United States v. Redd ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6586
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK VINCENT REDD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:09-cv-01301-LMB)
Submitted: July 22, 2010 Decided: August 3, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derrick Vincent Redd, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Redd seeks to appeal the district court’s
order treating his petition for a writ of mandamus as a
successive 28 U.S.C.A. § 2255 (West Supp. 2010) 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) (2006); Reid v. Angelone,
369 F.3d 363, 369 (4th Cir. 2004). 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 Redd has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
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Additionally, we construe Redd’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 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) (West Supp. 2010). Redd’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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