United States v. Orris Avent ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6841
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ORRIS L. AVENT, a/k/a Junie Red,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda Wright Allen,
District Judge. (4:99-cr-00055-AWA-5)
Submitted: July 19, 2012 Decided: July 26, 2012
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Orris L. Avent, Appellant Pro Se. Timothy Richard Murphy,
Special Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Orris L. Avent seeks to appeal the district court’s
order treating his motion to dismiss the indictment as a
successive 28 U.S.C.A. § 2255 (West Supp. 2012) motion, and
dismissing it on that basis. The order is not appealable unless
a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2006). 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)
(2006). When the district court denies relief on the merits, a
prisoner satisfies this standard by demonstrating that
reasonable jurists would find that the district court’s
assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003). When the district court
denies relief on procedural grounds, the prisoner must
demonstrate both that the dispositive procedural ruling is
debatable, and that the motion states a debatable claim of the
denial of a constitutional right. Slack, 529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Avent has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal.
Additionally, we construe Avent’s notice of appeal and
informal brief as an application to file a second or successive
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§ 2255 motion. 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, 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; or (2) a new rule of
constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review. 28 U.S.C.A.
§ 2255(h) (West Supp. 2012). Avent’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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