United States v. Colter , 117 F. App'x 234 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6983
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PERRY L. COLTER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(CR-95-405-CCB; CA-97-997-CCB)
Submitted: October 22, 2004 Decided: December 6, 2004
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Perry L. Colter, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Perry L. Colter, a federal prisoner, seeks to appeal the
district court’s order denying relief on his motion to vacate
judgment pursuant to 28 U.S.C. § 2255 (2000), which Colter
attempted to bring under Fed. R. Civ. P. 60(b). An appeal may not
be taken from the final order in a § 2255 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 for claims addressed by a district court 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 both that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Colter has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Colter’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). In order
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to obtain authorization to file a successive § 2255 motion, a
prisoner 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 sufficient to establish that no reasonable fact
finder would have found the movant guilty. 28 U.S.C.
§§ 2244(b)(3)(C), 2255 (2000). Colter’s claim does not satisfy
either of these conditions. Therefore, we decline to authorize
Colter 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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