Nelson v. United States ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6452
ALBERT SHAW NELSON,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Cameron McGowan Currie, District
Judge. (CA-99-4168-CMC)
Submitted: September 26, 2005 Decided: October 18, 2005
Before MICHAEL, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
William Murray Norris, WILLIAM M. NORRIS, PA, Miami, Florida, for
Appellant. Marvin Jennings Caughman, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Albert Shaw Nelson seeks to appeal the district court’s
order denying his motion under Fed. R. Civ. P. 60. The order,
which derives from the denial of a motion under 28 U.S.C. § 2255(2000), is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); see
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) (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. See 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 Nelson has not made the requisite showing. Because Nelson’s
Rule 60(b) motion did not assert a defect in the original
collateral review process itself, but rather reargued the merits of
his same claims, reasonable jurists would not find debatable or
wrong the district court’s characterization of the Rule 60(b)
motion as a successive § 2255 motion under our decision in United
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States v. Winestock, 340 F.3d 200, 207 (4th Cir.), cert. denied,
540 U.S. 995 (2003).
Accordingly, we deny Nelson’s motion for a certificate of
appealability and dismiss the appeal. To the extent that Nelson’s
notice of appeal and informal brief could be construed as a motion
for authorization to file a successive § 2255 motion, we deny such
authorization. See id. at 208; 28 U.S.C. § 2244(b) (2000).
Finally, we grant Nelson’s motion to accept his informal
brief in lieu of counsel’s brief, and deny his petition for appeal
bond. 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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