Rice v. Maldonado , 117 F. App'x 879 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6972
TIMMY ALLEN RICE,
Petitioner - Appellant,
versus
GERALD MALDONADO, Warden of Estill Federal
Correctional Institution; UNITED STATES OF
AMERICA,
Respondents - Appellees.
No. 04-7319
TIMMY ALLEN RICE,
Petitioner - Appellant,
versus
GERALD MALDONADO, Warden of Estill Federal
Correctional Institution; UNITED STATES OF
AMERICA,
Respondents - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. G. Ross Anderson, Jr., District
Judge. (CA-03-1586-2)
Submitted: December 16, 2004 Decided: December 21, 2004
Before MICHAEL, KING, and SHEDD, Circuit Judges.
No. 04-6972, Dismissed; No. 04-7319, Affirmed, by unpublished per
curiam opinion.
Timmy Allen Rice, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
These two related appeals have been consolidated on
appeal. In No. 04-6972, Timmy Allen Rice, a federal prisoner,
seeks to appeal the district court’s order construing his motion to
reconsider as a second or successive motion under 28 U.S.C. § 2255(2000), and dismissing it for lack of jurisdiction. 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 Rice has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Rice’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
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200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). 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 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)
(2000); 28 U.S.C. § 2255 ¶ 8. Rice’s claims do not satisfy either
of these conditions. Therefore, we decline to authorize Rice to
file a successive § 2255 motion.
In No. 04-7319, Rice appeals the district court’s order
denying his motion to proceed on appeal in forma pauperis for
failing to comply with Fed. R. App. P. 24(a). As the district
court was correct in its ruling, we affirm its decision. In both
appeals, we deny leave to proceed on appeal in forma pauperis. 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.
No. 04-6972: DISMISSED
No. 04-7319: AFFIRMED
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