United States v. Cashwell , 83 F. App'x 574 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-7069
GERALD LEE CASHWELL,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-94-454-PJM, CA-00-1732-PJM)
Submitted: November 19, 2003
Decided: December 31, 2003
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Dismissed and vacated and remanded by unpublished per curiam
opinion.
COUNSEL
Gerald Lee Cashwell, Appellant Pro Se. Jan Paul Miller, Deborah A.
Johnston, Daphene Rose McFerren, OFFICE OF THE UNITED
STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CASHWELL
OPINION
PER CURIAM:
Gerald Lee Cashwell, a federal prisoner, seeks to appeal the district
court’s orders denying his motion for 28 U.S.C. § 2255 (2000) relief
and his Rule 60(b) motion for reconsideration of that order. We deny
the certificate of appealability and dismiss Cashwell’s appeal of the
denial of his § 2255 motion. We also find that Cashwell’s Rule 60(b)
motion is properly characterized as an attempt to file a successive
§ 2255 motion. We deny Cashwell authorization to file a successive
§ 2255 motion, and, because the district court lacked jurisdiction to
enter its order, we vacate the order of the district court and remand
with instructions to dismiss.
An appeal may not be taken from the final order in a § 2255 pro-
ceeding unless a circuit justice or judge issues a certificate of appeala-
bility. 28 U.S.C. § 2253(c)(1) (2000). A certificate of appealability
will not issue absent "a substantial showing of the denial of a consti-
tutional right." 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that his
constitutional claims are debatable and that any dispositive procedural
rulings by the district court are also debatable or wrong. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). We have
independently reviewed the record and conclude that Cashwell has
not satisfied either standard.
Cashwell’s attempted motion for reconsideration, brought pursuant
to Rule 60(b), is best characterized as an attempt to file a successive
§ 2255 motion. A prisoner wishing to file a successive § 2255 motion
must first gain authorization from the circuit court. 28 U.S.C.
§ 2244(b)(3)(2000). Without such authorization, the district court
lacks jurisdiction to hear the claims. United States v. Winestock, 340
F.3d 200 (4th Cir. 2003). Because the district court lacked jurisdiction
over the claim, we must construe Cashwell’s notice of appeal and
informal brief on appeal as an application to file a successive § 2255
motion. In order to obtain authorization to file a successive § 2255
motion, a movant must assert claims based on either: (1) a new rule
of constitutional law, previously unavailable, made retroactive by the
UNITED STATES v. CASHWELL 3
Supreme Court to cases on collateral review; or (2) newly discovered
evidence sufficient to establish that no reasonable factfinder would
have found the movant guilty. 28 U.S.C. § 2244(b)(2) (2000). Cash-
well does not satisfy either of these conditions. Therefore, we decline
to authorize Cashwell to file a successive § 2255 motion. We also
vacate the order of the district court and remand with instructions to
dismiss the motion. Winestock, 340 F.3d at 208.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We also deny Cashwell authorization to file a successive
§ 2255 motion, vacate the order of the district court and remand with
instructions to dismiss. 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; VACATED AND REMANDED;
AUTHORIZATION DENIED