UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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(unpublished order).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
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