefield. Irene C. Berger, District Judge. (1:09-cr-00270-1; 1:16-cv-05559)
    Submitted: September 22, 2020                               Decided: September 25, 2020
    Before NIEMEYER, KEENAN, and FLOYD, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Thomas Creighton Shrader, Appellant Pro Se.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Thomas Creighton Shrader appeals the district court’s order construing his Fed. R.
    Civ. P. 60(b) motion for relief from judgment as an unauthorized, successive 28 U.S.C.
    § 2255 motion and denying it on that basis. 1 Our review of the record confirms that the
    district court properly construed Shrader’s Rule 60(b) motion as a successive § 2255
    motion over which it lacked jurisdiction because he failed to obtain prefiling authorization
    from this court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); United States v. McRae,
    
    793 F.3d 392
    , 397-400 (4th Cir. 2015). Accordingly, we affirm the district court’s order
    on that ground. 2 See 
    McRae, 793 F.3d at 400
    (holding that certificate of appealability is
    not required to appeal district court’s categorization of Rule 60(b) motion as unauthorized,
    successive § 2255 motion).
    Consistent with our decision in United States v. Winestock, 
    340 F.3d 200
    , 208
    (4th Cir. 2003), we construe Shrader’s notice of appeal and informal brief as an application
    to file a second or successive § 2255 motion. Upon review, we conclude that Shrader’s
    1
    The district court also found that, to the extent Shrader was seeking to reopen his
    2010 conviction for possession of a firearm by a convicted felon, he could not do so
    because Rule 60(b) applies to civil cases only. Shrader clarifies on appeal that he is not
    seeking to reopen his conviction but to reopen the § 2255 motion that the district court
    dismissed in 2016.
    2
    The district court, however, incorrectly concluded that Shrader’s Rule 60(b)(6)
    motion is barred by the one-year filing deadline. See Fed. R. Civ. P. 60(c)(1) (providing
    that Rule 60(b)(1)-(3) motions must be made “no more than a year after the entry of the
    judgment or order of the date of the proceeding”). We take no position as to whether
    Shrader’s motion was “made within a reasonable time.”
    Id. 2
    claim does not meet the relevant standard. See 28 U.S.C. § 2255(h). We therefore deny
    authorization to file a successive § 2255 motion.
    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
    3
    

Document Info

Docket Number: 20-6728

Filed Date: 9/25/2020

Precedential Status: Non-Precedential

Modified Date: 9/25/2020