Dade v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6011
DAMON DADE,
Petitioner - Appellant,
versus
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior
District Judge. (CR-99-425; CA-01-363-1)
Submitted: April 27, 2006 Decided: May 5, 2006
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Damon Dade, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Damon Dade, a federal prisoner, seeks to appeal the
district court’s order denying relief on his Fed. R. Civ. P. 60(b)
motion. It is apparent from the record that Dade’s Rule 60(b)
motion was an attempt to file a successive 28 U.S.C. § 2255 (2000)
motion. An appeal may not be taken from the final order in a
post-conviction 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 the district
court’s assessment of his constitutional claims is debatable or
wrong and that any dispositive procedural rulings by the district
court are also debatable or wrong. 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 Dade has not
made the requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
In addition, we construe Dade’s notice of appeal and
informal brief on appeal as an application for authorization to
file a successive § 2255 motion. See United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003). In order to obtain
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authorization to file a second § 2255 motion, a prisoner must
assert claims based on 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 fact finder would have
found the petitioner guilty. 28 U.S.C. § 2244(b)(3)(C) (2000).
Because Dade asserts neither a new rule of constitutional law made
retroactively applicable nor newly discovered evidence, we conclude
that he has not demonstrated grounds on which to grant
authorization under § 2244. 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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