United States v. Little

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8563
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD MONROE LITTLE, a/k/a Ebay,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:03-cr-00012-RLV-10; 5:07−cv−00036−RLV)
Submitted: May 21, 2009 Decided: May 27, 2009
Before MOTZ, TRAXLER, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Edward Monroe Little, Appellant Pro Se. Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edward Monroe Little seeks to appeal the district
court’s order denying relief on his 28 U.S.C.A. § 2255 (West
Supp. 2008) motion and its subsequent order denying his motion
to alter or amend the judgment. * The orders are not appealable
unless a circuit justice or judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1) (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). 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 Little has
*
Because Little’s motion to alter or amend judgment was not
filed within ten days of the district court’s order denying
relief on his § 2255 motion as required by Fed. R. Civ. P.
59(e), the time for appealing that order expired before he filed
his notice of appeal on December 9, 2008, and only the denial of
the motion to alter or amend judgment was preserved for appeal.
See Alston v. MCI Commc’ns Corp., 84 F.3d 705, 706 (4th Cir.
1996) (only a timely Rule 59(e) motion tolls time period for
filing notice of appeal); Fed. R. App. P. 4(a)(4)(A)(iv)-(vi).
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not made the requisite showing. Accordingly, we deny a
certificate of appealability and dismiss the appeal.
Little has also filed, as an attachment to his
informal brief, a “Motion for § 2255 Second or Subsequent
Filing.” In order to obtain authorization to file a second or
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). Little’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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