                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 15-6355


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DICKINSON NORMAN ADIONSER, a/k/a D.C. Black,

                Defendant - Appellant.



                             No. 15-6405


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DICKINSON NORMAN ADIONSER, a/k/a D.C. Black,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.     Henry Coke Morgan, Jr.,
Senior District Judge. (2:03-cr-00081-HCM-JEB-1; 2:10-cv-00085-
HCM-DEM)


Submitted:   September 17, 2015            Decided:   October 14, 2015


Before MOTZ and    WYNN,    Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Dickinson Norman Adionser, Appellant Pro Se. Darryl James
Mitchell, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Dickinson         Norman     Adionser       appeals        the   district      court’s

order    entered         December     23,     2014,    construing        his    motion       for

relief from judgment under Fed. R. Civ. P. 60(b) as a motion

under 28 U.S.C. § 2255 (2012), and dismissing it as successive.

He also appeals the district court’s denial of his motion to

reconsider the court’s order of September 9, 2014.                                   Adionser

further appeals the district court’s order of March 18, 2015,

denying his motion to reconsider the December 23, 2014 order.

Upon review of the record, we affirm the district court’s denial

of    relief    on       Adionser’s      motion      to    reconsider        its     order    of

September      9,    2014.        With   regard       to    the    court’s     decision       to

construe Adionser’s motion for relief from judgment as a § 2255

motion, and the related denial of the motion to reconsider, we

vacate    the       district        court’s    orders       and     remand     for    further

proceedings.

       “[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

successive      habeas          [application]”            and     is    subject       to     the

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

for successive applications.                  United States v. McRae, 793 F.3d

392, 397 (4th Cir. 2015) (quoting Gonzalez v. Crosby, 545 U.S.

524, 531-32 (2005)).                By contrast, a “Rule 60(b) motion that

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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.       (quoting

Gonzalez,       545    U.S.    at   531-32).              Where,   however,       a    motion

“‘presents      claims      subject     to   the      requirements         for   successive

applications as well as claims cognizable under Rule 60(b),’”

such a motion is a mixed Rule 60(b)/§ 2255 motion.                               See id. at

400 (quoting United States v. Winestock, 340 F.3d 200, 207 (4th

Cir. 2003)).

      In his motion for relief from judgment, Adionser sought a

remedy for the perceived fraud inherent in his § 2255 proceeding

and   raised     direct       attacks      on       his   conviction       and    sentence.

Accordingly, the motion was a mixed Rule 60(b)/§ 2255 motion.

See McRae, 793 F.3d at 397, 400-01; Gonzalez, 545 U.S. at 532

n.5 (noting that “[f]raud on the federal habeas court” is an

example of an alleged procedural defect that may provide the

basis for a true Rule 60(b) motion); Winestock, 340 F.3d at 207

(stating     that      “a     motion    directly          attacking    the       prisoner’s

conviction      or     sentence     will     usually        amount    to    a    successive

application”).

      The district court did not afford Adionser the opportunity

to elect between deleting his successive § 2255 claims from his

true Rule 60(b) claims or having his entire motion treated as a

successive § 2255 motion.               See McRae, 793 F.3d at 400 (“This

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Court has made clear that ‘[w]hen [a] motion presents claims

subject to the requirements for successive applications as well

as claims cognizable under Rule 60(b), the 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.’” (quoting Winestock, 340 F.3d at 207)).

We therefore vacate the district court’s orders and remand for

further proceedings.

     We grant leave to proceed in forma pauperis and 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 IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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