United States v. Winston Poyer , 678 F. App'x 125 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WINSTON DARIN POYER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney, Chief
District Judge. (3:04-cr-00162-FDW-1; 3:16-cv-00672-FDW)
Submitted: February 23, 2017 Decided: February 28, 2017
Before SHEDD and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
Winston Darin Poyer, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Winston Darin Poyer appeals the district court’s order
treating his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.
§ 2255 (2012) motion and dismissing it on that basis. A
certificate of appealability is not required in order for us to
address the district court’s jurisdictional categorization of a
“Rule 60(b) motion as an unauthorized successive habeas petition.”
United States v. McRae, 793 F.3d 392, 400 (4th Cir. 2015). Our
review of the record confirms that Poyer sought successive § 2255
relief, without authorization from this court, and we therefore
hold that the district court properly concluded that it lacked
jurisdiction to consider the subject motion. 28 U.S.C.
§§ 2244(b)(3)(A), 2255(h) (2012). Thus, we affirm the district
court’s order.
Additionally, we construe Poyer’s notice of appeal and
informal brief as an application to file a second or successive
§ 2255 motion. See United States v. Winestock, 340 F.3d 200, 208
(4th Cir. 2003). In order to obtain authorization to file a
successive § 2255 motion, a prisoner must assert claims based on
either:
(1) 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; or
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(2) a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that
was previously unavailable.
28 U.S.C. § 2255(h). Poyer’s claims do not satisfy either of these
criteria. Therefore, we deny authorization to file a successive
§ 2255 motion. We grant Poyer’s motion to proceed in forma
pauperis. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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