United States v. McQueen ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6597
ANTHONY MCQUEEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-95-26-7-BR, CA-98-201-7-BR)
Submitted: September 17, 2003
Decided: October 14, 2003
Before NIEMEYER, WILLIAMS, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Anthony McQueen, Appellant Pro Se. Janice McKenzie Cole,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MCQUEEN
OPINION
PER CURIAM:
Anthony McQueen seeks to appeal the district court’s marginal
order denying his self-described Fed. R. Civ. P. 60(b)(6) motion. An
appeal may not be taken from the final order in a 28 U.S.C. § 2255(2000) proceeding unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000). 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 disposi-
tive procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, ___, 123 S. Ct. 1029,
1039 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir.), cert. denied, 534 U.S. 941 (2001).
We have independently reviewed the record and conclude that
McQueen has not satisfied either standard. See Miller-El v. Cockrell,
537 U.S. 322 (2003).
Although the district court did not state its reasons for the denial
of the Rule 60(b) motion, we find that the motion is best construed
as a successive § 2255 motion, and was therefore properly denied. See
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003) (noting
that a district court has no discretion to rule on a Rule 60(b) motion
that is functionally equivalent to a successive application).
We must construe McQueen’s notice of appeal and informal brief
on appeal as an application to file a second or successive motion to
vacate under 28 U.S.C. § 2255. Id. at 208. In order to obtain authori-
zation to file a second motion to vacate, a movant must assert claims
based on either: (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on col-
lateral review; or (2) newly discovered evidence that would be suffi-
cient to establish by clear and convincing evidence that no reasonable
fact-finder would have found the movant guilty of the offense. 28
U.S.C. § 2244(b) (2000). McQueen’s claims do not satisfy either of
these conditions. Therefore, we decline to authorize McQueen to file
a successive § 2255 motion.
UNITED STATES v. MCQUEEN 3
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 argu-
ment would not aid the decisional process.
DISMISSED