United States v. Latchmie Toolasprashad

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-8093
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LATCHMIE NARAYAN TOOLASPRASHAD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Terrence W. Boyle,
District Judge. (3:85-00045-BO-1)
Submitted: February 21, 2013 Decided: February 26, 2013
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Latchmie Narayan Toolasprashad, Appellant Pro Se. Rudolf A.
Renfer, Jr., Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Latchmie Narayan Toolasprashad seeks to appeal the
district court’s order dismissing his 28 U.S.C.A. § 2255 (West
Supp. 2012) motion as successive and without authorization from
this court. 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 Toolasprashad has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss
the appeal.
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Additionally, we construe Toolasprashad’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, 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). Toolasprashad’s claims do not
satisfy either of these criteria. Therefore, we deny
authorization to file a successive § 2255 motion.
We deny Toolasprashad’s motions to seal and for
appointment of counsel. 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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