UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6198
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALFRED CALDWELL, a/k/a Big Al,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-92-113)
Submitted: June 23, 2004 Decided: August 5, 2004
Before LUTTIG, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Douglas Fredericks, Virginia Beach, Virginia, for Appellant. Laura
Marie Everhart, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Alfred Caldwell seeks to appeal the district court's
order dismissing his 28 U.S.C. § 2255 (2000) motion as successive,
and denying his Fed. R. Civ. P. 59(e) motion for lack of
jurisdiction. 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 § 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.
2001) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). We
have independently reviewed the record and conclude that Caldwell
has not made the requisite showing. See Miller-El v. Cockrell, 537
U.S. 322, 336 (2003).
We construe Caldwell’s 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. 2003). In order to obtain authorization to file a second
or successive § 2255 motion, a movant must assert claims based on
either: (1) a new rule of constitutional law, previously
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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). Caldwell’s claims do not
satisfy either of these conditions. Therefore, we decline to
authorize Caldwell to file a successive § 2255 motion.
Accordingly, 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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