United States v. James Schimmel ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7908
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES RAYMOND SCHIMMEL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:12-cr-00494-LO-1; 1:14-cv-00550-LO)
Submitted: May 19, 2016 Decided: June 2, 2016
Before SHEDD, WYNN, and THACKER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
James Raymond Schimmel, Appellant Pro Se. Kellen Sean Dwyer,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Raymond Schimmel seeks to appeal the district court’s
order construing his Fed. R. Civ. P. 60(b)(4) motion, in which
he challenged the district court’s jurisdiction to convict him,
as a 28 U.S.C. § 2255 (2012) motion, and denying relief. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1)(B)
(2012); United States v. McRae, 793 F.3d 392, 398 (4th Cir.
2015); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004),
abrogated in part by McRae, 793 F.3d at 399-400 & n.7. 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) (2012). 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 petition states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484–85.
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In McRae, we “address[ed] the question whether, in light of
Reid . . . and Gonzalez v. Crosby, 545 U.S. 524 (2005), [a
habeas applicant]’s appeal of the district court’s dismissal of
his Rule 60(b) motion as an unauthorized successive § 2255
motion is subject to the certificate of appealability
requirement.” Id. at 396 (citations and internal quotation
marks omitted). We held that no certificate of appealability is
required for us to “address the district court's jurisdictional
categorization of a Rule 60(b) motion as a successive habeas
petition.” Id. at 398.
Importantly, McRae abrogates Reid’s certificate of
appealability requirement only in the narrow situation where the
district court construes a Rule 60(b) motion as a successive
habeas petition. See id. at 400 n.7. Applying Reid and McRae
here, we conclude that appellate review of the district court’s
order denying Schimmel’s motion as an initial § 2255 motion is
subject to the certificate of appealability requirement. While
the district court recharacterized Schimmel’s motion, it did not
characterize the motion as a successive § 2255 motion, and it
did not reject the motion on jurisdictional grounds. For the
reasons set forth, we conclude that Schimmel has not
demonstrated he is entitled to relief. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
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Additionally, we construe Schimmel’s notice of appeal and
informal brief as an application to file a second or 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 that . . . would be
sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the
offense; or (2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable. 28 U.S.C. § 2255(h).
Schimmel’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
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