United States v. Thomas LaBuwi, II

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS WALKER LABUWI, II,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilson. James C. Fox, Senior
District Judge. (7:00-cr-00078-F-8)
Submitted: August 24, 2015 Decided: September 4, 2015
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas Walker LaBuwi, II, Appellant Pro Se. Jennifer P. May-
Parker, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Walker LaBuwi, II, appeals the district court’s
orders denying his petition for a writ of error audita querela
as an unauthorized successive motion under 28 U.S.C. § 2255
(2012), and dismissing his Fed. R. Civ. P. 60(b) motion for
reconsideration. After review, we affirm the district court’s
order denying LaBuwi’s petition for audita querela for the
reasons stated by the district court. United States v. LaBuwi,
No. 7:00-cr-00078-F-8 (E.D.N.C. May 7, 2013).
To the extent that audita querela petition is an
unauthorized successive § 2255 motion, we deny LaBuwi’s motion
for a certificate of appealability and dismiss the appeal. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). We conclude
that LaBuwi’s Rule 60(b) motion was not a successive § 2255
motion, see United States v. Winestock, 340 F.3d 200, 207 (4th
Cir. 2003) (“[A] motion seeking a remedy for some defect in the
collateral review process will generally be deemed a proper
motion to reconsider.”), but conclude the district court’s
denial of the motion does not warrant full review after grant of
a certificate of appealability. See Reid v. Angelone, 369 F.3d
363, 369 (4th Cir. 2004), abrogated on other grounds by United
States v. McRae, __ F.3d __, __, No. 13-6878, 2015 WL 4190665,
at *6 n.7 (4th Cir. July 13, 2015).
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Accordingly, we affirm in part and dismiss in part. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the material before this
court and argument will not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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