United States v. Sheppard ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6679
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRADLEY SHANE SHEPPARD,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:04-cr-00420-HMH-1)
Submitted: July 27, 2010 Decided: August 9, 2010
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Dismissed by unpublished per curiam opinion.
Bradley Shane Sheppard, Appellant Pro Se. Alan Lance Crick,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bradley Shane Sheppard seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion for
reconsideration of his sentence. The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (2006). 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)
(2006). When the district court denied relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find the district court’s assessment of
the constitutional claims is debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell,
537 U.S. 322, 336-38 (2003). When the district court denies
relief on procedural grounds, the prisoner must demonstrate both
that the dispositive procedural ruling in debatable, and that
the motion states a debatable claim of the denial of a
constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Sheppard has not made the requisite showing. The district
court lacked jurisdiction to deny Sheppard’s Rule 60(b) motion
on the merits because the claim he raised challenged the
validity of his sentence, and thus the motion should have been
construed as a successive 28 U.S.C.A. § 2255 (West Supp. 2010)
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motion. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)
(explaining how to differentiate a true Rule 60(b) motion from
an unauthorized second or successive habeas corpus petition);
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003)
(same). In the absence of pre-filing authorization from this
court, the district court lacked jurisdiction to hear a
successive § 2255 motion. See 28 U.S.C. § 2244(b)(3) (2006).
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
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