Gregory Green v. Donald Beckwith

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 12, 2023
• Docket: 22-6157
• Status: Unpublished

Opinion

USCA4 Appeal: 22-6157 Doc: 6 Filed: 01/12/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6157

GREGORY GREEN,

Petitioner - Appellant,

v.

DONALD BECKWITH, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill. R. Bryan Harwell, Chief District Judge. (0:17-cv-02784-RBH)

Submitted: January 3, 2023 Decided: January 12, 2023

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Gregory Green, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-6157 Doc: 6 Filed: 01/12/2023 Pg: 2 of 3

PER CURIAM:

Gregory Green appeals the district court’s order denying in part and dismissing in

part his Fed. R. Civ. P. 60(b) motion, which sought relief from the district court’s prior

order dismissing his 28 U.S.C. § 2254 petition. The district court construed Green’s Rule

60(b) motion as a mixed Rule 60(b) motion/§ 2254 petition, denied the Rule 60(b) part of

the motion as untimely and without merit, and dismissed the § 2254 petition part of the

motion as an unauthorized successive petition. We affirm.

We agree with the district court’s characterization of Green’s motion as a mixed

Rule 60(b) motion/§ 2254 petition. See Richardson v. Thomas, 930 F.3d 587, 595-96 (4th

Cir. 2019) (explaining distinction between true Rule 60(b) motion and Rule 60(b) motion

that is actually successive habeas petition). As to the district court’s denial of the Rule

60(b) part of Green’s motion, we are satisfied that the district court did not abuse its

discretion in ruling that Green’s motion was untimely. 1 See Fed. R. Civ. P. 60(c)(1)

(requiring motion under Rule 60(b)(6) to be made “within a reasonable time”); Moses v.

Joyner, 815 F.3d 163, 167 (4th Cir. 2016) (holding that district court did not abuse its

discretion in finding untimely Rule 60(b)(6) motion “filed two-and-a-half years after the

[movant] knew or should have known the basis for his 60(b) claim”). We also conclude

1 Green does not require a certificate of appealability to appeal the partial denial of his Rule 60(b) motion as untimely. United States v. Williams, __ F.4th __, __, No. 19- 7354, 2023 WL 18008, at *2 n.3 (4th Cir. Jan. 3, 2023).

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that the district court properly dismissed the § 2254 petition part of Green’s motion as an

unauthorized successive petition. 2 Richardson, 930 F.3d at 596.

Accordingly, we affirm the district court’s order. 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

2 Green does not require a certificate of appealability to appeal the district court’s partial dismissal of his Rule 60(b) motion as an unauthorized successive § 2254 petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).