United States of America v. Michael D. Pahutski

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6818
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL D. PAHUTSKI,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:07-cr-00211-MR-1; 3:12-cv-00308-MR)
Submitted: October 20, 2015 Decided: October 22, 2015
Before MOTZ, KEENAN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Pahutski, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael D. Pahutski appeals the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
As we recently held in United States v. McRae, a certificate of
appealability is not required in order for this court to address
the district court’s jurisdictional categorization of a “Rule
60(b) motion as an unauthorized successive habeas petition.”
793 F.3d 392, 400 (4th Cir. 2015). Our review of the record
confirms that Pahutski sought successive § 2255 relief, without
authorization from this court, and we therefore hold that the
district court properly concluded that it lacked jurisdiction to
consider the subject motion. 28 U.S.C. § 2244(b)(3)(A) (2012).
Thus, we affirm the district court’s order.
Additionally, we construe Pahutski’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion. United States v. Winestock, 340 F.3d 200, 208
(4th Cir. 2003). In order to obtain authorization to file a
successive § 2255 motion, a prisoner must assert claims based on
either:
(1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have
found the movant guilty of the offense; or

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(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court,
that was previously unavailable.
28 U.S.C. § 2255(h). Pahutski’s claims do not satisfy either of
these criteria. Therefore, we 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

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