United States v. Marsha King

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6533
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARSHA KING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Raymond A. Jackson, District Judge. (2:14-cr-00065-RAJ-DEM-1; 2:17-cv-
00644-RAJ)
Submitted: October 20, 2020 Decided: October 23, 2020
Before GREGORY, Chief Judge, DIAZ, Circuit Judge, and SHEDD, Senior Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam opinion.
Marsha King, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marsha King seeks to appeal the district court’s order denying her self-styled Fed.
R. Civ. P. 60(b)(6) “Motion to Vacate the Defendant’s Conviction” (“Rule 60(b)(6)
motion”). King also challenges the court’s orders denying King’s subsequent Rule 60(b)
motions to vacate the court’s earlier order dismissing her 28 U.S.C. § 2255 motion and her
motion to compel an Assistant United States Attorney to submit an affidavit in her case.
We dismiss in part and affirm in part.
The Rule 60(b)(6) motion clearly sought to attack the validity of King’s convictions
and, having previously filed an unsuccessful § 2255 motion, the district court was obligated
to construe this motion as a successive habeas motion for which King required this court’s
prefiling authorization. See United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003)
(holding that a district court must treat a Rule 60(b) motion as a successive habeas motion
if failing to do so would allow the applicant “to evade the bar against relitigation of claims
presented in a prior application or the bar against litigation of claims not presented in a
prior application” (internal quotation marks omitted)). Thus, that order is not appealable
unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B). See generally United States v. McRae, 793 F.3d 392, 400 & n.7 (4th Cir.
2015).
A certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies
relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable
jurists could find the district court’s assessment of the constitutional claims debatable or
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wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both that the dispositive
procedural ruling is debatable and that the motion states a debatable claim of the denial of
a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). We have independently reviewed the record and
conclude that King has not made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal in part. *
King’s subsequent Rule 60(b) motions alleged a defect in the collateral review
process and, thus, were “true” Rule 60(b) motions that could be adjudicated by the district
court without prior authorization from this court. Winestock, 340 F.3d at 206-07. But
because the motions did not meet the requirements for Rule 60(b) relief, we discern no
error in the court’s summary rejection of the motions. We also discern no error in the
court’s denial of King’s motion to compel. We thus affirm the remaining orders. United
States v. King, Nos. 2:14-cr-00065-RAJ-DEM-1; 2:17-cv-00644-RAJ (E.D. Va. Feb. 19,
2020).
Based on the foregoing, we deny a certificate of appealability and dismiss this
appeal in part, and affirm in part. We dispense with oral argument because the facts and
*
Consistent with our decision in Winestock, 340 F.3d at 208, we construe King’s
notice of appeal and informal brief as an application to file a second or successive § 2255
motion. Upon review, we conclude that King’s claims do not meet the relevant standard.
See 28 U.S.C. § 2255(h). We therefore deny authorization to file a successive § 2255
motion.
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legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
DISMISSED IN PART;
AFFIRMED IN PART
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