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    1) Christopher Damon Spencer appealed the denial of his motion for reconsideration, which challenged his conviction, sentence, and prior denial of his 28 U.S.C. § 2255 motion. 2) The district court found that Spencer's challenges to the § 2255 proceedings were meritless and that his challenges to his conviction and sentence constituted a successive § 2255 petition that the court lacked jurisdiction over. 3) However, the Fourth Circuit recently held in a similar case that when a motion includes both claims cognizable under Rule 60(b) and improper successive claims, the district court must allow the applicant to elect which claims to delete or have the entire motion treated as a successive application. The district

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    Filed: 2015-10-14 Precedential Status: Non-Precedential Docket: 14-7787

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    1) Christopher Damon Spencer appealed the denial of his motion for reconsideration, which challenged his conviction, sentence, and prior denial of his 28 U.S.C. § 2255 motion. 2) The district court found that Spencer's challenges to the § 2255 proceedings were meritless and that his challenges to his conviction and sentence constituted a successive § 2255 petition that the court lacked jurisdiction over. 3) However, the Fourth Circuit recently held in a similar case that when a motion includes both claims cognizable under Rule 60(b) and improper successive claims, the district court must allow the applicant to elect which claims to delete or have the entire motion treated as a successive application. The district

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    2 views3 pages

    United States v. Christopher Spencer, 4th Cir. (2015)

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    Scribd Government Docs
    1) Christopher Damon Spencer appealed the denial of his motion for reconsideration, which challenged his conviction, sentence, and prior denial of his 28 U.S.C. § 2255 motion. 2) The district court found that Spencer's challenges to the § 2255 proceedings were meritless and that his challenges to his conviction and sentence constituted a successive § 2255 petition that the court lacked jurisdiction over. 3) However, the Fourth Circuit recently held in a similar case that when a motion includes both claims cognizable under Rule 60(b) and improper successive claims, the district court must allow the applicant to elect which claims to delete or have the entire motion treated as a successive application. The district

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 14-7787

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    CHRISTOPHER DAMON SPENCER, a/k/a Dog,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of Virginia, at Norfolk.
    Rebecca Beach Smith, Chief
    District Judge. (2:11-cr-00030-RBS-FBS-1)

    Submitted:

    September 28, 2015

    Decided:

    October 14, 2015

    Before MOTZ, WYNN, and DIAZ, Circuit Judges.

    Vacated and remanded by unpublished per curiam opinion.

    Christopher Damon Spencer, Appellant Pro Se.


    Sherrie Scott
    Capotosto, Assistant United States Attorney, Norfolk, Virginia,
    for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Christopher Damon Spencer appeals the denial of his motion
    for reconsideration pursuant to Fed. R. Civ. P. 59(e), 60(b).
    This

    motion

    raised

    challenges

    to

    Spencers

    conviction

    and

    sentence as well as to the adjudication of his prior 28 U.S.C.


    2255 (2012) motion.

    The district court found that Spencers

    challenges to the 2255 proceedings were meritless and that, to


    the

    extent

    Spencers

    motion

    challenged

    his

    conviction

    and

    sentence, that motion was a successive 2255 petition that the


    district court lacked jurisdiction to hear.

    See United States

    v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003).


    [W]hen
    requirements

    motion

    for

    presents

    successive

    claims

    applications

    subject
    as

    well

    to
    as

    the

    claims

    cognizable under Rule 60(b), the district court should afford


    the

    applicant

    improper

    an

    claims

    opportunity
    or

    having

    successive application.
    400

    (4th

    omitted).

    Cir.

    2015)

    to

    the

    elect
    entire

    between
    motion

    deleting
    treated

    the

    as

    United States v. McRae, 793 F.3d 392,

    (brackets

    and

    internal

    quotation

    marks

    Because the district court, which did not have the

    benefit of our decision in McRae, did not afford Spencer such an


    opportunity here, we vacate its order and remand the case for
    further proceedings consistent with McRae.
    oral

    argument

    because

    the

    facts

    and

    legal

    We dispense with
    contentions

    are

    adequately

    presented

    in

    the

    materials

    before

    this

    court

    and

    argument would not aid the decisional process.


    VACATED AND REMANDED

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