United States v. Smith , 157 F. App'x 612 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EUGENE KENNY SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (CR-96-54; CA-99-136-1)
Submitted: December 22, 2005 Decided: December 30, 2005
Before WIDENER, NIEMEYER, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eugene Kenny Smith, Appellant Pro Se. Amy Elizabeth Ray, OFFICE OF
THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eugene Kenny Smith seeks to appeal the district court’s
order construing his Fed. R. Civ. P. 60(b) motion as an
unauthorized successive motion filed under 28 U.S.C. § 2255 (2000),
and dismissing for lack of jurisdiction. 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 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 Smith has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
We also construe Smith’s notice of appeal and informal
brief as an application to file a second or successive motion under
28 U.S.C. § 2255 (2000). See United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003). In order to obtain authorization to file
- 2 -
a successive § 2255 motion, 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 sufficient to
establish that no reasonable factfinder would have found petitioner
guilty of the offense. 28 U.S.C. § 2255 ¶ 8. Smith’s claims do
not satisfy either of these standards. We therefore decline to
authorize 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
- 3 -