United States v. Patrick Smith

Opinion

USCA4 Appeal: 22-7020 Doc: 14 Filed: 05/14/2024 Pg: 1 of 5

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-6820

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

PATRICK SMITH, a/k/a Pee,

Defendant - Appellant.

No. 22-7020

Appeals from the United States District Court for the District of Maryland, at Baltimore. Ellen Lipton Hollander, Senior District Judge. (1:18-cr-00017-ELH-1; 1:20-cv-02609- ELH)

Submitted: October 27, 2023 Decided: May 14, 2024 USCA4 Appeal: 22-7020 Doc: 14 Filed: 05/14/2024 Pg: 2 of 5

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

No. 22-6820, dismissed; No. 22-7020, vacated and remanded with instructions by unpublished per curiam opinion.

Patrick Smith, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In these consolidated appeals, Patrick Smith seeks to appeal the district court’s

orders denying relief on his 28 U.S.C. § 2255 motion and denying his motion for recusal,

denying his postjudgment motions to amend his § 2255 motion, and denying on the merits

his Fed. R. Civ. P. 60(b) motion for relief from the court’s prior order denying his § 2255

motion. The order denying relief on Smith’s § 2255 motion is not appealable unless a

circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B).

A certificate of appealability will not issue absent “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies

relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable

jurists could find the district court’s assessment of the constitutional claims debatable or

wrong. See Buck v. Davis, 580 U.S. 100, 115-17 (2017). When the district court denies

relief on procedural grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable and that the motion states a debatable claim of the denial of

a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

Limiting our review of the record to the issues raised in Smith’s informal briefs, we

conclude that Smith has not made the requisite showing. See 4th Cir. R. 34(b); see also

Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important

document; under Fourth Circuit rules, our review is limited to issues preserved in that

brief.”). Moreover, the claims Smith raised in his postjudgment motions to amend

challenged the validity of his conviction, and, thus, the motions should have been construed

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as successive § 2255 motions. See Banister v. Davis, 140 S. Ct. 1698, 1704-11 (2020).

Similarly, Smith’s allegation in his Rule 60(b) motion that an attorney representing him

made a mistake in transcribing an affidavit that Smith previously submitted to the court in

support of his § 2255 claims did not challenge a defect in the proceeding, “but in effect

ask[ed] for a second chance to have the merits determined favorably.” Gonzalez v. Crosby,

545 U.S. 524, 532 n.5 (2005). Therefore, Smith’s motion was not a true Rule 60(b) motion,

but a successive § 2255 motion. See id. at 531-32; see also United States v. McRae, 793

F.3d 392, 397-99 (4th Cir. 2015). Absent prefiling authorization from this court, the district

court lacked jurisdiction to entertain Smith’s successive § 2255 motions. See 28 U.S.C.

§§ 2244(b)(3), 2255(h).

Smith also challenges the district court judge’s refusal to recuse. We review a

district court judge’s recusal decision for abuse of discretion. United States v. Stone, 866

F.3d 219, 229 (4th Cir. 2017). Here, Smith’s asserted grounds for recusal amounted to

mere dissatisfaction with the district court’s rulings, which is not a sufficient basis for

recusal. See Belue v. Leventhal, 640 F.3d 567, 572-74 (4th Cir. 2011) (discussing valid

bases for bias or partiality motion); see also United States v. Lentz, 524 F.3d 501, 530 (4th

Cir. 2008) (“The presiding judge is not ... required to recuse h[er]self simply because of

unsupported, irrational or highly tenuous speculation.” (internal quotation marks omitted)).

The district court judge therefore did not abuse her discretion in declining Smith’s request

for recusal.

Accordingly, in No. 22-6820, we deny a certificate of appealability and dismiss

Smith’s appeal of the district court’s orders denying relief on his § 2255 motion and

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denying his motions to amend. In No. 22-7020, we vacate the district court’s order denying

Smith’s Rule 60(b) motion and remand with instructions to dismiss for lack of subject

matter jurisdiction. * See Bixby v. Stirling, 90 F.4th 140, 155 (4th Cir. 2024) (holding, when

Rule 60(b) movant seeks “permission to raise new and revised claims in a second or

successive” habeas motion, district court should “dismiss[]—not den[y]—the 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.

No. 22-6820, DISMISSED; No. 22-7020, VACATED AND REMANDED WITH INSTRUCTIONS

* A certificate of appealability is not required to appeal the district court’s order denying a Rule 60(b) motion that is in substance a successive § 2255 motion. See McRae, 793 F.3d at 400.