United States v. Nigel Clarke, 705 F. App'x 185

Nigel Clarke, a federal prisoner proceeding pro se, filed Rule 60(b) motions challenging aspects of his collateral-review proceedings and seeking relief from the district court's prior rulings.
The district court construed Clarke’s Rule 60(b) motions as unauthorized successive 28 U.S.C. § 2255 motions, dismissed them without prejudice, and denied his motion to unseal his presentence report.
Clarke appealed the district court’s characterization and dismissal of his motions and the denial of the motion to unseal.
The Fourth Circuit reviews de novo whether a Rule 60(b) motion is functionally a successive § 2255 petition and distinguishes true Rule 60(b) motions (challenging defects in the integrity of habeas proceedings) from those attacking the merits (successive habeas petitions).
The court determined the March 2017 Rule 60(b) motion attacked the integrity of the collateral-review proceedings (a true Rule 60(b) motion), while the August 2016 motion mixed integrity challenges with a merits attack on his sentence (a mixed Rule 60(b)/§ 2255 motion).
Because the district court failed to give Clarke the choice to delete improper claims or treat the August 2016 filing as a successive § 2255, and it erred in treating the March 2017 filing as successive, the court vacated the dismissals in part and remanded; it affirmed the denial of the unsealing motion as Clarke did not challenge that denial on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Rule 60(b) motions were properly construed as successive § 2255 motions	Clarke argued his motions challenged defects in collateral-review proceedings and were true Rule 60(b) motions	Government treated the motions as successive § 2255 filings requiring preauthorization	March 2017 motion = true Rule 60(b); August 2016 motion = mixed Rule 60(b)/§ 2255
Whether a mixed Rule 60(b)/§ 2255 motion requires an election	Clarke sought adjudication of claims without election	Government urged treating the filings as successive § 2255 petitions	District court must let movant delete improper claims or have whole motion treated as successive § 2255; remand for this opportunity
Whether dismissal without prejudice was proper when characterization was incorrect	Clarke argued dismissal was improper because characterization was wrong	Government relied on dismissal as successive § 2255	Vacated the portion dismissing the motions and remanded for further proceedings
Whether denial of motion to unseal presentence report was reviewable here	Clarke sought review of denial on appeal	Government defended denial; argued procedural defaults	Affirmed denial because Clarke failed to challenge that denial in his informal brief

United States v. McRae, 793 F.3d 392 (4th Cir. 2015) (distinguishing true Rule 60(b) motions from successive habeas petitions and addressing mixed motions)
United States v. Winestock, 340 F.3d 200 (4th Cir. 2003) (district court should allow election to delete improper claims or treat entire filing as successive)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (true Rule 60(b) includes claims that a prior dismissal as time-barred was erroneous)
Jackson v. Lightsey, 775 F.3d 170 (4th Cir. 2014) (appellate review is limited to issues preserved in the appellant’s brief)