                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-8014


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RICHARD ARTHUR SCHMIDT,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:04-cr-00052-JFM-1; 1:13-cv-03370-JFM)


Submitted:   April 28, 2014                 Decided:    May 13, 2014


Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Richard Arthur Schmidt, Appellant Pro Se.   Andrew George Warrens
Norman, OFFICE OF THE UNITED STATES         ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Richard Arthur Schmidt seeks to appeal the district

court’s order dismissing his 28 U.S.C. § 2255 (2012) motion                             for

failure    to    receive      authorization       from     this       court    to   file   a

successive motion.             For the reasons that follow, we grant a

certificate      of     appealability,          vacate     the        district      court’s

judgment and remand for further proceedings.

            In     2005,     Schmidt     was    convicted         of    traveling       with

intent to engage in a sexual act with a minor and engaging in

illicit sexual conduct with a minor, in violation of 18 U.S.C.

§ 2423(b), (c) (2012).            In April 2007, Schmidt filed a motion

pursuant to Fed. R. Civ. P. 60(b)(4), claiming that the district

court lacked subject matter jurisdiction over his case. 1                               The

district   court      construed       the   filing    as    a     §    2255    motion   and

summarily denied it without an explanation.

            Schmidt        subsequently      filed    numerous          post-conviction

motions,    which      were     all     construed     as    §     2255        motions    and

dismissed as successive.              About one year ago, Schmidt filed a 28

U.S.C.    § 2244      motion    (2012)      seeking   authorization            to   file   a

successive § 2255 motion, specifically arguing that, when the

district court re-characterized his Fed. R. Civ. P. 60(b)(4)


     1
       Notably, the motion stated that “in no way should it be
construed” as a § 2255 motion.



                                            2
motion as a § 2255 motion in 2007, he “was never notified . . .

nor given the opportunity to withdraw the motion,” in violation

of the Supreme Court’s holding in Castro v. United States, 540

U.S. 375 (2003).

           Because the district court had not provided Schmidt

with   notice   that    it    was   re-characterizing           his   Rule    60(b)(4)

motion as a § 2255 motion, nor did it provide Schmidt with the

opportunity to either withdraw or amend the motion, we concluded

that the 2007 motion could not be counted as Schmidt’s first

§ 2255   motion.        See     Castro,       540   U.S.   at    383.        Moreover,

Schmidt’s subsequent motions for post-conviction relief were all

dismissed without prejudice for being successive and, therefore,

could not count as prior § 2255 motions for purposes of the

limitations on successive § 2255 motions.                    See In re Goddard,

170 F.3d 435, 438 (4th Cir. 1999) (citing cases in which post-

conviction proceedings dismissed on certain procedural grounds

were not counted in determining whether subsequent motions are

successive).     Accordingly, we denied as unnecessary the motion

for authorization to file a second or successive motion.                       In re:

Schmidt, No. 13-168 (Mar. 29, 2013).

           Months      later,    Schmidt       filed   the      underlying     §   2255

motion in the district court.             Although Schmidt attached a copy

of this court’s order stating authorization was unnecessary to



                                          3
file a § 2255 motion, the district court summarily dismissed the

motion as successive.

             Because the underlying § 2255 motion was not a second

or successive motion within the meaning of § 2255, the district

court erred by holding that Schmidt was required to obtain an

order from this court authorizing the district court to consider

the motion.     Consequently, we grant Schmidt’s motion to proceed

in   forma     pauperis    on    appeal,        grant    a   certificate     of

appealability,    vacate   the   order     of    the    district   court,   and

remand for further proceedings. 2        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.



                                                        VACATED AND REMANDED




     2
       We, of course, express no opinion as to the timeliness or
merits of Schmidt’s claims.




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