United States v. Sean Dudley ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7927
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN LAMONT DUDLEY, a/k/a John D. Brown,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:99-cv-00152-RLV; 5:97-cr-00001-
RLV-1)
Submitted: February 26, 2013 Decided: March 1, 2013
Before MOTZ, WYNN, and DIAZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sean Lamont Dudley, Appellant Pro Se. Robert J. Higdon, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Lamont Dudley seeks to appeal the district
court’s order construing his Fed. R. Civ. P. 60(b) motion for
relief of judgment as a 28 U.S.C.A. § 2255 (West Supp. 2012)
motion and denying it on its merits. Because Dudley’s motion
was a successive and unauthorized § 2255 motion, see 28 U.S.C.A.
§ 2255(h); In re Vial, 115 F.3d 1192, 1194 (4th Cir. 1997), the
district court was obligated to dismiss the motion, see United
States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003), and the
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)
(2006); Jones v. Braxton, 392 F.3d 683, 688-89 (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) (2006). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that 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 is debatable, and that the motion states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
2
at 484-85. We have independently reviewed the record and
conclude that Dudley has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
Additionally, we construe Dudley’s notice of appeal
and informal brief as an application to file a second or
successive § 2255 motion. See Winestock, 340 F.3d at 208. In
order to obtain authorization to file a successive § 2255
motion, a prisoner must assert claims based on either:
(1) newly discovered evidence, not previously discoverable by
due diligence, that would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review. 28 U.S.C.A. § 2255(h). Dudley’s claims do
not satisfy either of these criteria. 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 this court and argument would not aid the decisional
process.
DISMISSED
3