United States v. Dixon ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTOINE LAVAR DIXON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-01-19; CA-04-39-7-F)
Submitted: October 20, 2005 Decided: October 27, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Antoine Lavar Dixon, Appellant Pro Se. Kimberly Ann Moore, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Antoine Lavar Dixon seeks to appeal the district court's
order denying relief on his motion filed pursuant to Fed. R. Civ.
P. 60(b), seeking reconsideration of the denial of his 28 U.S.C.
§ 2255 (2000) motion. Because Dixon's motion did not assert a
defect in the collateral review process itself, but rather reargued
the merits of his § 2255 motion based on new case law, the motion
was properly characterized a successive § 2255 motion under our
decision in United States v. Winestock, 340 F.3d 200, 207 (4th
Cir.2003).*
To appeal an order denying a Rule 60(b) motion in a
§ 2255 action, Dixon must establish entitlement to a certificate of
appealability. See Reid v. Angelone, 369 F.3d 363, 368-70 (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, 336-38 (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
*
Although the district court’s order does not refer to Dixon’s
motion as a successive § 2255 motion, such a conclusion can be
inferred from the court’s reasoning.
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record and conclude that Dixon has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. To the extent that Dixon'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
Winestock, 340 F.3d at 208.
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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