United States v. Johnson ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-7005
ANTHONY JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., District Judge.
(CR-95-149, CA-02-144-1)
Submitted: May 29, 2003
Decided: June 5, 2003
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
COUNSEL
Anthony Johnson, Appellant Pro Se. Sandra Jane Hairston, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JOHNSON
OPINION
PER CURIAM:
Anthony Johnson appeals the district court’s order accepting a
magistrate judge’s recommendation to construe Johnson’s Fed. R.
Civ. P. 60(b) motion as a second or successive motion under 28
U.S.C. § 2255 (2000), and dismiss the motion, and the district court’s
subsequent order denying his motion to alter or amend the judgment.
This court may grant a certificate of appealability only if the appellant
makes a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2) (2000). When, as here, a district court dismisses
a § 2255 motion on procedural grounds, a certificate of appealability
will not issue unless the petitioner can demonstrate both "(1) ‘that
jurists of reason would find it debatable whether the petition states a
valid claim of the denial of a constitutional right’ and (2) ‘that jurists
of reason would find it debatable whether the district court was cor-
rect in its procedural ruling.’" Rose v. Lee, 252 F.3d 676, 684 (4th
Cir.) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 534 U.S. 941 (2001). We have independently reviewed the
record and conclude that Johnson has not made the requisite showing.
See Miller-El v. Cockrell, 123 S. Ct. 1029 (2003).
We must construe Johnson’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. See United States v. Winestock, __
F.3d __, 2003 WL 1949822, at *7 (4th Cir. Apr. 25, 2003). In order
to obtain authorization 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 collateral review; or (2) newly discovered evidence that
would be sufficient 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)(3)(C), 2255 (2000). Johnson’s claims
do not satisfy either of these conditions. Therefore, we decline to
authorize Johnson to file a successive § 2255 application.
We deny a certificate of appealability, deny leave to proceed in
forma pauperis, and dismiss the appeal. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
UNITED STATES v. JOHNSON 3
in the materials before the court and argument would not aid the deci-
sional process.
DISMISSED