United States v. Thomas

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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