United States v. Thomas Braddy, Jr. , 501 F. App'x 310 ( 2012 )


Menu:
  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 12-7426
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    THOMAS MONIQUE BRADDY, JR.,
    Defendant - Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Newport News.     Rebecca Beach Smith,
    Chief District Judge. (4:07-cr-00048-RBS-TEM-1)
    Submitted:   December 20, 2012              Decided:   December 27, 2012
    Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Dismissed by unpublished per curiam opinion.
    Thomas Monique Braddy, Jr.,      Appellant Pro Se.         Howard   Jacob
    Zlotnick, Assistant United       States Attorney,        Newport    News,
    Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Thomas      Monique       Braddy,     Jr.,      seeks       to       appeal     the
    district court’s order treating his Fed. R. Civ. P. 60(b) motion
    as a successive 
    28 U.S.C.A. § 2255
     (West Supp. 2012) motion, and
    denying 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)(B)           (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 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. at 484-85
    .
    We have independently reviewed the record and conclude
    that Braddy has not made the requisite showing.                          Accordingly, we
    deny a certificate of appealability and dismiss the appeal.
    Additionally,        we    construe    Braddy’s           notice      of    appeal
    and   informal      brief    as    an    application         to       file    a    second    or
    2
    successive § 2255 motion.              United States 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) 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) (West Supp. 2012).                   Braddy’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
    

Document Info

Docket Number: 12-7426

Citation Numbers: 501 F. App'x 310

Judges: King, Duncan, Hamilton

Filed Date: 12/27/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024