United States v. Derrick Redd

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7979
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK VINCENT REDD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:97-cr-00006-JCC-1; 1:12-cv-01184-JCC)
Submitted: February 27, 2014 Decided: March 5, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Dismissed in part, affirmed in part by unpublished per curiam
opinion.
Derrick Vincent Redd, Appellant Pro Se. Robert Andrew Spencer,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Vincent Redd seeks to appeal the district
court’s order treating his Fed. R. Civ. P. 59(e) motion as a
successive 28 U.S.C. § 2255 (2012) motion, and dismissing it on
that basis. He also seeks to appeal that part of the order
denying his motion for a copy of Grand Jury transcripts. The
part of the order denying his Rule 59(e) motion as successive
and without authorization 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.
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We have independently reviewed the record and conclude
that Redd has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss in part the
appeal.
Additionally, we construe Redd’s notice of appeal and
informal brief as an application to file a second or successive
§ 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 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). Redd’s claims do not satisfy either
of these criteria. Therefore, we deny authorization to file a
successive § 2255 motion.
We also affirm in part that part of the district
court’s order denying Redd’s motion for a copy of the Grand Jury
transcripts on the reasoning of the district court. United
States v. Redd, No. 1:97-cr-00006-JCC (E.D. Va. Nov. 26, 2103).
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before this court and argument would not aid the decisional
process.
DISMISSED IN PART; AFFIRMED IN PART
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