                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 15-7728


MICHAEL FORMICA,

                Petitioner - Appellant,

          v.

SUPERINTENDENT OF THE CENTRAL VIRGINIA REGIONAL JAIL; WARDEN
OF THE POCAHONTAS STATE CORRECTIONAL CENTER,

                Respondents - Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Michael F. Urbanski, District
Judge. (7:14-cv-00357-MFU-JCH)


Submitted:   March 15, 2016                 Decided:   March 29, 2016


Before KING, AGEE, and THACKER, Circuit Judges.


Dismissed in part, vacated in part, and remanded by unpublished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


Michael Formica, Appellant Pro Se.       John Chadwick Johnson,
Christopher Carey Newton, FRITH, ANDERSON & PEAKE, PC, Roanoke,
Virginia; Lauren Catherine Campbell, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

        Michael        Formica     seeks    to     appeal       the    district      court’s

September 21, 2015 order accepting the recommendation of the

magistrate        judge      and   denying       relief    on    Formica’s     28     U.S.C.

§ 2254        (2012)    petition;     the    court’s       October      16,   2015     order

denying Formica’s first Fed. R. Civ. P. 59(e) motion; and the

court’s October 27, 2015 order denying two subsequent Rule 59(e)

motions and dismissing as successive and unauthorized two Fed.

R. Civ. P. 60(b) motions. *

       The September 21 and October 16 orders and the portion of

the October 27 order denying Formica’s second and third Rule

59(e) motions are not appealable unless a circuit justice or

judge        issues     a    certificate     of     appealability.             28     U.S.C.

§ 2253(c)(1)(A) (2012).              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) (2012).                  When the

district court denies relief on the merits, a prisoner satisfies

this        standard    by   demonstrating        that    reasonable        jurists    would



        *
       It is the “longstanding practice of courts to classify pro
se pleadings from prisoners according to their contents, without
regard to their captions.” United States v. Winestock, 340 F.3d
200, 203 (4th Cir. 2003).    The two Rule 60(b) motions are the
ones Formica delivered to prison officials for mailing to the
court after the October 19 deadline for filing Rule 59(e)
motions.   See Fed. R. Civ. P. 59(e); Houston v. Lack, 487 U.S.
266, 276 (1988); In re Burnley, 988 F.2d 1, 2-3 (4th Cir. 1992).



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find that the district court’s assessment of the constitutional

claims is debatable or wrong.                  Slack v. McDaniel, 529 U.S. 473,

484    (2000);    see    Miller-El        v.    Cockrell,   537    U.S.   322,   336-38

(2003).     When the district court denies relief on procedural

grounds, the prisoner must demonstrate both that the dispositive

procedural ruling is debatable and that the petition states a

debatable claim of the denial of a constitutional right.                         Slack,

529 U.S. at 484-85.

       We have independently reviewed the record and conclude that

Formica has not made the requisite showing.                         Accordingly, we

deny a certificate of appealability and dismiss Formica’s appeal

of the September 21 and October 16 orders and the portion of the

October 27 order denying Formica’s second and third Rule 59(e)

motions.

       A certificate of appealability, however, is not required in

the limited circumstance in which the district court dismisses a

Rule     60(b)     motion         as   an      unauthorized,      successive     habeas

petition.        United States v. McRae, 793 F.3d 392, 400 (4th Cir.

2015).     Accordingly, we may review the portion of the district

court’s October 27 order dismissing Formica’s Rule 60(b) motions

as successive and unauthorized.

       “[A] Rule 60(b) motion in a habeas proceeding 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

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successive habeas petition,” and is therefore subject to the

preauthorization requirement of 28 U.S.C. § 2244(b)(3)(A) (2012)

for successive applications.                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, however, a motion “presents

claims subject to the requirements for successive applications

as well as claims cognizable under Rule 60(b),” it is properly

characterized as a mixed Rule 60(b)/§ 2254 petition.                            Id. at 400

(internal quotation marks omitted).

       In   his    Rule       60(b)     motions,      Formica    not      only     directly

attacked     his     convictions         and       sentence    but   he     also    sought

remedies     for        perceived       flaws       in   the    § 2254       proceeding.

Specifically, he argued that his claims were not procedurally

defaulted and that the court erred in denying him an extension

of time to file objections to the magistrate judge’s report and

recommendation, failing to consider the merits of his claims,

failing to hold an evidentiary hearing, and failing to appoint

counsel.         Accordingly, we conclude that Formica’s motions are

properly construed as mixed Rule 60(b)/§ 2254 petitions.

       In McRae, we reaffirmed our prior holding that, when the

applicant        files    a     mixed    Rule       60(b)/§ 2254     petition,        “‘the

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district court should afford the applicant an opportunity to

elect between deleting the improper claims or having the entire

motion treated as a successive application.’”               793 F.3d at 400

(quoting Winestock, 340 F.3d at 207).          Here, the district court

did not afford Formica that opportunity.              We therefore grant

Formica leave to proceed in forma pauperis, deny his motion to

place   this   appeal   in   abeyance,    vacate    the    portion     of    the

district   court’s    October   27   order   dismissing     his   Rule      60(b)

motions, and remand for further proceedings.

     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.

                                                          DISMISSED IN PART,
                                                            VACATED IN PART,
                                                                AND REMANDED




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