United States v. Dwayne McFadden , 624 F. App'x 832 ( 2015 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 15-7191
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    DWAYNE MCFADDEN,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Florence.    Terry L. Wooten, Chief District
    Judge. (4:04-cr-00564-TLW-1)
    Submitted:   December 8, 2015              Decided:   December 18, 2015
    Before SHEDD and    AGEE,   Circuit   Judges,   and   HAMILTON,   Senior
    Circuit Judge.
    Affirmed in part and dismissed in part by unpublished per curiam
    opinion.
    Dwayne McFadden, Appellant Pro Se. Rose Mary Parham, PARHAM LAW
    OFFICE, Florence, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Dwayne McFadden seeks to appeal the district court’s order
    denying his motion for a new trial.
    With respect to the portion of the district court’s order
    denying relief under Fed. R. Crim. P. 33, we have reviewed the
    record and find no reversible error.            Accordingly, we affirm the
    district court’s order in part for the reasons stated by the
    district      court.          United        States         v.     McFadden,      No.
    4:04-cr-00564-TLW-1 (D.S.C. June 3, 2015).
    The portion of the district court’s order construing the
    new trial motion as seeking relief under 
    28 U.S.C. § 2255
     (2012)
    and denying such relief to McFadden is not appealable unless a
    circuit justice or judge issues a certificate of appealability.
    
    28 U.S.C. § 2253
    (c)(1)(B)         (2012).             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)
    (2012).    When the district court denies relief on the merits, a
    prisoner     satisfies     this     standard         by     demonstrating       that
    reasonable    jurists      would    find     that     the       district   court’s
    assessment of the constitutional claims is debatable or wrong.
    Slack v. McDaniel, 
    529 U.S. 473
    , 484 (2000); see Miller-El v.
    Cockrell, 
    537 U.S. 322
    , 336-38 (2003).                When the district court
    denies     relief     on   procedural       grounds,        the    prisoner     must
    demonstrate    both    that   the   dispositive           procedural   ruling    is
    2
    debatable, and that the motion states a debatable claim of the
    denial of a constitutional right.         Slack, 
    529 U.S. at 484-85
    .
    We have independently reviewed the record and conclude that
    McFadden has not made the requisite showing.             The district court
    lacked    jurisdiction   to   deny    § 2255    relief     on     the   merits.
    McFadden’s motion challenged the validity of his sentence.                 The
    motion was properly construed as a successive § 2255 motion,
    see Gonzalez v. Crosby, 
    545 U.S. 524
    , 531–32 (2005) (explaining
    how to differentiate a true Fed. R. Civ. P. 60(b) motion from an
    unauthorized    second   or     successive     habeas    corpus     petition);
    United States v. Winestock, 
    340 F.3d 200
    , 207 (4th Cir. 2003)
    (same), but should have been dismissed for lack of jurisdiction
    in light of the absence of pre-filing authorization from this
    court.    See 
    28 U.S.C. § 2244
    (b)(3) (2012); Winestock, 
    340 F.3d at 205
    .
    Accordingly,   we   deny    a   certificate   of     appealability     and
    dismiss the appeal in part.           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.
    AFFIRMED IN PART AND
    DISMISSED IN PART
    3
    

Document Info

Docket Number: 15-7191

Citation Numbers: 624 F. App'x 832

Judges: Shedd, Agee, Hamilton

Filed Date: 12/18/2015

Precedential Status: Non-Precedential

Modified Date: 11/6/2024