United States v. Lester Fletcher

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7540
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LESTER FLETCHER, a/k/a Big Mann,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:05-cr-00179-PJM-1)
Submitted: August 20, 2015 Decided: September 4, 2015
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Lester Fletcher, Appellant Pro Se. David Ira Salem, Gina Simms,
Assistant United States Attorneys, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lester Fletcher appeals the district court’s margin orders
denying relief on his self-styled “motion for reconsideration
and for summary judgment” (“reconsideration motion”), and
denying his motion to recuse. We find that Fletcher’s motion to
recuse did not establish judicial bias by the district court
and, thus, we affirm the district court’s order. United States
v. Fletcher, No. 8:05-cr-00179-PJM-1 (D. Md. filed Aug. 14,
2015; entered Aug. 15, 2015).
In the reconsideration motion, * Fletcher asked the district
court to reconsider its previous order denying his motion to
dismiss as a successive and unauthorized 28 U.S.C. § 2255 (2012)
motion. In particular, Fletcher asserted that the district
court exhibited bias against him when it granted the Government
additional time to respond to the motion to dismiss and failed
to notify Fletcher of the extension of time. Fletcher also
asserted that the indictment against him should have been
dismissed by the district court and that, because his motion to
dismiss challenged the district court’s jurisdiction over him,
the district court erroneously construed the motion to dismiss
as a successive habeas motion.
*
Because Fletcher’s motion was filed more than 28 days
after the court’s order, it is properly construed as a Fed. R.
Civ. P. 60(b) motion, rather than a Fed. R. Civ. P. 59(e)
motion. See Fed. R. Civ. P. 59(e).
2
Fletcher’s reconsideration motion asserted both a proper
Rule 60(b) claim (i.e., district court bias in the handling of
his motion to dismiss), as well as a successive habeas claim
(i.e., whether the district court had jurisdiction over his
criminal action). We have 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.” United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003). Fletcher was not
given that opportunity here.
In this case, however, it is apparent that Fletcher’s
proper 60(b) claim is meritless and the district court already
ruled as such when it denied Fletcher’s motion to recuse.
Because Fletcher cannot establish the prerequisites for a
certificate of appealability, we deny a certificate of
appealability and dismiss the appeal, in part, as to the
district court’s order denying Fletcher’s reconsideration
motion. See Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.
2004). Because we find that the district court lacked
jurisdiction to consider the successive habeas claim in
Fletcher’s reconsideration motion, we affirm the order, in part.
3
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 IN PART;
DISMISSED IN PART
4