UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6354
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
AUDLEY CASANOVA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. Frank W. Bullock,
Jr., District Judge. (CR-95-108, CA-99-1100-1)
Submitted: June 19, 2003 Decided: June 24, 2003
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Audley Casanova, Appellant Pro Se. Clifton Thomas Barrett,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Audley Casanova appeals the district court’s order denying his
motion for reconsideration of the magistrate judge’s denial of as
untimely his post-judgment motion to amend or supplement his 28
U.S.C. § 2255 (2000) motion and/or relief from judgment under Fed.
R. Civ. P. 60(b), properly construed as a second or successive
§ 2255 motion. This court may grant a certificate of appealability
only if the appellant makes a substantial showing of the denial of
a constitutional right. 28 U.S.C. § 2253(c)(2) (2000). When, as
here, a district court dismisses a § 2255 motion 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.)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), cert.
denied, 534 U.S. 941 (2001). We have independently reviewed the
record and conclude that Casanova has not made the requisite
showing. See Miller-El v. Cockrell, 123 S. Ct. 1029 (2003).
We must construe Casanova’s notice of appeal and informal
brief on appeal as an application to file a second or successive
motion to vacate under 28 U.S.C. § 2255. See United States v.
Winestock, F.3d , 2003 WL 1949822, at *7 (4th Cir. Apr. 25,
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2003). In order to obtain authorization to file a second motion to
vacate, a movant 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 fact-finder would have
found the movant guilty of the offense. 28 U.S.C. §§ 2244(b)(3)(C),
2255 (2000). Casanova’s claims do not satisfy either of these
conditions. Therefore, we decline to authorize Casanova to file a
successive § 2255 application.
We deny a 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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