United States v. Cowles

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7162
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL MIGUEL COWLES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (CR-98-9)
Submitted: September 29, 2005 Decided: October 11, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Michael Miguel Cowles, Appellant Pro Se. Laura Marie Everhart,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Michael Miguel Cowles seeks to appeal the district
court’s order dismissing for lack of jurisdiction his motion filed
pursuant to 28 U.S.C. § 2255 (2000), as untimely and an
unauthorized successive motion. An appeal may not be taken from
the final order in a habeas corpus proceeding unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). When, as here, a district court dismisses a
§ 2255 motion solely on procedural grounds, a certificate of
appealability will not issue unless the petitioner can demonstrate
both “(1) ‘that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right’ and (2) ‘that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.’”
Rose v. Lee, 252 F.3d 676, 684 (4th Cir. 2001) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). We have independently
reviewed the record and conclude that Cowles has not made the
requisite showing. See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003).
Finally, in accordance with United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003), we construe Cowles’ notice of
appeal and informal brief as an implied motion for authorization
under 28 U.S.C. § 2245 (2000), to file a successive habeas corpus
motion. To obtain permission to bring a second or successive
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§ 2255 motion, a movant must show that his claim: (1) “relies on
a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable” or (2) relies on newly discovered facts that tend to
establish the movant’s innocence. 28 U.S.C. § 2244. We conclude
that Cowles has not satisfied either standard.
Accordingly, we deny Cowles’ implicit application for
leave to file a successive § 2255 motion, deny Cowles’ motion for
certificate of appealability, and dismiss the appeal. 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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