United States v. Queen , 238 F. App'x 939 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NICHOLAS JAMES QUEEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:93-cr-00366-WMN)
Submitted: May 11, 2007 Decided: July 10, 2007
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Nicholas James Queen, Appellant Pro Se. Christine Manuelian,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nicholas James Queen seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motions. In the first
motion, Queen sought relief from an underlying criminal judgment.
In the second motion, Queen complained that the district court had
treated a postconviction motion that Queen brought pursuant to 28
U.S.C. § 2255 as having been brought pursuant to 28 U.S.C. § 2254.
In both Rule 60(b) motions, Queen directly attacked his conviction.
Therefore, under United States v. Winestock, 340 F.3d 200, 206 (4th
Cir. 2003), the district court was without jurisdiction to consider
the Rule 60(b) motions, which were, in essence, successive and
unauthorized § 2255 motions.
The district court’s order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 369
(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
any assessment of the constitutional claims by the district court
is debatable or wrong and that any dispositive procedural ruling by
the district court is likewise debatable. 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, 683-84 (4th Cir. 2001). We have
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independently reviewed the record and conclude that Queen has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Queen’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. Winestock, 340 F.3d at 208. In
order 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, not previously discoverable by due diligence,
that would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable
factfinder would have found the movant guilty of the offense. 28
U.S.C. §§ 2244(b)(2), 2255 (2000). Queen’s claims do not satisfy
either of these criteria. Therefore, we deny authorization 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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