UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7205
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAVIDA BILAL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CR-00-48)
Submitted: November 10, 2004 Decided: November 29, 2004
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Davida Bilal, Appellant Pro Se. Laura Marie Everhart, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Davida Bilal seeks to appeal the district court’s order
denying her Fed. R. Civ. P. 60(b) motion seeking reconsideration of
the court’s order dismissing her petition under Fed. R. Civ. P
60(b) and Fed. R. Civ. P. 70 as successive and for lack of
jurisdiction. 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, 124 S. Ct. 496
(2003). Bilal’s underlying Rule 60(b) and 70 motion was properly
treated as a successive 28 U.S.C. § 2255 (2000) motion by the
district court because the claims she sought to raise attacked her
sentence.
An appeal may not be taken from the final order in a 28
U.S.C. § 2255 proceeding 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, 368-89 (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
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demonstrating that reasonable jurists would find that her
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 Bilal has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
In addition, we construe Bilal’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 Winestock, 340 F.3d
at 208. Bilal’s claims do not satisfy the conditions set forth in
28 U.S.C. §§ 2244(b)(2), 2255 (2000). Therefore, we decline to
authorize Bilal 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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