United States v. Murph

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 03-6704 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus PHILIP MURPH, a/k/a Phillip Murph, a/k/a Philip Murphy, a/k/a Phil, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (CR-94-36-BR) Submitted: August 30, 2004 Decided: October 27, 2004 Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges. Dismissed by unpublished per curiam opinion. Philip Murph, Appellant Pro Se. Robert Edward Skiver, 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 Unpublished opinions are not binding precedent in this circuit.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: Philip Murph seeks to appeal the district court’s order denying relief on his motion to reconsider under Fed. R. Civ. P. 60(b), filed in his underlying 28 U.S.C. § 2255 (2000) action. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000); Reid v. Angelone, 369 F.3d 363, 368-69 (4th Cir. 2004) (holding that appeal from the denial of a Fed. R. Civ. P. 60(b) motion in a habeas action requires a certificate of appealablity). 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, 336-38 (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 Murph has not made the requisite showing. To the extent Murph’s notice of appeal and informal brief could be construed as a motion for authorization to file a successive § 2255 motion, we deny such authorization. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). Accordingly, we deny a certificate of - 2 - 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 - 3 -