UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-6105

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD ASHBAUGH,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, District Judge. (3:05-cr-00060-JPB-RWT-1)

Submitted: August 31, 2018 Decided: September 7, 2018

Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Vacated and remanded with instructions by unpublished per curiam opinion.

Valena E. Beety, Christopher W. Maidona, Third-Year Law Student, Victoria G. Bittorf, Third-Year Law Student, Morgantown, West Virginia, Thomas J. Gillooly, West Virginia Innocence Project, WEST VIRGINIA UNIVERSITY COLLEGE OF LAW, Charleston, West Virginia, for Appellant. William J. Powell, United States Attorney, Paul T. Camilletti, Assistant United States Attorney, Tara Tighe, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Richard Ashbaugh seeks to appeal the district court’s denial of his Fed. R. Civ. P.

60(b) motion to reconsider the denial of his motion to reopen his

(2012)

case. We have reviewed the record on appeal and conclude that Ashbaugh’s Rule 60(b)

motion was actually a second or successive habeas motion because he sought, in essence,

to collaterally attack his sentence and the district court adjudicated his first § 2255 motion

on the merits. Ashbaugh did not obtain prefiling authorization from this court to file a

second or successive § 2255 motion, and, thus, the district court lacked jurisdiction to

consider Ashbaugh’s motion for reconsideration. United States v. Winestock,

(4th Cir. 2003). As a result, we must “vacate the order denying [Ashbaugh’s] motion

for reconsideration and remand to the district court with instructions to dismiss the

motion.”

.

Next, following Winestock, we “construe [Ashbaugh’s] notice of appeal and his

appellate brief as a motion for authorization to file a successive application.”

. To obtain permission to bring a second or successive § 2255 motion, a movant must

show that his claim: (1) “relies on a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable” or (2)

relies on newly discovered facts that tend to establish the movant’s innocence.

(h). We conclude that Ashbaugh’s claims do not satisfy either of these criteria.

Accordingly, we vacate the district court’s order and remand with instructions to

dismiss Ashbaugh’s motion for lack of jurisdiction, and we deny authorization to file a

second or successive § 2255 motion. We dispense with oral argument because the facts

2 and legal contentions are adequately presented in the materials before this court and

argument would not aid the decisional process.

VACATED AND REMANDED WITH INSTRUCTIONS

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