United States v. Bullock ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6583
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH BULLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (CR-98-133-1; CA-05-191-5)
Submitted: April 26, 2006 Decided: May 22, 2006
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Joseph Bullock, Appellant Pro Se. Michael Cornell Wallace, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joseph Bullock seeks to appeal the district court's order
construing his Fed. R. Civ. P. 60(b) motion as a successive 28
U.S.C. § 2255 (2000) motion and dismissing it as successive. The
order is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); 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 both that the district court's assessment of his
constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise
debatable. 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 Bullock has not made the requisite
showing. Accordingly, we deny leave to proceed in forma pauperis,
deny a certificate of appealability, deny Bullock’s appellate
motion for relief under Fed. R. Civ. P. 60(b), and dismiss the
appeal.
Additionally, we construe Bullock's notice of appeal and
informal brief on appeal as an application to file a second or
successive motion under 28 U.S.C. § 2255. See Jones v. Braxton,
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392 F.3d 683, 689-90 (4th Cir. 2004); 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
petitioner guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Bullock's claims do not satisfy either of these
conditions. Therefore, we deny authorization 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
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