United States v. Brian Rogers

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-7333
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN KEITH ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:10-cr-00235-FDW-1; 3:13-cv-00657-FDW)
Submitted: January 15, 2016 Decided: January 29, 2016
Before NIEMEYER, KING, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Brian Keith Rogers, Appellant Pro Se. William A. Brafford,
Cortney Randall, Assistant United States Attorneys, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Keith Rogers seeks to appeal the district court’s
order denying Rogers’ Fed. R. Civ. P. 60(b) motion for relief
from the court’s prior judgment * in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). The order is not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(B) (2012). 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)
(2012). 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
Rogers has not made the requisite showing. The district court
* The Rule 60(b) motion was filed in Rogers’ 28 U.S.C.
§ 2255 (2012) postconviction proceeding.
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lacked jurisdiction to deny Rogers’ Rule 60(b) motion on the
merits because the claim he raised challenged the validity of
his career offender sentence, and thus the motion should have
been construed as a successive 28 U.S.C. § 2255 motion. See
Gonzalez v. Crosby, 545 U.S. 524, 531–32 (2005) (explaining how
to differentiate a true Rule 60(b) motion from an unauthorized
second or successive habeas corpus petition); United States v.
Winestock, 340 F.3d 200, 207 (4th Cir. 2003) (same). In the
absence of prefiling authorization from this court, the district
court lacked jurisdiction to hear a successive § 2255 motion.
See 28 U.S.C. § 2244(b)(3) (2012).
Accordingly, we deny a certificate of appealability and
dismiss the appeal. We also deny Rogers’ motion to amend his
informal brief to add a new challenge to his sentence that was
not previously presented to the district court. Rogers remains
free, however, to pursue the legal issues identified in his Rule
60(b) motion, and motion to amend his informal brief, in a
motion pursuant to 28 U.S.C. § 2244 (2012). 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.
DISMISSED
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