UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6224
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SAMMIE LEE BROWN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief
District Judge. (CR-99-489; CA-02-4167-3-17)
Submitted: April 22, 2005 Decided: May 12, 2005
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sammie Lee Brown, Jr., Appellant Pro Se. Nancy Chastain Wicker,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sammie Lee Brown, Jr., seeks to appeal the district
court’s order denying his Fed. R. Civ. P. 60(b) motion, which the
district court construed as a successive 28 U.S.C. § 2255 (2000)
motion. Brown argues that the district court erred in failing to
give him notice of its intent to recharacterize the Rule 60(b)
motion as a § 2255 motion. See Castro v. United States, 540 U.S.
375, 383 (2003) (district court must give prisoner notice and
opportunity to respond before construing mislabeled post-conviction
motion as an initial § 2255 motion); United States v. Emmanuel, 288
F.3d 644, 649 (4th Cir. 2002). However, we find no reversible
error because the instant action is not Brown’s first § 2255
motion. Accordingly, the district court was not required to give
Brown notice before construing his Rule 60(b) motion as a
successive § 2255 motion, and dismissing it for lack of
jurisdiction. It is undisputed that Brown did not obtain
authorization from this court to file a second § 2255 motion. This
court has held that a district court “must treat Rule 60(b) motions
as successive collateral review applications when failing to do so
would allow the applicant to ‘evade the bar against relitigation of
claims presented in a prior application or the bar against
litigation of claims not presented in a prior application.’”
United States v. Winestock, 340 F.3d 200, 206 (4th Cir. 2003).
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An appeal may not be taken from the district court’s
order 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 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 that the district court’s assessment of his
constitutional claims is 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, 338 (2003); Slack
v. McDaniel, 529 U.S. 473 (2000); Rose v. Lee, 252 F.3d 676, 683
(4th Cir. 2001). Brown has not demonstrated that the district
court’s procedural ruling was debatable or wrong. Accordingly, we
deny Brown’s motion for a certificate of appealability and dismiss
the appeal.
Additionally, we construe Brown’s petition for a
certificate of appealability as an application to file a second or
successive motion under 28 U.S.C. § 2255. 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, that has
been made retroactive by the Supreme Court to cases on collateral
review; or (2) newly discovered evidence sufficient to establish
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that no reasonable factfinder would have found that movant guilty.
28 U.S.C. §§ 2244(b)(3)(c), 2255 (2000). Brown’s claim does not
satisfy either of these conditions. Therefore, we decline to
authorize Brown 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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