UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6638
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PURVIS H. GORMLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-96-6-V; CA-04-613-1-V)
Submitted: July 14, 2005 Decided: July 27, 2005
Before WILKINSON, LUTTIG, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Purvis H. Gormley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Purvis H. Gormley seeks to appeal the district court’s
order dismissing his “Motion for Relief from Final Judgment
[Pursuant to Fed. R. Civ. P. 60(b)], or Alternatively, Petition for
a Writ of Audita Querela,” as a successive 28 U.S.C. § 2255 (2000)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000); 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 Gormley has not made the requisite
showing. Accordingly, we deny a certificate of appealability and
dismiss the appeal.
Additionally, we construe Gormley’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255. United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). In order to obtain authorization to
- 2 -
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, not previously
discoverable by due diligence, that would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
movant guilty of the offense. 28 U.S.C. §§ 2244(b)(2), 2255
(2000). Gormley’s claims do not satisfy either of these criteria.
Therefore, we deny authorization 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 -