United States v. Sanchez McPherson , 624 F. App'x 125 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7150
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SANCHEZ OZELL MCPHERSON, a/k/a Delano Jacob McPherson, a/k/a
Chez, a/k/a Delano MacPherson,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:09-cr-01348-PMD-1)
Submitted: December 15, 2015 Decided: December 17, 2015
Before GREGORY and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Sanchez Ozell McPherson, Appellant Pro Se. Sean Kittrell,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sanchez Ozell McPherson appeals the district court’s order
denying his Fed. R. Civ. P. 60(b) motion for reconsideration of
the district court’s order denying relief on his 28 U.S.C.
§ 2255 (2012) motion. We have reviewed the record and conclude
that McPherson’s motion was not a true Rule 60(b) motion, but in
substance a successive § 2255 motion. See United States v.
McRae, 793 F.3d 392, 399-400 (4th Cir. 2015); see also Gonzalez
v. Crosby, 545 U.S. 524, 531-32 (2005) (explaining how to
differentiate a true Rule 60(b) motion from an unauthorized
successive habeas motion). McPherson therefore is not required
to obtain a certificate of appealability to appeal the district
court’s order. McRae, 793 F.3d at 400. In the absence of
prefiling authorization from this court, the district court
lacked jurisdiction to hear McPherson’s successive § 2255
motion. See 28 U.S.C. § 2244(b)(3) (2012).
Additionally, we construe McPherson’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion. United States v. Winestock, 340 F.3d 200, 208
(4th Cir. 2003). In order to obtain authorization to file a
successive § 2255 motion, a prisoner must assert claims based on
either: (1) newly discovered evidence that . . . would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
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offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable. 28 U.S.C. § 2255(h).
McPherson’s claims do not satisfy either of these criteria.
Therefore, we deny authorization to file a successive § 2255
motion. Accordingly, we affirm the district court’s order. We
deny McPherson’s motions for appointment of counsel, transcripts
at Government expense, and relief from judgment. We also
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.
AFFIRMED
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