United States v. White , 155 F. App'x 691 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7347
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN ANTONIO WHITE,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CR-97-63; CA-00-909-2)
Submitted: November 22, 2005 Decided: December 7, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Marvin Antonio White, Appellant Pro Se. Laura P. Tayman, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marvin Antonio White, a federal prisoner, seeks to appeal
the district court’s order denying relief on his motion filed
pursuant to Fed. R. Civ. P. 60(b), which the district court
construed as a successive motion filed under 28 U.S.C. § 2255(2000), and dismissed for lack of jurisdiction. 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 “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 the district court’s assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural rulings by the district court also are
debatable or wrong. See 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 White has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe White’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 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) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review; or (2) newly discovered evidence that would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). White’s claim does
not satisfy either of these conditions. Therefore, we decline to
authorize White 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
- 3 -