Opinion
No. 19-7285
04-28-2020
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. HERBERT MARSHALL, a/k/a Victor King, Defendant - Appellant.
Herbert Marshall, Appellant Pro Se.
UNPUBLISHED
Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Senior District Judge. (3:08-cr-00537-JFA-1; 3:18-cv-01988-JFA) Before WILKINSON, FLOYD, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Herbert Marshall, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Herbert Marshall appeals the district court's order construing a postjudgment motion he purported to bring under Fed. R. Civ. P. 60 as an unauthorized, successive 28 U.S.C. § 2255 (2018) motion and dismissing it on that basis. Our review of the record confirms that the district court properly construed Marshall's motion as a successive § 2255 motion over which it lacked jurisdiction because he failed to obtain prefiling authorization from this court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h) (2018); McRae, 793 F.3d at 397-400. Accordingly, we affirm the district court's order.
A certificate of appealability is not required to appeal the district court's jurisdictional categorization of a Rule 60 motion as an unauthorized, successive § 2255 motion. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015). --------
Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003), we construe Marshall's notice of appeal and informal brief as an application to file a second or successive § 2255 motion. Upon review, we conclude that Marshall'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.
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