United States v. Swain Clarke

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 20, 2023
• Docket: 22-7286
• Status: Unpublished

Opinion

USCA4 Appeal: 22-7286 Doc: 7 Filed: 01/20/2023 Pg: 1 of 2

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-7286

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SWAIN CLARKE, a/k/a Swain Clark,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. James K. Bredar, Chief District Judge. (1:15-cr-00503-JKB-1; 1:19-cv-00815-JKB)

Submitted: January 17, 2023 Decided: January 20, 2023

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Swain Clarke, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-7286 Doc: 7 Filed: 01/20/2023 Pg: 2 of 2

PER CURIAM:

Swain Clarke appeals the district court’s order 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 without prejudice for lack of jurisdiction. ∗ Our review of the record

confirms that the district court properly construed Clarke’s Rule 60(b) 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); 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 Clarke’s notice of appeal and informal brief as an application

to file a second or successive § 2255 motion. Upon review, we conclude that Clarke’s

claim does 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(b) motion as an unauthorized, successive § 2255 motion. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).