United States v. Linton ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7610
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN LINTON, a/k/a Bee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Malcolm J. Howard,
District Judge. (CR-95-41-H)
Submitted: January 22, 2003 Decided: January 30, 2003
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Brian Linton, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Brian Linton, a federal prisoner, seeks to appeal the district
court’s order denying relief on the merits on his “motion to vacate
the conviction and sentence based on defective indictment,” which
motion is properly construed pursuant to 28 U.S.C. § 2255 (2000).
We have reviewed the record and conclude that because Linton failed
to obtain authorization to file a second or successive application
for writ of habeas corpus before filing his motion in the district
court, see 28 U.S.C. § 2244(b)(3)(A), he is not entitled to relief
under § 2255. Moreover, we find that Linton is not entitled to a
certificate of appealability. See generally Slack v. McDaniel, 529
U.S. 473, 484 (2000); 28 U.S.C. § 2253(c)(1) (2000). Accordingly,
we deny a certificate of appealability and dismiss the appeal. 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
2