United States v. Jason McCright , 581 F. App'x 287 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6433
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JASON L. MCCRIGHT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Rebecca Beach Smith,
Chief District Judge. (4:09-cr-00022-RBS-TEM-1)
Submitted: July 24, 2014 Decided: August 18, 2014
Before KEENAN and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Jason L. McCright, Appellant Pro Se. Timothy Richard Murphy,
Special Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason L. McCright seeks to appeal the district court’s
order treating his Fed. R. Civ. P. 60(b) motion as a successive
28 U.S.C. § 2255 (2012) motion, and dismissing it on that basis.
Because we conclude, after reviewing the record, that the
district court properly construed McCright’s motion as a
successive habeas petition, the order 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 procedural
grounds, as the district court did in this case, the prisoner
must demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. See Slack v. McDaniel, 529
U.S. 473, 484-85 (2000).
We have independently reviewed the record and conclude
that McCright has not made the requisite showing. Accordingly,
we deny a certificate of appealability and dismiss the appeal.
Additionally, we construe McCright’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
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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 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) (2012). McCright’s claims do not satisfy
either of these criteria. Therefore, we deny authorization to
file a successive § 2255 motion.
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.
DISMISSED
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