Markese D. Rice v. Kenneth Diggs

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-6690
MARKESE D. RICE,
Petitioner - Appellant,
v.
KENNETH DIGGS,
Respondent - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Martin K. Reidinger, Chief District Judge. (3:23-cv-00355-MR)
Submitted: December 29, 2023 Decided: February 23, 2024
Before QUATTLEBAUM and HEYTENS, Circuit Judges, and KEENAN, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Markese D. Rice, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Markese D. Rice appeals the district court’s order construing his Fed. R. Civ. P.
60(b) motion for relief from judgment as an unauthorized, successive 28 U.S.C. § 2254
petition and dismissing it on that basis.* Our review of the record confirms that the district
court properly construed Rice’s Rule 60(b) motion as a successive § 2254 petition over
which it lacked jurisdiction because he failed to obtain prefiling authorization from this
court. See 28 U.S.C. § 2244(b)(3)(A); McRae, 793 F.3d at 397-400. Accordingly, we
affirm the district court’s order.
Consistent with our decision in United States v. Winestock, 340 F.3d 200, 208 (4th
Cir. 2003), we construe Rice’s notice of appeal and informal brief as an application to file
a second or successive § 2254 petition. Upon review, we conclude that Rice’s claims do
not meet the relevant standard. See 28 U.S.C. § 2244(b)(2). We therefore deny
authorization to file a successive § 2254 petition.
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.
AFFIRMED
* A certificate of appealability is not required to appeal the district court’s
jurisdictional categorization of a Rule 60(b) motion as an unauthorized, successive habeas
petition. United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015).

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