UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-8014

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICHARD ARTHUR SCHMIDT,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:04-cr-00052-JFM-1; 1:13-cv-03370-JFM)

Submitted: April 28, 2014 Decided: May 13, 2014

Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Richard Arthur Schmidt, Appellant Pro Se. Andrew George Warrens 

Norman, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, 

Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Richard Arthur Schmidt seeks to appeal the district 

court’s order dismissing his 28 U.S.C. § 2255 (2012) motion for 

failure to receive authorization from this court to file a 

successive motion. For the reasons that follow, we grant a 

certificate of appealability, vacate the district court’s 

judgment and remand for further proceedings. 

In 2005, Schmidt was convicted of traveling with 

intent to engage in a sexual act with a minor and engaging in 

illicit sexual conduct with a minor, in violation of 18 U.S.C. 

§ 2423(b), (c) (2012). In April 2007, Schmidt filed a motion 

pursuant to Fed. R. Civ. P. 60(b)(4), claiming that the district 

court lacked subject matter jurisdiction over his case.1

 The 

district court construed the filing as a § 2255 motion and 

summarily denied it without an explanation. 

Schmidt subsequently filed numerous post-conviction 

motions, which were all construed as § 2255 motions and 

dismissed as successive. About one year ago, Schmidt filed a 28 

U.S.C. § 2244 motion (2012) seeking authorization to file a 

successive § 2255 motion, specifically arguing that, when the 

district court re-characterized his Fed. R. Civ. P. 60(b)(4)

 1 Notably, the motion stated that “in no way should it be 

construed” as a § 2255 motion. 
3

motion as a § 2255 motion in 2007, he “was never notified . . . 

nor given the opportunity to withdraw the motion,” in violation 

of the Supreme Court’s holding in Castro v. United States, 540 

U.S. 375 (2003). 

Because the district court had not provided Schmidt 

with notice that it was re-characterizing his Rule 60(b)(4) 

motion as a § 2255 motion, nor did it provide Schmidt with the 

opportunity to either withdraw or amend the motion, we concluded

that the 2007 motion could not be counted as Schmidt’s first 

§ 2255 motion. See Castro, 540 U.S. at 383. Moreover, 

Schmidt’s subsequent motions for post-conviction relief were all 

dismissed without prejudice for being successive and, therefore,

could not count as prior § 2255 motions for purposes of the 

limitations on successive § 2255 motions. See In re Goddard, 

170 F.3d 435, 438 (4th Cir. 1999) (citing cases in which postconviction proceedings dismissed on certain procedural grounds 

were not counted in determining whether subsequent motions are 

successive). Accordingly, we denied as unnecessary the motion 

for authorization to file a second or successive motion. In re: 

Schmidt, No. 13-168 (Mar. 29, 2013).

Months later, Schmidt filed the underlying § 2255 

motion in the district court. Although Schmidt attached a copy 

of this court’s order stating authorization was unnecessary to 
4

file a § 2255 motion, the district court summarily dismissed the 

motion as successive.

Because the underlying § 2255 motion was not a second 

or successive motion within the meaning of § 2255, the district 

court erred by holding that Schmidt was required to obtain an

order from this court authorizing the district court to consider 

the motion. Consequently, we grant Schmidt’s motion to proceed 

in forma pauperis on appeal, grant a certificate of 

appealability, vacate the order of the district court, and 

remand for further proceedings.2

 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

 2 We, of course, express no opinion as to the timeliness or 

merits of Schmidt’s claims.