UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7696
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEREK LAMONT GOODING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-93-131; CA-01-78-02)
Submitted: July 23, 2004 Decided: August 19, 2004
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Derek Lamont Gooding, Appellant Pro Se. Robert Joseph Seidel, Jr.,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derek Lamont Gooding seeks to appeal the district court’s
order denying his Fed. R. Civ. P. 60(b) motion seeking
reconsideration of the court’s order dismissing Gooding’s “Motion
to Vacate Void Judgement under Rule 60(b)(4)&(6),” which the
district court dismissed as a successive motion to vacate or modify
sentence under 28 U.S.C. § 2255 (2000).1 An appeal may not be
taken from the final order in a § 2255 proceeding unless a circuit
justice or judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). A certificate of appealability will not issue
absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find that
his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or
wrong. See Miller-El v. Cockrell, 537 U.S. 322, 338 (2003); Slack
v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683 (4th Cir. 2001). We have independently reviewed the record and
conclude that Gooding has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
1
By order filed March 24, 2004, this appeal was placed in
abeyance for Jones v. Braxton, No. 03-6891. In view of our recent
decision in Reid v. Angelone, 369 F.3d 363 (4th Cir. 2004), we no
longer find it necessary to hold this case in abeyance for Jones.
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Additionally, we construe Gooding’s notice of appeal and
informal brief on appeal as an application to file a second or
successive motion under 28 U.S.C. § 2255. See United States v.
Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, __ U.S. __,
124 S. Ct. 496 (2003). In order to obtain authorization to file a
successive § 2255 motion, a prisoner 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 factfinder would have found the petitioner guilty of the
offense. 28 U.S.C. §§ 2244(b)(2), 2255 (2000). Gooding’s claims
do not satisfy either of these conditions. Therefore, we decline
to authorize Gooding to file a 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
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