United States v. Herbert Marshall ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7285
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERBERT MARSHALL, a/k/a Victor King,
Defendant - Appellant.
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)
Submitted: April 23, 2020 Decided: April 28, 2020
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
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
*
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).
2