UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7455
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH ALAN WATSON, a/k/a “Tank”,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CR-99-23; CA-03-381)
Submitted: August 25, 2005 Decided: August 30, 2005
Before TRAXLER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Keith Alan Watson, Appellant Pro Se. Fernando Groene, OFFICE OF
THE UNITED STATES ATTORNEY, Newport News, Virginia, Robert Joseph
Seidel, Jr., Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Keith Alan Watson appeals the order of the district court
denying relief on his motion filed under 28 U.S.C. § 2255 (2000),
and its order dismissing for lack of jurisdiction Watson’s motion
filed under Fed. R. Civ. P. 60(b) but characterized by the district
court as a successive 28 U.S.C. § 2255 (2000) motion.
The orders are not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1) (2000). Watson may satisfy this standard by
demonstrating that reasonable jurists would find both that his
constitutional claims are debatable and that any dispositive
procedural rulings by the district court are 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
determine that Watson has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
In addition, we construe Watson’s notice of appeal and
appellate brief as a request for authorization from this court to
file a second § 2255 motion. See United States v. Winestock, 340
F.3d 200, 208 (4th Cir. 2003). This court may authorize a second
or successive § 2255 motion only if the applicant can show that his
claims are based on (1) a new rule of constitutional law, made
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retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable; or (2) newly discovered evidence
that, if proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found him guilty of the
offense. See 28 U.S.C. §§ 2244(b)(2), 2255 (2000). The applicant
bears the burden of making a prima facie showing of these
requirements in his application. See In re Fowlkes, 326 F.3d 542,
543 (4th Cir. 2003). In the absence of pre-filing authorization,
the district court is without jurisdiction to entertain the motion.
Evans v. Smith, 220 F.3d 306, 325 (4th Cir. 2000). We conclude
that Watson’s claims do not satisfy either of the applicable
conditions, and we, therefore, deny his implied request for
authorization to file a second or 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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