United States v. Pruess

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7562
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY ROLAND PRUESS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (CR-99-48; CA-01-149-5)
Submitted: January 27, 2005 Decided: February 4, 2005
Before LUTTIG and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gregory Roland Pruess, Appellant Pro Se. C. Nick Williams,
Jennifer Marie Hoefling, Assistant United States Attorneys,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gregory Roland Pruess, a federal prisoner, seeks to
appeal the district court’s order construing his motion filed
under Fed. R. Civ. P. 60(b), as a second or successive motion under
28 U.S.C. § 2255 (2000), and dismissing it for lack of
jurisdiction. The order is 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 also are
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 Pruess has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
Additionally, we construe Pruess’ notice 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
200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). In order
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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)
(2000); 28 U.S.C. § 2255 ¶ 8. Pruess’ claims do not satisfy either
of these conditions. Therefore, we decline authorization to Pruess
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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