UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6818
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
XAVIER MARCELLUS PAUL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (CR-98-192-A; CA-00-1506)
Submitted: July 30, 2004 Decided: September 21, 2004
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Dismissed by unpublished per curiam opinion.
Xavier Marcellus Paul, Appellant Pro Se. Morris Rudolph Parker,
Jr., Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Xavier Marcellus Paul 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 Paul’s “Motion to
Vacate, Set Aside, or Correct Sentence,” which the district court
denied without comment. In United States v. Winestock, this court
held that a district court “must treat Rule 60(b) motions as
successive collateral review applications when failing to do so
would allow the applicant to ‘evade the bar against relitigation of
claims presented in a prior application or the bar against
litigation of claims not presented in a prior application.’”
United States v. Winestock, 340 F.3d 200, 206 (4th Cir.) (quoting
Calderon v. Thompson, 523 U.S. 538, 553 (1998)), cert. denied, ___
U.S. ___, 124 S. Ct. 496 (2003). Paul’s Rule 60(b) motion should
have been treated as successive by the district court because the
claims he sought to raise were presented in his first 28 U.S.C.
§ 2255 (2000) motion. Because Paul’s Rule 60(b) motion should have
been treated as a 28 U.S.C. § 2255 motion, the procedural rules
pertaining to a certificate of appealability apply.
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.
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§ 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 Paul has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Paul’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 at 208. Paul’s claims do not satisfy the
conditions set forth in 28 U.S.C. §§ 2244(b)(2), 2255 (2000).
Therefore, we decline to authorize Paul 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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