UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-6710
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFRED GREEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
98-478-CCB, CA-00-1335-CCB)
Submitted: June 30, 2003 Decided: July 17, 2003
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismiss by unpublished per curiam opinion.
Alfred Green, Appellant Pro Se. Donna Carol Sanger, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfred Green seeks to appeal the district court's ruling
construing Green’s self-described Fed. R. Civ. P. 60(b) motion as
a motion to vacate under 28 U.S.C. § 2255 (2000), and dismissing it
as successive. 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). Where, as
here, a district court dismisses a motion to vacate 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 Green has not satisfied either standard.
See Miller-El v. Cockrell, 537 U.S. 322 (2003).
We must construe Green’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, 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
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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).
Green’s claims do not satisfy either of these conditions.
Therefore, we decline to authorize Green 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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