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United States v. Thomas LaBuwi, II, 13-7512 (2015)

Court: Court of Appeals for the Fourth Circuit Number: 13-7512 Visitors: 13
Filed: Sep. 04, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-7512 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS WALKER LABUWI, II, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilson. James C. Fox, Senior District Judge. (7:00-cr-00078-F-8) Submitted: August 24, 2015 Decided: September 4, 2015 Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in pa
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-7512


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS WALKER LABUWI, II,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilson.  James C. Fox, Senior
District Judge. (7:00-cr-00078-F-8)


Submitted:   August 24, 2015                 Decided:   September 4, 2015


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Thomas Walker LaBuwi, II, Appellant Pro Se.   Jennifer P. May-
Parker,   Assistant  United States  Attorney,  Raleigh,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Thomas       Walker    LaBuwi,    II,      appeals     the   district       court’s

orders denying his petition for a writ of error audita querela

as   an    unauthorized       successive      motion      under    28   U.S.C.    § 2255

(2012), and dismissing his Fed. R. Civ. P. 60(b) motion for

reconsideration.         After review, we affirm the district court’s

order     denying    LaBuwi’s     petition        for    audita    querela    for      the

reasons stated by the district court.                    United States v. LaBuwi,

No. 7:00-cr-00078-F-8 (E.D.N.C. May 7, 2013).

      To     the     extent     that    audita          querela    petition       is    an

unauthorized successive § 2255 motion, we deny LaBuwi’s motion

for a certificate of appealability and dismiss the appeal.                             See

Slack v. McDaniel, 
529 U.S. 473
, 484-85 (2000).                           We conclude

that LaBuwi’s Rule 60(b) motion was not a successive § 2255

motion, see United States v. Winestock, 
340 F.3d 200
, 207 (4th

Cir. 2003) (“[A] motion seeking a remedy for some defect in the

collateral      review      process    will      generally    be    deemed    a    proper

motion     to   reconsider.”),         but    conclude       the   district       court’s

denial of the motion does not warrant full review after grant of

a certificate of appealability.                  See Reid v. Angelone, 
369 F.3d 363
, 369 (4th Cir. 2004), abrogated on other grounds by United

States v. McRae, __ F.3d __, __, No. 13-6878, 
2015 WL 4190665
,

at *6 n.7 (4th Cir. July 13, 2015).



                                             2
     Accordingly, we affirm in part and dismiss in part.             We

dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the material before this

court and argument will not aid the decisional process.



                                                    AFFIRMED IN PART;
                                                    DISMISSED IN PART




                                    3

Source:  CourtListener

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