United States v. Johnso ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VERRON MACARTHUR JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:03-cr-00318-HEH-1)(3:09-cr-00318-HEH-1)
Submitted: March 16, 2010 Decided: March 24, 2010
Before NIEMEYER, MOTZ, and DAVIS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Verron MacArthur Johnson, Appellant Pro Se. Peter Sinclair
Duffey, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Verron MacArthur Johnson seeks to appeal the district
court’s order treating his motion under Fed. R. Civ. P. 60 (a),
(b) as a successive 28 U.S.C.A. § 2255 (West Supp. 2009) 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) (2006); 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)
(2006). 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 Johnson has
not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Johnson’s notice of appeal
and informal brief as an application to file a second or
successive motion under 28 U.S.C.A. § 2255. United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). In order to
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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. 2009).
Johnson’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 the court and argument would not aid the decisional
process.
DISMISSED
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