Gary Boone v. Warden, Usp Lee County , 460 F. App'x 223 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6872
GARY DEAN BOONE,
Petitioner - Appellant,
v.
WARDEN, USP LEE COUNTY,
Respondent – Appellee,
and
H. J. MARBERRY, Warden; WARDEN, FCI, ALLENWOOD; UNITED
STATES OF AMERICA,
Respondents.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:11-cv-00204-SGW)
Submitted: December 13, 2011 Decided: December 30, 2011
Before AGEE and DIAZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Gary Dean Boone, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gary Dean Boone appeals the district court’s orders
denying his 28 U.S.C.A. § 2241 (West 2006 & Supp. 2011) petition
and denying his motion for reconsideration. We have reviewed
the record and find no reversible error. Accordingly, we affirm
for the reasons stated by the district court. Boone v. Warden,
USP Lee County, No. 7:11-cv-00204-SGW (W.D. Va. May 5, 2011; May
25, 2011).
Additionally, we construe Boone’s notice of appeal and
informal brief as an application to file a second or successive
28 U.S.C.A. § 2255 (West Supp. 2011) motion. See Rice v.
Rivera, 617 F.3d 802, 808 (4th Cir. 2010); 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). Boone’s claims do
not satisfy either of these criteria. Therefore, we deny
authorization to file a successive § 2255 motion.
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Accordingly, we affirm. We deny Boone’s motion to
place the appeal in abeyance. 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.
AFFIRMED
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