United States v. Jones , 403 F. App'x 799 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRANCE JONES, a/k/a Tube,
Defendant – Appellant.
No. 10-6324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRANCE JONES, a/k/a Tube,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:96-cr-00079-BO-1; 5:10-cv-00017-BO)
Submitted: October 5, 2010 Decided: December 2, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Torrance Jones, Appellant Pro Se in No. 10-6321; Clayton Reed
Kaeiser, CLAYTON R. KAEISER, PA, Miami, Florida, for Appellant
in No. 10-6324. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Torrance Jones seeks to appeal the district court’s
orders treating his 28 U.S.C.A. § 2241 (West 2006 & Supp. 2010)
petition and his Fed. R. Civ. P. 60(b) motion as successive 28
U.S.C.A. § 2255 (West Supp. 2010) motions, and dismissing them
on that basis. The orders are not appealable unless a circuit
justice or judge issues certificates 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 that Jones has not made the requisite showing.
Accordingly, we deny certificates of appealability and dismiss
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the appeals. We also deny Jones’ motion to appoint counsel in
No. 10-6321.
Additionally, we construe Jones’ notice of appeal in
No. 10-6324 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). Jones’ 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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