United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-7105

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAMONT THOMAS,

Defendant - Appellant,

No. 04-7424

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

LAMONT THOMAS,

Defendant - Appellant.

Appeals from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge. (CR-
97-365-CCB; CA-03-1076-CCB; CA-04-2522-CCB)

Submitted: February 23, 2005 Decided: March 17, 2005
Before WILKINSON, LUTTIG, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Lamont Thomas, Appellant Pro Se. Christine Manuelian, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:

In these consolidated appeals, Lamont Thomas seeks to

appeal the district court’s orders denying relief on his motion

filed under 28 U.S.C. § 2255 (2000), and his motion for relief from

judgment filed under Fed. R. Civ. P. 60(b), but construed as a

successive § 2255 motion.

An appeal may not be taken from the final order in a

§ 2255 proceeding unless a circuit justice or judge issues a

certificate of appealability. 28 U.S.C. § 2253(c)(1) (2000). A

certificate of appealability is also required to obtain review of

an order denying a Rule 60(b) motion in a habeas case. See Reid v.

Angelone, 369 F.3d 363, 368-69, 374 n.7 (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 (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 leave to proceed in forma pauperis, deny a

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certificate of appealability, deny as moot Thomas’s motion to

expedite appeal No. 04-7424, and dismiss the appeals.

Additionally, we construe Thomas’s notice of appeal and

informal brief on appeal in No. 04-7424 as an application to file

a second or successive § 2255 motion. See United States v.

Winestock, 340 F.3d 200, 208 (4th Cir.), cert. denied, 124 S. Ct.

496 (2003). 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 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) (2000); 28 U.S.C. § 2255 ¶ 8. Thomas’s claims do not

satisfy either of these conditions. We therefore decline to

authorize Thomas 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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