United States of America v. Eric Bernard Dixon, a/k/a Fat Cat

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7963
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ERIC BERNARD DIXON, a/k/a Fat Cat,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:10-cr-00649-PMD-1; 2:13-cv-00300-PMD)
Submitted: September 10, 2015 Decided: September 24, 2015
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Eric Bernard Dixon, Appellant Pro Se. Matthew J. Modica,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Bernard Dixon seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion seeking relief
from the judgment denying his 28 U.S.C. § 2255 (2012) motion.
We deferred action on this appeal pending decision in United
States v. McRae, 793 F.3d 392 (4th Cir. 2015). For the reasons
that follow, we vacate the district court’s order and remand.
A prisoner cannot appeal a final order in a § 2255
proceeding unless a circuit justice or judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B)
(2012). Generally, a COA is required to appeal an order denying
a Rule 60(b) motion in a § 2255 proceeding. Reid v. Angelone,
369 F.3d 363, 369 (4th Cir. 2004). We recently clarified,
however, that a COA is not required in the limited circumstance
in which the district court dismisses a Rule 60(b) motion as an
unauthorized, successive habeas petition. McRae, 793 F.3d at
400.
To file a successive § 2255 motion in the district court, a
prisoner must first obtain preauthorization from this court. 28
U.S.C. §§ 2244(b)(3)(A), 2255(h) (2012). Although a prisoner is
permitted to seek Rule 60(b) relief from a district court’s
judgment in a § 2255 proceeding, “a district court has no
discretion to rule on a Rule 60(b) motion that is functionally
equivalent to a successive [§ 2255] application.” United States

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v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003). Where a Rule
60(b) motion “challenges some defect in the integrity of the
federal habeas proceedings,” it is a true Rule 60(b) motion and
may be reviewed without preauthorization. McRae, 793 F.3d at
397 (internal quotation marks omitted). Where the motion
“attacks the substance of the federal court’s resolution of a
claim on the merits,” however, it is the functional equivalent
of a successive habeas petition and therefore subject to the
§ 2255(h) preauthorization requirement. Id. (internal quotation
marks omitted).
In McRae, we reaffirmed our prior holding that, where a
Rule 60(b) 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.’”
Id. at 400 (quoting Winestock, 340 F.3d at 207). Dixon’s Rule
60(b) motion was such a mixed motion, challenging both the
district court’s resolution of some of his § 2255 claims on
their merits and arguing that the district judge should have
recused himself from the § 2255 proceedings. The district court
denied the motion summarily without providing Dixon the
opportunity to make the Winestock election.

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Accordingly, we conclude that the COA requirement does not
apply to the instant appeal, and we vacate the district court’s
order and remand for further proceedings. 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.
VACATED AND REMANDED

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