UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7504
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TOMMY PABELLON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CR-97-487; CA-00-1392)
Submitted: January 31, 2005 Decided: February 23, 2005
Before WILLIAMS, MICHAEL, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Tommy Pabellon, Appellant Pro Se. Harold Watson Gowdy, III, 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Unpublished opinions are not binding precedent in this circuit.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:
Tommy Pabellon seeks to appeal the district court’s order
denying relief on his motion filed pursuant to Fed. R. Civ. P.
60(b), seeking reconsideration of the denial of his 28 U.S.C.
§ 2255 (2000) motion. Because Pabellon’s motion did not assert a
defect in the collateral review process itself, but rather reargued
the merits of his § 2255 motion based on new case law, the district
court concluded that it did not constitute a true Rule 60(b) motion
under our decision in United States v. Winestock, 340 F.3d 200, 207
(4th Cir.), cert. denied, 540 U.S. 995 (2003). To appeal an order
denying a Rule 60(b) motion in a habeas action, Pabellon must
establish entitlement to a certificate of appealability. See
Reid v. Angelone, 369 F.3d 363, 368 (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 Pabellon has not made the requisite
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showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
To the extent Pabellon’s notice of appeal and informal
brief could be construed as a motion for authorization to file a
successive § 2255 motion, we deny such authorization. See
Winestock, 340 F.3d at 208. 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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