United States v. Graham , 81 F. App'x 472 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-6949
HERBERT GRAHAM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-95-69-H, CA-97-147-7-H)
Submitted: October 1, 2003
Decided: December 1, 2003
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Herbert Graham, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. GRAHAM
OPINION
PER CURIAM:
Herbert Graham appeals the district court’s order denying his "Mo-
tion for Relief from Judgment under Civil Rule 60(b) and for leave
to amend the Pleadings Under the Provisions of Civil Rule 15(c)(2)
Relation Back Authority." Graham’s motion seeks to reopen the judg-
ment dismissing his first 28 U.S.C. § 2255 motion as untimely filed
under the Antiterrorism and Effective Death Penalty Act of 1996.
Graham has requested a certificate of appealability from the court in
his notice of appeal.
Graham may not appeal from the denial of relief in a habeas pro-
ceeding unless a circuit justice or judge issues a certificate of appeala-
bility. See 28 U.S.C. § 2253(c)(1) (2000). Graham may satisfy this
standard by demonstrating that reasonable jurists would find both that
his constitutional claims are debatable and that any dispositive proce-
dural rulings by the district court are debatable or wrong. See Miller-
El v. Cockrell, 537 U.S. 322, ___, 123 S. Ct. 1029, 1039-40 (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 reviewed the record and determine that Graham’s self-
styled Motion under Rules 60 and 15 is, in substance, a second habeas
corpus motion attacking his conviction and sentence under 28 U.S.C.
§ 2255 (2000). See United States v. Winestock, 340 F.3d 200, 206 (4th
Cir. 2003). We therefore treat Graham’s notice of appeal and appel-
late brief as a request for authorization from this court to file a second
habeas corpus motion. See id. at 208.
This court may authorize a second or successive § 2255 motion
only if the applicant can show that his claims are based on (1) a new
rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or (2)
newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that no reasonable factfinder would have found
him guilty of the offense. See 28 U.S.C. §§ 2244(b)(2), 2255. The
applicant bears the burden of making a prima facie showing of these
UNITED STATES v. GRAHAM 3
requirements in his application. See In re Fowlkes, 326 F.3d 542, 543
(4th Cir. 2003). In the absence of pre-filing authorization, the district
court is without jurisdiction to entertain the motion. Evans v. Smith,
220 F.3d 306, 325 (4th Cir. 2000). After reviewing Graham’s motion
and the record in this matter, we conclude that it does meet the appli-
cable standard.
We therefore deny Graham’s request for a certificate of appeala-
bility and dismiss the appeal. We further deny Graham’s implied
request for authorization to file a second or successive habeas corpus
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