Walter Gause v. Erik Hooks

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-6700
WALTER TIMOTHY GAUSE,
Petitioner - Appellant,
v.
ERIK A. HOOKS, Secretary of Department of Public Safety,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Martin K. Reidinger, Chief District Judge. (3:20-cv-00306-MR)
Submitted: August 19, 2021 Decided: August 24, 2021
Before GREGORY, Chief Judge, FLOYD, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Walter Timothy Gause, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Walter Timothy Gause appeals the district court’s order construing his Fed. R. Civ.
P. 60(b), (d) motion for relief from judgment as an unauthorized, successive 28 U.S.C.
§ 2254 petition and dismissing it for lack of jurisdiction. * Our review of the record
confirms that the district court properly construed Gause’s motion as a successive § 2254
petition over which it lacked jurisdiction because he failed to obtain prefiling authorization
from this court. See 28 U.S.C. § 2244(b)(3)(A); McRae, 793 F.3d at 397-400.
Accordingly, we affirm the district court’s order.
Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208
(4th Cir. 2003), we construe Gause’s notice of appeal and informal briefs as an application
to file a second or successive § 2254 petition. Upon review, we conclude that Gause’s
claims do not meet the relevant standard. See 28 U.S.C. § 2244(b)(2). We therefore deny
authorization to file a successive § 2254 petition.
We deny Gause’s omnibus motion for judicial notice and motions to appoint
counsel, for leave to use original records, and for a certificate of appealability. 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
*
A certificate of appealability is not required to appeal the district court’s
jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive habeas
petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).
2