Rowe v. Director, Department of Corrections , 111 F. App'x 150 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6836
BRIAN LEE ROWE,
Petitioner - Appellant,
versus
DIRECTOR, DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CA-99-457-3)
Submitted: July 9, 2004 Decided: September 24, 2004
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian Lee Rowe, Appellant Pro Se. Steven Andrew Witmer, OFFICE OF
THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Lee Rowe, a Virginia prisoner, seeks to appeal the
district court’s order dismissing his motion for reconsideration,
Fed. R. Civ. P. 60(b). The district court construed Rowe’s motion
as a successive 28 U.S.C. § 2254 (2000) petition. Rowe’s motion,
however, alleged that the district court erred by failing to
conduct an evidentiary hearing before denying Rowe’s § 2254
petition. Because this motion did not directly attack Rowe’s
conviction or sentence, but rather asserted a defect in the
collateral review process itself, it constituted a true Rule 60(b)
motion under our decision in United States v. Winestock, 340 F.3d
200, 207 (4th Cir), cert. denied, 124 S.Ct. 496 (2003). To appeal
an order denying a Rule 60(b) motion in a habeas action, Rowe must
establish entitlement to a certificate of appealability. See
Reid v. Angelone, 369 F.3d 363, 368 (4th Cir. 2004).
A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this standard by
demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). Although we disagree with the district
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court’s procedural ruling that Rowe’s motion was successive, the
record nonetheless demonstrates that Rowe’s motion is subject to
procedural bar. We previously denied a certificate of
appealability and dismissed Rowe’s appeal of the denial of his
habeas petition in 2001, in which Rowe suggested his case should be
remanded for an evidentiary hearing. Rowe v. Director, No. 01-6559
(4th Cir. 2001). Principles of res judicata, see Andrews v. Daw,
201 F.3d 521, 524 (4th Cir. 2000), and law of the case, see United
States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993), therefore bar this
appeal. Moreover, Rowe’s motion, filed years after his appeal, was
not filed within a reasonable time, as required by Rule 60(b). See
McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 537-38 (4th Cir.
1991). These procedural deficiencies preclude granting a
certificate of appealability.
Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal. We
deny Rowe’s motion for appointment of counsel. We deny Rowe’s
motion for oral argument; the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
DISMISSED
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