United States v. Love ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6348
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VAN ALLEN LOVE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Joseph F. Anderson, Jr., District
Judge. (0:99-cr-00573-JFA-3; 0:04-cv-01300-JFA)
Submitted: April 22, 2008 Decided: May 2, 2008
Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Van Allen Love, Appellant Pro Se. Marshall Prince, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Van Allen Love seeks to appeal the district court’s
orders dismissing his Fed. R. Civ. P. 60(b) motion as an
unauthorized successive 28 U.S.C. § 2255 (2000) motion, and denying
his subsequent Fed. R. Civ. P. 59(e) motion to alter or amend that
ruling. The orders are not appealable unless a circuit justice or
judge issues a certificate of appealability. See 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. 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, 683-84 (4th Cir. 2001).
We have independently reviewed the record and conclude that Love
has not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Additionally, we construe Love’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. See United States v. Winestock, 340
- 2 -
F.3d 200, 208 (4th Cir. 2003). In order to obtain such
authorization, 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 the movant guilty. 28
U.S.C. §§ 2244(b)(3)(C), 2255(h). Love’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
- 3 -