UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7439
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WARREN THOMAS, SR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-95-370; CA-04-2452-7-20)
Submitted: January 13, 2005 Decided: January 19, 2005
Before WIDENER, NIEMEYER, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Warren Thomas, Sr., Appellant Pro Se. Isaac Louis Johnson, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Warren Thomas, Sr., seeks to appeal the district court’s
order denying his “Mandamus and Rule 60(b)” motion filed in his
underlying 28 U.S.C. § 2255 (2000) action. The district court
construed the motion under § 2255 and denied the motion as
successive, noting that Thomas would need to seek authorization
from this court to file a such a motion. The order is not
appealable 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. § 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 Thomas has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
We construe Thomas’ notice of appeal and informal brief
on appeal as an application to file a second or successive motion
to vacate under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (2003). In
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order to obtain authorization to file a second motion to vacate, a
movant must assert claims based on either: (1) a new rule of
constitutional law, previously unavailable, made retroactive by the
Supreme Court to cases on collateral review; or (2) newly
discovered evidence that would be sufficient to establish by clear
and convincing evidence that no reasonable factfinder would have
found the movant guilty of the offense. 28 U.S.C.
§§ 2244(b)(3)(C), 2255 ¶ 8 (2000). Thomas’ claims do not satisfy
either of these conditions. Therefore, we decline to authorize
Thomas to file a successive § 2255 application. 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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