United States v. Gregory Bartko

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 20, 2022
• Docket: 20-7879
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-7879

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY BARTKO,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever, III, District Judge. (5:09-cr-00321-D-1; 5:15-cv-00042-D)

Submitted: April 26, 2022 Decided: May 20, 2022

Before DIAZ and RUSHING, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Donald Franklin Samuel, GARLAND, SAMUEL & LOEB, Atlanta, Georgia, for Appellant. Michael Gordon James, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Gregory Bartko appeals the district court’s orders construing his Fed. R. Civ. P.

60(b) motion for relief from judgment as an unauthorized, successive 28 U.S.C. § 2255

motion and dismissing it for lack of jurisdiction. * In a § 2255 proceeding, “a Rule 60(b)

motion . . . that attacks the substance of the federal court’s resolution of a claim on the

merits is not a true Rule 60(b) motion, but rather a successive” § 2255 motion, and is

therefore subject to the preauthorization requirement of 28 U.S.C. §§ 2244(b)(3)(A),

2255(h). McRae, 793 F.3d at 397 (internal quotation marks omitted). By contrast, “[a]

Rule 60(b) motion that challenges some defect in the integrity of the federal habeas

proceedings . . . is a true Rule 60(b) motion, and is not subject to the preauthorization

requirement.” Id. (internal quotation marks omitted). Where the movant “presents claims

subject to the requirements for successive applications as well as claims cognizable under

Rule 60(b),” such a pleading is a mixed Rule 60(b) motion/§ 2255 motion. Id. at 400

(internal quotation marks omitted).

In his Rule 60(b) motion, Bartko sought a remedy for a perceived flaw in his § 2255

proceeding and raised a direct attack on the district court’s resolution of his claims on the

merits. Thus, our review leads us to conclude that the district court properly construed

Bartko’s Rule 60(b) motion as a mixed Rule 60(b) motion/§ 2255 motion. See Will v.

Lumpkin, 978 F.3d 933, 938-39 (5th Cir.), cert. denied, 142 S. Ct. 579 (2020). The district

* A certificate of appealability is not required to appeal the district court’s jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive § 2255 motion. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

2 court then afforded Bartko the opportunity to elect between deleting his successive § 2255

claims or having his entire motion treated as a successive § 2255 motion. See McRae, 793

F.3d at 400; United States v. Winestock, 340 F.3d 200, 208 (4th Cir. 2003). When Bartko

declined to remove the improper claims, the court properly treated Bartko’s entire motion

as a successive § 2255 motion and dismissed it for lack of jurisdiction because he failed to

obtain prefiling authorization from this court. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h);

McRae, 793 F.3d at 397-400. Accordingly, we affirm the district court’s orders.

Consistent with our decision in Winestock, 340 F.3d at 208, we construe Bartko’s

notice of appeal and informal brief as an application to file a second or successive § 2255

motion. Upon review, we conclude that Bartko’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