United States v. Reynolds , 259 F. App'x 556 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7375
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIE REYNOLDS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (6:90-cr-00054; 1:06-cv-00084)
Submitted: December 13, 2007 Decided: December 21, 2007
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Willie Reynolds, Appellant Pro Se. Angela Hewlett Miller, OFFICE
OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Reynolds seeks to appeal the district court’s
order adopting the recommendation of the magistrate judge, treating
his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C. § 2255(2000) motion, and dismissing it on that basis. The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. See 28 U.S.C. § 2253(c)(1) (2000); 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) (2000).
A prisoner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683-84 (4th Cir. 2001). We have independently reviewed the
record and conclude that Reynolds has not made the requisite
showing. Accordingly, we deny a certificate of appealability, deny
leave to proceed in forma pauperis, and dismiss the appeal.
Additionally, we construe Reynolds’ notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. See 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) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) 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. See 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Reynolds’ 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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