United States v. Harris , 262 F. App'x 497 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GEORGE HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. J. Calvitt Clarke, Jr., Senior
District Judge. (2:88-cr-00076-jcc; 2:92-cv-00016-jcc).
Submitted: January 17, 2008 Decided: January 28, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
George Harris, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
George Harris seeks to appeal the district court’s order
treating his “Motion to Reopen and Supplement Original Filed Motion
to Vacate Sentence Pursuant to 28 U.S.C. § 2255” as a successive 28
U.S.C. § 2255 (2000) motion, and dismissing it on that basis. 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 that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
likewise debatable. 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 Harris has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, to the extent that Harris has filed his
motion pursuant to Fed. R. Civ. P. 60(b), we construe Harris’
notice of appeal and informal brief as an application to file a
second or successive motion under 28 U.S.C. § 2255. United States
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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, 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. 28
U.S.C. §§ 2244(b)(2), 2255 (2000). Harris’ 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
the court and argument would not aid the decisional process.
DISMISSED
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