United States v. Samuel , 101 F. App'x 924 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6153
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRELL W. SAMUEL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (CR-94-773)
Submitted: June 23, 2004 Decided: July 1, 2004
Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Darrell W. Samuel, Appellant Pro Se. Christopher Todd Hagins,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Darrell W. Samuel appeals an order of the district court
dismissing for lack of jurisdiction Samuel’s “Motion Requesting
Specific Performance Order, To Enforce/Embody Plea Agreement,”
which was characterized by the district court as a successive 28
U.S.C. § 2255 (2000) motion.
Samuel may not appeal from the denial of relief in a
§ 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. See 28 U.S.C. § 2253(c)(1) (2000).
Samuel may satisfy this standard by demonstrating that reasonable
jurists would find both that his constitutional claims are
debatable and that any dispositive procedural rulings by the
district court are debatable or wrong. See Miller-El v. Cockrell,
537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have reviewed
the record and determine that Samuel’s motion for specific
performance is, in substance, a successive motion attacking his
conviction and sentence under 28 U.S.C. § 2255 (2000). See United
States v. Winestock, 340 F.3d 200, 206 (4th Cir.), cert. denied,
124 S. Ct. 496 (2003). We therefore treat Samuel’s notice of
appeal and appellate brief as a request for authorization from this
court to file a second § 2255 motion. See id. at 208.
This court may authorize a second or successive § 2254
petition only if the applicant can show that his claims are based
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on (1) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or (2) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found him guilty of the offense. See 28
U.S.C. § 2255 ¶ 8. The applicant bears the burden of making a
prima facie showing of these requirements in his application. See
In re Fowlkes, 326 F.3d 542, 543 (4th Cir. 2003). In the absence
of pre-filing authorization, the district court is without
jurisdiction to entertain the successive petition. Evans v. Smith,
220 F.3d 306, 325 (4th Cir. 2000).
After reviewing Samuel’s motion and the record in this
matter, we conclude that it does not meet the applicable standard.
We therefore deny Samuel’s motion for a certificate of
appealability and the implied request for authorization to file a
second or successive § 2255 motion, and dismiss the appeal. We
dispense with oral argument because 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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