United States v. Jermol Chin ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6614
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMOL CHIN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:06-cr-00552-WDQ-1; 1:11-cv-00947-WDQ)
Submitted: July 28, 2011 Decided: August 2, 2011
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jermol Chin, Appellant Pro Se. Debra Lynn Dwyer, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermol Chin seeks to appeal the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C.A. § 2255 (West Supp. 2011) motion, and dismissing it on
that basis. The order is not appealable unless a circuit
justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1)(B) (2006). 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) (2006). 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 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 Chin has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Chin’s notice of appeal and
informal brief as an application to file a second or successive
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§ 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, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found
the movant guilty of the offense; or (2) a new rule of
constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review. 28 U.S.C.A.
§ 2255(h). Chin’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 the court and argument would not aid the decisional
process.
DISMISSED
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