**UN PUBLISHED** 
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 un published 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Unpublished opinions are not binding precedent in this circuit.2 PER CURIAM: Richard Arthur Schmidt seeks to appeal the district court’s order dismissing his 28 U.S.C. § 2255 (2012) motion for failure to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 certificat e of appealability, vacate the district c ourt’s judgment and remand for further proceedings. In 2005, Schmidt was convicted of travel ing with intent to engage in a sexual act with a minor and engaging in illicit sexual conduct with a minor, in violati on of 18 U.S.C.
§ 2423 (b), (c) (20 12 ). 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 T he district court construed the filing as a § 2255 mot ion and summarily denied it without an explanation. Schmidt subsequently filed numerous post

- conviction motions , which were all construed as § 2255 motion s and dismissed a s successive. About one year ago, Schmidt filed a 28
U.S.C. § 2244 motion (2012) seek ing 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 w ithdraw the motion,” in violation of the Supreme Court’s holding in Castro v. United States , 540 U.S. 375 (2003)
. Because t he district court had not provide d Schmidt with notice that it was re

- characterizing his Rule 60(b)(4) motion as a § 2255 motio n, nor did it provide Schmidt with the opportunity to either withdraw or amend the motion , we concluded that t he 2007 motion c ould not be counted as Schmidt’s first
§ 2255 motion. See Castro , 540 U.S. at 383. Moreover, Schmidt’s subsequent motions for po st

- 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) (citi ng cases in which post

conviction 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 c ourt’s order stating authorization was unnecessary to4 file a § 225 5 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 w as 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 furt her proceedings. 2 We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before th is court and argument would not aid the decisional process.

VACATED AND REMANDED

2 We, of course, express no opinion as to the timeliness or me rits of Schmidt’s claims.