United States v. Woodard , 146 F. App'x 641 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN WOODARD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(CR-00-299-MJG; CA-03-788-MJG)
Submitted: October 18, 2005 Decided: October 20, 2005
Before WIDENER, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Calvin Woodard, Appellant Pro Se. Bonnie S. Greenberg, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Calvin Woodard, a federal prisoner, seeks to appeal the
district court order denying his Fed. R. Civ. P. 60(b) motion to
reconsider 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 that his constitutional claims are debatable and
that 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 that Woodard has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.1
Additionally, we construe Woodard’s notice of appeal and
informal brief on appeal as an application to file a second or
*
We note that the district court should have dismissed the
Rule 60(b) motion for lack of jurisdiction as a successive motion.
See United States v. Winestock, 340 F.3d 200, 206-07 (4th Cir.),
cert. denied, 540 U.S. 995 (2003). Nonetheless, Woodard 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). Woodard’s claims do not satisfy
either of these conditions. Therefore, we decline to grant Woodard
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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