UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-6957
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LEROY ANTHONY THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District Judge.
(CR-98-111-HNM; CA-03-416-L)
Submitted: June 22, 2005 Decided: July 28, 2005
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Leroy Anthony Thomas, Appellant Pro Se. Andrew Clayton White,
SILVERMAN, THOMPSON & WHITE, L.L.C., Baltimore, Maryland, James
Clarke Howard, CHESAPEAKE MERIDIAN, Annapolis, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Leroy Anthony Thomas seeks to appeal the district court’s
order denying relief on his Fed. R. Civ. P. 60(b)(3) motion, in
which he sought reconsideration of the district court’s denial of
his motion under 28 U.S.C. § 2255 (2000). The order is not
appealable unless a circuit justice or judge issues a certificate
of appealability. 28 U.S.C. § 2253(c)(1) (2000); see Reid v.
Angelone, 369 F.3d 363, 370 (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 a certificate of
appealability and dismiss the appeal.
Additionally, we construe Thomas’ notice of appeal and
informal brief on appeal 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, 540 U.S. 995 (2003). In order
to obtain authorization to file a successive § 2255 motion, a
- 2 -
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). Thomas’ claim does not satisfy
either of these conditions. Therefore, we 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
- 3 -