UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EUGENE ROBERT RICE,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CR-99-513; CA-03-2881)
Submitted: February 11, 2005 Decided: March 1, 2005
Before NIEMEYER, MOTZ, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Eugene Robert Rice, Appellant Pro Se. Lynne Ann Battaglia, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Eugene Robert Rice, a federal prisoner, seeks to appeal
the district court’s order denying relief on his 28 U.S.C. § 2255
(2000) motion to vacate his conviction and sentence, and the
court’s subsequent denial of his motion to reconsider, pursuant to
Fed. R. Civ. P. 60(b). An appeal may not be taken from the final
order in a habeas 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, 370 (4th Cir. 2004)
(applying the COA requirement to appellate review of the denial of
a Rule 60(b) motion). A certificate of appealability will not
issue for claims addressed by a district court 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 both 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 (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 Rice has not made the requisite showing.
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Accordingly, we deny a certificate of appealability and dismiss the
appeal.*
Additionally, we construe Rice’s notice of appeal and
informal brief on appeal as an application to file a second or
successive § 2255 motion. See Winestock, 340 F.3d at 208. In
order to obtain authorization to file a successive § 2255 motion,
a prisoner 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 sufficient to establish that no reasonable fact
finder would have found the movant guilty. 28 U.S.C.
§§ 2244(b)(3)(C), 2255 (2000). Rice’s claims do not satisfy either
of these conditions. Therefore, we decline to grant Rice
authorization 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
*
Regarding the order denying Rice’s Rule 60(b) motion, we find
that the court should have dismissed the motion for lack of
jurisdiction as a successive motion. See United States v.
Winestock, 340 F.3d 200, 206-07 (4th Cir.), cert. denied, 124 S.
Ct. 496 (2003). Nonetheless, the order is not appealable because
Rice cannot establish entitlement to a certificate of
appealability. See Reid, 369 F.3d at 368-69.
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