United States v. Gadson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-6739

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FLOYD GADSON,

Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-93-33-MU; CA-03-482-3)

Submitted: November 4, 2004 Decided: November 9, 2004

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Floyd Gadson, Appellant Pro Se. Gretchen C.F. Shappert, United
States Attorney, Jennifer Marie Hoefling, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Floyd Gadson seeks to appeal the district court’s orders

construing his Writ of Audita Querela as a motion under 28 U.S.C.

§ 2255 (2000) and dismissing it as successive, and denying his

motion to alter or amend judgment filed pursuant to Fed. R. Civ. P.

59(e). The orders are not appealable unless a circuit justice or

judge issues a certificate of appealability. 28 U.S.C.

§ 2253(c)(1) (2000); see Reid v. Angelone, 369 F.3d 363, 368-69,

374 n.7 (4th Cir. 2004). 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 Gadson has not made the

requisite showing. Accordingly, we deny a certificate of

appealability and dismiss the appeal.

Additionally, we construe Gadson’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.), cert. denied, 124 S. Ct. 496 (2003). We note

- 2 -
that Gadson seeks to assert a claim based upon Apprendi v. New

Jersey, 530 U.S. 466 (2000), which is identical to the claim he

sought to raise in a previous motion under § 2244, which was

denied. In re Gadson, No. 00-778 (4th Cir. Sept. 20, 2000)

(unpublished order). Accordingly, we decline to authorize Gadson

to file a successive § 2255 motion. In re Williams, 364 F.3d 235,

240 (4th Cir. 2004). 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 -