UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6415
DEREK MARQUIS FLEMING,
Petitioner - Appellant,
versus
VANESSA P. ADAMS, Warden, FCC Petersburg,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (CA-01-582)
Submitted: June 8, 2005 Decided: July 6, 2005
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Derek Marquis Fleming, Appellant Pro Se. Michael R. Smythers,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derek Marquis Fleming, a federal prisoner, seeks to
appeal the district court’s order construing his motion filed under
Fed. R. Civ. P. 60(b) as a successive motion under 28 U.S.C. § 2255
(2000), and dismissing it for lack of jurisdiction, and the court’s
orders denying his motions for reconsideration. The orders are 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 the district court’s assessment of his
constitutional claims is debatable or wrong 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, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Fleming has not made the
requisite showing. Accordingly, we deny a certificate of
appealability and dismiss the appeal.
In accordance with United States v. Winestock, 340 F.3d
200, 208 (4th Cir.), cert. denied, 540 U.S. 995 (2003), we construe
Fleming’s notice of appeal and informal brief on appeal as an
application to file a second or successive § 2255 motion. In order
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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)(2),
2255 ¶ 8 (2000). Fleming’s claims do not satisfy either of these
conditions. Therefore, we decline to authorize Fleming 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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