United States v. Simpson ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6957
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHAD ERIC SIMPSON,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:01-cr-00189-GCM-4; 3:08-cv-00197-GCM)
Submitted: November 13, 2008 Decided: November 19, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Chad Eric Simpson, Appellant Pro Se. Gretchen C.F. Shappert,
United States Attorney, Robert James Conrad, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Chad Eric Simpson seeks to appeal the district court=s
order denying relief on his 28 U.S.C.A. § 2255 (West Supp. 2008)
motion. The order is 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 Aa 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. 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 Simpson has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, Simpson seeks to appeal the district
court=s dismissal of his motion filed under Fed. R. Civ. P. 59(e)
as a second or successive § 2255 motion. We construe Simpson=s
notice of appeal and informal brief as an application to file a
second or successive motion under § 2255. United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to
obtain authorization to file a successive 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. 28 U.S.C. § 2244(b)(2) (2006), § 2255(h). Simpson=s
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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