UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7259
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY SINGLETARY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. C. Weston Houck, Senior District
Judge. (CR-90-86; CA-92-1067-12-4)
Submitted: January 30, 2004 Decided: July 26, 2004
Before LUTTIG, SHEDD, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jerry Singletary, Appellant Pro Se. Mark C. Moore, Assistant
United States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In 2001, Jerry Singletary filed a request for a
certificate of appealability (“COA”) from the district court’s 1996
denial of his motion under 28 U.S.C. § 2255 (2000). Because
Singletary’s appeal is almost five years late, his appeal must be
dismissed as untimely, and his request for a COA is denied as moot.
See F. R. App. P. 4(a)(1)(B).
Despite the label Singletary attached to his motion, it
appears, in reality, to request authorization to file a second or
successive motion under § 2255. Consequently, we construe his
motion as a request for such authorization. See United States v.
Winestock, 340 F.3d 200, 208 (4th Cir. 2003). 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. 28 U.S.C. § 2244(b)(2) (2000).
Singletary does not satisfy either of these conditions.
Singletary’s sole argument is that the Supreme Court’s decision in
Apprendi v. New Jersey, 503 U.S. 466 (2000), announced a new rule
of law that should be made retroactive on collateral review.
Singletary’s argument is foreclosed by this court’s decision in
United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001).
- 2 -
Therefore, we decline to authorize Singletary to file a successive
§ 2255 motion.
Accordingly, we deny the certificate of appealability as
moot and dismiss the appeal. We also deny Singletary authorization
to file a second or 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
- 3 -