                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-6797


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RODERICK LAMAR WILLIAMS, a/k/a Rox,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Frank D. Whitney, Chief District Judge. (5:03-cr-00004-FDW-DSC-8;
5:08-cv-00041-FDW)


Submitted: January 17, 2019                                  Decided: February 20, 2019


Before GREGORY, Chief Judge, KEENAN, Circuit Judge, and SHEDD, Senior Circuit
Judge.


Affirmed in part, vacated and remanded in part by unpublished per curiam opinion.


Jeffrey Michael Brandt, ROBINSON & BRANDT, PSC, Covington, Kentucky, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.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

       Roderick Lamar Williams appeals the district court’s order construing his Fed. R.

Civ. P. 60(b)(3), (6) motions as unauthorized, successive 28 U.S.C. § 2255 (2012)

motions and dismissing for lack of jurisdiction.       He also appeals the court’s order

denying his Fed. R. Civ. P. 59(e) motion to reconsider the dismissal of his Rule 60(b)(3)

motion. We affirm in part and vacate and remand in part.

       We review de novo a district court’s order construing a Rule 60(b) motion as an

unauthorized, successive § 2255 motion, and a certificate of appealability is not required.

United States v. McRae, 793 F.3d 392, 397, 400 (4th Cir. 2015). Although a prisoner is

permitted to seek Rule 60(b) relief from the district court’s judgment on a § 2255 motion,

“a district court has no discretion to rule on a Rule 60(b) motion that is functionally

equivalent to a successive” § 2255 motion. United States v. Winestock, 340 F.3d 200,

206 (4th Cir. 2003). “[A] motion directly attacking the prisoner’s conviction or sentence

will usually amount to a successive application.” Id. at 207. “Thus, a brand-new, free-

standing allegation of constitutional error in the underlying criminal judgment will

virtually always implicate the rules governing successive applications,” and “new legal

arguments or proffers of additional evidence will usually signify that the prisoner is not

seeking relief available under Rule 60(b) but is instead continuing his collateral attack on

his conviction or sentence.” Id. 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.” McRae, 793 F.3d at 397

(internal quotation marks omitted).

                                             2
       Initially, Williams has not challenged the portion of the court’s order construing

his Rule 60(b)(6) motion as an unauthorized, successive § 2255 motion and dismissing

for lack of jurisdiction. Accordingly, he has forfeited appellate review, and we affirm

that portion of the court’s order. See 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.”).

       In his Rule 60(b)(3) motion, Williams asserted that the Government made several

material misrepresentations during the original § 2255 proceedings that prevented him

from fully and fairly presenting certain ineffective assistance of counsel claims.

Specifically, the Government stated in its responses opposing Williams’ § 2255 motion

and motions to supplement that there was no evidence suggesting the DNA analysis,

which tied Williams to a crime scene, was unreliable, deficient, or inaccurate. Williams

claimed that he had recently discovered documents proving that the DNA analyst was not

credible and that the Government knew about these documents before Williams filed his

§ 2255 motion. He argued that the Government’s material misrepresentations caused the

district court to deny his § 2255 motion and asked the court to set aside its order, reopen

the case, and conduct an evidentiary hearing.

       The district court found that Williams was not seeking to remedy a defect in the

§ 2255 proceedings but was attempting to relitigate old arguments and assert new

arguments for postconviction relief. Accordingly, the court construed the Rule 60(b)(3)

motion as an unauthorized, successive § 2255 motion and dismissed for lack of

jurisdiction.

                                               3
       We conclude that Williams’ claim was properly raised under Rule 60(b)(3) and

did not amount to a second-or-successive claim for postconviction relief. Although he

relied on newly discovered evidence, he did not directly challenge his conviction or

sentence. Instead, he alleged “fraud . . . , misrepresentation, or misconduct by [the]

opposing party.” Fed. R. Civ. P. 60(b)(3); see In re Pickard, 681 F.3d 1201 (10th Cir.

2012) (concluding that “the claim of prosecutorial misconduct in the § 2255 proceedings

is a proper Rule 60(b) claim that should be addressed in the first instance by the district

court”). He did not seek to raise a new claim but contended that the Government’s

purported misrepresentations during the § 2255 proceedings prevented him from fully

and fairly presenting certain ineffective assistance of counsel claims.

       We note that the district court observed that Williams’ Rule 60(b)(3) motion was

untimely because he did not file it within a year of the order denying § 2255 relief. We

decline to affirm the court’s jurisdictional ruling on timeliness grounds because “the Rule

60(b) one-year filing deadline is an affirmative defense,” not a jurisdictional bar, and

Williams must be given the “opportunity to make a case for timely filing.” McRae, 793

F.3d at 401.

       Accordingly, we vacate the portion of the court’s order construing Williams’ Rule

60(b)(3) as an unauthorized, successive § 2255 motion and dismissing for lack of

jurisdiction, and we remand for further proceedings. * We dispense with oral argument


       *
         Because “the merits of [Williams’] claims are best addressed by the district court
in the first instance,” McRae, 793 F.3d at 401, we express no opinion on the proper
disposition of the Rule 60(b)(3) motion. Moreover, because we vacate and remand the
(Continued)
                                             4
because the facts and legal contentions are adequately presented in the materials before

this court and argument would not aid the decisional process.

                                                             AFFIRMED IN PART,
                                                 VACATED AND REMANDED IN PART




portion of the court’s order dismissing Williams’ Rule 60(b)(3) motion, we decline to
consider his appeal of the order denying his Rule 59(e) motion to reconsider that
decision.


                                            5
