United States v. Leon Prater

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6258
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEON PRATER,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:10-cr-00041-FPS-JES-1; 5:12-cv-
00076-FPS-JES)
Submitted: July 31, 2014 Decided: August 8, 2014
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leon Prater, Appellant Pro Se. John Castle Parr, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon Prater seeks to appeal the district court’s order
adopting the magistrate judge’s recommendation and denying his
28 U.S.C. § 2255 (2012) motion. We dismiss the appeal for lack
of jurisdiction because the notice of appeal was not timely
filed.
When the United States or its officer or agency is a
party, the notice of appeal must be filed no more than sixty
days after the entry of the district court’s final judgment or
order, Fed. R. App. P. 4(a)(1)(B), unless the district court
extends the appeal period under Fed. R. App. P. 4(a)(5), or
reopens the appeal period under Fed. R. App. P. 4(a)(6). “[T]he
timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles v. Russell, 551 U.S. 205,
214 (2007).
The district court’s order denying Prater’s § 2255
motion was entered on the docket on December 11, 2013. The
notice of appeal was filed on February 11, 2014. * Because Prater
failed to file a timely notice of appeal or to obtain an
extension or reopening of the appeal period, we dismiss the
*
For the purpose of this appeal, we assume that the date
Prater signed the notice of appeal is the earliest date it could
have been properly delivered to prison officials for mailing to
the court. Fed. R. App. P. 4(c); Houston v. Lack, 487 U.S. 266(1988).
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appeal of the district court’s December 11 order denying
Prater’s § 2255 motion.
Prater also appeals the district court’s January 29,
2014 order denying his motion for reconsideration. Because this
motion was filed more than twenty-eight days after the district
court entered the judgment denying the § 2255 motion, it should
have been treated as a Fed. R. Civ. P. 60(b) motion. In re
Burnley, 988 F.2d 1, 3 (4th Cir. 1992); see also Dove v.
CODESCO, 569 F.2d 807, 809 (4th Cir. 1978) (providing that
motion should be treated as Rule 59(e) motion if filed within
time period prescribed by rule, “however it may be formally
styled”). Accordingly, we construe the motion for
reconsideration as a Fed. R. Civ. P. 60(b) motion.
The district court’s order denying the Rule 60(b)
motion is not appealable unless a circuit justice or judge
issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (2012); Reid v. Angelone, 369 F.3d 363, 368-69
(4th Cir. 2004). On appeal, as in the district court, Prater
seeks review of the merits of his § 2255 motion. Prater’s
request for relief amounts to an unauthorized successive § 2255
motion. United States v. Winestock, 340 F.3d 200, 206-07 (4th
Cir. 2003). Accordingly we deny a certificate of appealability
and dismiss the appeal as to the January 29 order.
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Additionally, we construe Prater’s notice of appeal
and informal brief as an application to file a second or
successive § 2255 motion. Id. at 208. 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
(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) (2012). Prater’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 this court and argument would not aid the decisional
process.
DISMISSED
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