United States v. Sills ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-6901
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT EDWARD SILLS, a/k/a Bobby,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:03-cr-00148-JBF-5; 2:06-cv-00697-JBF)
Submitted: August 20, 2009 Decided: August 27, 2009
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Robert Edward Sills, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Sills seeks to appeal the district
court’s order treating his motion to reconsider the denial of
his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.A.
§ 2255 (West Supp. 2009) motion, and dismissing it on that
basis. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th
Cir. 2004). 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) (2006). 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 Sills has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
in part the appeal.
Additionally, we construe Sills’ notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C.A. § 2255. United States v. Winestock,
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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) (West Supp. 2009). Sills’ claims
do not satisfy either of these criteria. Therefore, we deny
authorization to file a successive § 2255 motion.
Insofar as Sills appeals the denial of his motion for
recusal of a United States District Judge, we affirm. Sills
failed to present any legitimate reason for seeking recusal.
Accordingly, we affirm in part and deny a certificate
of appealability and dismiss in part. 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 IN PART;
AFFIRMED IN PART
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