United States v. Kelly

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-7587
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMUEL BENJAMIN KELLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:98-cv-00569; 2:94-cr-00163-RBS-4)
Submitted: November 15, 2006 Decided: November 27, 2006
Before WIDENER, WILKINSON, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Samuel Benjamin Kelly, Appellant Pro Se. Laura P. Tayman, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Samuel Benjamin Kelly seeks to appeal the district
court’s order treating his motion to reconsider the court’s denial
of his Fed. R. Civ. P. 60(b) motion as a successive 28 U.S.C.
§ 2255 (2000) motion, and dismissing it on that basis. The order
is not appealable unless a circuit justice or judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000);
Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). 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 any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38
(2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Kelly has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Kelly’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
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file a successive § 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, 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. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Kelly’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
the court and argument would not aid the decisional process.
DISMISSED
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