UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-7681


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JUSTIN DEONTA STROM, a/k/a Jae Dee, a/k/a Jae, a/k/a J-Dirt,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. James C. Cacheris, Senior District Judge. (1:12-cr-00159-JCC-1; 1:15-cv-
00632-JCC)


Submitted: April 26, 2017                                         Decided: May 10, 2017


Before AGEE, WYNN, and FLOYD, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Justin Deonta Strom, Appellant Pro Se. Marc Birnbaum, Special Assistant United States
Attorney, Inayat Delawala, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Justin Deonta Strom appeals the district court’s order denying his Fed. R. Civ. P.

60(b) motion for relief from judgment in his 28 U.S.C. § 2255 (2012) proceeding. We

vacate the district court’s order and remand for further proceedings.

       “[A] Rule 60(b) motion in a habeas proceeding that attacks ‘the substance of the

federal court’s resolution of a claim on the merits’ is not a true Rule 60(b) motion, but

rather a successive habeas petition,” and is subject to the preauthorization requirement of

28 U.S.C. § 2244(b)(3)(A) (2012). United States v. McRae, 

, 397 (4th Cir.

2015) (quoting Gonzalez v. Crosby, 

, 531-32 (2005)). By contrast, “[a] Rule

60(b) motion that challenges ‘some defect in the integrity of the federal habeas

proceedings’ . . . is a true Rule 60(b) motion, and is not subject to the preauthorization

requirement.” 

545 U.S. at 531-32). Where, however, the movant

“‘presents claims subject to the requirements for successive applications as well as claims

cognizable under Rule 60(b),’” such a motion is a mixed Rule 60(b)/§ 2255 motion. 

(quoting United States v. Winestock, 

, 207 (4th Cir. 2003)).

       In his Rule 60(b) motion, Strom sought a remedy for a perceived flaw in his

§ 2255 proceeding—namely, the district court’s failure, in ruling on the § 2255 motion,

to address Strom’s claims of actual innocence and that plea counsel induced Strom’s

guilty plea by assuring Strom that he would receive a 10-year sentence—and raised a

direct attack on his conviction and sentence. Accordingly, the motion was a mixed Rule

60(b)/§ 2255 motion. 

, 400; see 

n.4

(holding that a movant files a true Rule 60(b) motion “when he . . . asserts that a previous

                                             2
ruling which precluded a merits determination was in error”); 

(stating that “a motion directly attacking the prisoner’s conviction or sentence will

usually amount to a successive application”).

      The district court did not afford Strom the opportunity to elect between deleting

his successive § 2255 claims or having his entire motion treated as a successive § 2255

motion. See 

(“This Court has made clear that ‘[w]hen [a] motion

presents claims subject to the requirements for successive applications as well as claims

cognizable under Rule 60(b), the district court should afford the applicant an opportunity

to elect between deleting the improper claims or having the entire motion treated as a

successive application.’” (quoting 

)). We therefore vacate the

district court’s order and remand for further proceedings.       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




                                            3