UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7624
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLEVELAND NELSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Fayetteville. Malcolm J. Howard,
District Judge. (CR-94-57)
Submitted: April 21, 2004 Decided: May 28, 2004
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Vacated and remanded in part; authorization denied in part by
unpublished per curiam opinion.
Cleveland Nelson, Appellant Pro Se. Jane J. Jackson, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Cleveland Nelson, a federal prisoner, appeals the
district court’s order denying his motion for reconsideration of
its order denying relief on his motion filed under 28 U.S.C. § 2255
(2000). Because Nelson’s motion, styled as a Fed. R. Civ. P. 60(b)
motion, directly attacked his conviction and sentence rather than
any alleged defect in the collateral review process, it amounted to
a successive § 2255 motion that the district court lacked
jurisdiction to consider. See United States v. Winestock, 340 F.3d
200, 207 (4th Cir.), cert. denied 124 S. Ct. 496 (2003). We
accordingly vacate the order denying the Rule 60(b) motion and
remand to the district court with instructions to dismiss the
motion.
In accordance with Winestock, we construe Nelson’s notice
of appeal and informal brief on appeal as an application to file a
successive § 2255 motion. See id. at 208. In order to obtain
authorization to file a successive § 2255 motion, 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
sufficient to establish that no reasonable factfinder would have
found the movant guilty. See 28 U.S.C. § 2244(b)(2) (2000).
Nelson does not satisfy either of these conditions. Accordingly,
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we deny Nelson’s implicit application for leave to file a second
§ 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.
VACATED AND REMANDED IN PART;
AUTHORIZATION DENIED IN PART
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