Queen v. Brennan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NICHOLAS J. QUEEN, SR., 
Petitioner-Appellant,
v.
EDWARD BRENNAN; J. JOSEPH  No. 03-7014
CURRAN, JR., Attorney General of
the State of Maryland,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, Senior District Judge.
(CA-95-859-WMN, CR-93-366-WMN)
Submitted: September 10, 2003
Decided: September 29, 2003
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
Nicholas J. Queen, Sr., Appellant Pro Se. Kathryn Grill Graeff,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Balti-
more, Maryland, for Appellees.
2 QUEEN v. BRENNAN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nicholas J. Queen appeals the district court’s order denying his
Fed. R. Civ. P. 60(a) motion. That motion directly attacked the federal
conviction pursuant to which Queen currently is incarcerated. Under
our recent decision in United States v. Winestock ___ F.3d ___, 2003
WL 1949822 (4th Cir. Apr. 25, 2003) (No. 02-6304), the district court
should have construed Queen’s Rule 60(a) motion as a successive 28
U.S.C. § 2255 (2000) motion and dismissed it for want of jurisdiction
or transferred it to this court "so that we [might] perform our
gatekeeping function under 28 U.S.C. § 2244(b)(3) [(2000)]." See id.
at *6.* We accordingly vacate the order denying the Rule 60(a)
motion and remand to the district court with instructions to dismiss
the motion. Additionally, we construe Queen’s notice of appeal and
informal brief as an application for authorization to file a successive
§ 2255 motion and deny such authorization. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
VACATED AND REMANDED;
AUTHORIZATION DENIED
*Although Winestock addressed § 2255 motions disguised as Fed. R.
Civ. P. 60(b) motions, we believe the Winestock analysis is equally appli-
cable to § 2255 motions disguised as Rule 60(a) motions that seek to
allow the movant to "‘evade the bar against relitigation of claims pre-
sented in a prior application or the bar against litigation of claims not
presented in a prior application [for relief under 28 U.S.C. § 2255].’"
Winestock, 2003 WL 1949822, at *5.