United States v. Kelvin Spotts ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7880
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELVIN ANDRE SPOTTS, a/k/a Shorty,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:98-cr-00047-1; 3:00-cv-00647)
Submitted: April 21, 2015 Decided: April 30, 2015
Before GREGORY and DIAZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kelvin Andre Spotts, Appellant Pro Se. Steven Loew Assistant
United States Attorney, Charleston, West Virginia; Richard
Gregory McVey, Assistant United States Attorney, Huntington,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kelvin Andre Spotts seeks to appeal the district court’s
order denying on the merits his Fed. R. Civ. P. 60(b) motion
seeking relief from an order denying his 28 U.S.C. § 2255 (2012)
motion. Because the Rule 60(b) motion directly attacked Spotts’
convictions, the district court was without jurisdiction to
consider the motion, which was, in essence, a successive and
unauthorized § 2255 motion. See United States v. Winestock, 340
F.3d 200, 206 (4th Cir. 2003).
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability.
28 U.S.C. § 2253(c)(1) (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 debatable, and that the motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
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We have independently reviewed the record and conclude that
Spotts has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal.
Additionally, we construe Spotts’ 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 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). Spotts’ 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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