United States v. Merritt

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7238
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
No. 04-7248
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
No. 04-7415
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
No. 04-7416
UNITED STATES OF AMERICA,
Petitioner - Appellee,
versus
DAVID J. MERRITT,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (CR-98-6; CR-97-43)
Submitted: January 13, 2005 Decided: January 19, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
David J. Merritt, Appellant Pro Se. Michael R. Smythers, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
- 2 -
PER CURIAM:
David Juan Merritt, a federal prisoner, seeks to appeal
the district court’s orders denying relief on his Federal Rule of
Civil Procedure 60(b) motion for reconsideration, which was
construed as a successive 28 U.S.C. § 2255 (2000) motion, and
denying his motion to proceed in forma pauperis on appeal. The
orders are not appealable unless a circuit justice or judge issues
a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); see
Reid v. Angelone, 369 F.3d 363, 368-69, 374 n.7 (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 his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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 Merritt has not made the requisite
showing. Accordingly, we deny certificates of appealability, deny
permission to proceed in forma pauperis, and dismiss the appeals.
Additionally, we construe Merritt’s notices of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See United States v. Winestock, 340 F.3d
- 3 -
200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (2003). In order
to obtain authorization to 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 that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2),
2255 (2000). Merritt’s claim does not satisfy either of these
conditions. Therefore, we decline to authorize Merritt 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
- 4 -