United States v. McClinton , 117 F. App'x 287 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARTHUR JAMES MCCLINTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-93-28, CA-04-404-3-MU)
Submitted: December 16, 2004 Decided: December 28, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Arthur James McClinton, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Arthur James McClinton, a federal prisoner, seeks to
appeal the district court’s order denying relief on his motion for
reduction of sentence, construed as a 28 U.S.C. § 2255 (2000)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); see Reid v. Angelone, 369 F.3d 363, 368-69,
374 n.7 (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) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find 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,
336-38 (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 McClinton has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe McClinton’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
to obtain authorization to file a successive § 2255 motion, a
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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 that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),
2255 (2000). McClinton’s claim does not satisfy either of these
conditions. Therefore, we decline to authorize McClinton 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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