United States v. Cleveland , 282 F. App'x 220 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6100
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TROY V. CLEVELAND,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:93-cr-00402-CMH-3)
Submitted: June 5, 2008 Decided: June 13, 2008
Before WILKINSON, TRAXLER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Troy V. Cleveland, Appellant Pro Se. Laura P. Tayman, Assistant
United States Attorney, Norfolk, Virginia, James L. Trump, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Troy Cleveland seeks to appeal the district court’s order
denying relief on his motion filed under Fed. R. Civ. P. 60(b)(6).
Because Cleveland’s motion did not directly attack his conviction
or sentence, but rather asserted a defect in the collateral review
process itself, it constituted a true Rule 60(b) motion under
United States v. Winestock, 340 F.3d 200, 207 (4th Cir. 2003).* To
appeal an order denying a Rule 60(b) motion in a habeas action,
Cleveland must establish entitlement to a certificate of
appealability. See Reid v. Angelone, 369 F.3d 363, 368 (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
*
Cleveland claims there existed a defect in the collateral
review process with respect to the finding that his 28 U.S.C.
§ 2255 (2000) motion was untimely. We previously upheld the
district court’s untimeliness finding, denying a certificate of
appealability and dismissing Cleveland’s appeal from the denial of
his § 2255 motion. See United States v. Cleveland, 13 F. App’x 71
(4th Cir. 2001) (unpublished). Further relitigation of the
untimeliness issue is therefore foreclosed under the law of the
case doctrine. See United States v. Bell, 5 F.3d 64, 66 (4th Cir.
1993) (stating the doctrine “compels compliance on remand with the
dictates of a superior court and forecloses relitigation of issues
expressly or impliedly decided by the appellate court”).
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wrong. See Miller-El v. Cockrell, 537 U.S. 322 (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 Cleveland has not made the requisite showing for a certificate
of appealability. 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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