Fleming v. Adams

UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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