United States v. Francis ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7120
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND JEROME FRANCIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-96-21; CA-00-141)
Submitted: October 20, 2005 Decided: October 31, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Raymond Jerome Francis, Appellant Pro Se. Thomas Richard Ascik,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Raymond Jerome Francis, a federal prisoner, seeks to
appeal the district court’s orders (1) denying relief on his
petition for an exception to the mandate rule; (2) denying his
motion for reconsideration on the ground that the petition was a
successive motion under 28 U.S.C. § 2255 (2000), over which the
court lacked jurisdiction; and (3) denying his second motion for
reconsideration. The orders are not appealable 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
the district court’s assessment of his constitutional claims is
debatable or wrong and that any dispositive procedural rulings by
the district court also are debatable or wrong. 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 Francis
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Francis’ notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (2003). 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 that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),
2255 (2000). Francis’ claims do not satisfy either of these
conditions. Therefore, we decline to authorize Francis 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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