United States v. Turner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6845
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ERROL TURNER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
99-560; CA-05-1105-PJM)
Submitted: February 6, 2006 Decided: February 17, 2006
Before TRAXLER, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Errol Turner, Appellant Pro Se. Barbara Suzanne Skalla, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Errol Turner appeals the district court’s order
construing his Fed. R. Civ. P. 60(b) motion as an unauthorized
successive motion filed under 28 U.S.C. § 2255 (2000), and
dismissing the motion for lack of jurisdiction. An appeal may not
be taken from the final order in a § 2255 proceeding unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). 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) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that his constitutional claims are debatable and that
any dispositive procedural ruling by the district court is likewise
debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). We have independently reviewed the
record and conclude that Turner has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
We also construe Turner’s notice of appeal and informal
brief as an application to file a second or successive motion under
28 U.S.C. § 2255. See United States v. Winestock, 340 F.3d 200,
208 (4th Cir. 2003). In order to obtain authorization to file a
successive § 2255 motion, a movant must assert claims based on
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either (1) a new rule of constitutional law, previously
unavailable, made retroactive by the Supreme Court to cases on
collateral review, or (2) newly discovered evidence sufficient to
establish that no reasonable factfinder would have found the movant
guilty of the offense. 28 U.S.C. § 2255 ¶ 8. Turner’s claims do
not satisfy either of these standards. We therefore decline to
authorize 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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