United States v. Price ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6368
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANNY PRICE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CA-02-4273; CR-00-780)
Submitted: May 23, 2005 Decided: August 18, 2005
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Danny Price, Appellant Pro Se. Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Danny Price, a federal prisoner, seeks to appeal the
district court order denying his Fed. R. Civ. P. 60(b) motion to
reconsider the denial of his underlying 28 U.S.C. § 2255 (2000)
motion. An appeal may not be taken from the final order in a
§ 2255 proceeding unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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 his constitutional
claims are debatable and any dispositive procedural rulings by the
district court are also debatable or wrong. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001).
We have independently reviewed the record and conclude Price has
not made the requisite showing. Accordingly, we deny a certificate
of appealability and dismiss the appeal.*
Additionally, we construe Price’s notice of appeal and
informal brief on appeal as an application to file a second or
*
We note the district court should have dismissed the motion
for lack of jurisdiction as a successive motion. See United
States v. Winestock, 340 F.3d 200, 206-07 (4th Cir. 2003).
Nonetheless, Price fails to establish the criteria for issuance of
a certificate of appealability. See Reid v. Angelone, 369 F.3d
363, 368-69 (4th Cir. 2004).
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successive § 2255 motion. See Winestock, 340 F.3d at 208. In
order to obtain authorization to 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 sufficient to establish that no reasonable fact
finder would have found the movant guilty. 28 U.S.C.
§§ 2244(b)(3)(C), 2255 (2000). Price’s claims do not satisfy
either of these conditions. Therefore, we decline to grant Price
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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