United States v. Hughes

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-6748

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHN ERIC HUGHES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (CR-00-4; CA-05-278-3)

Submitted: September 29, 2005 Decided: October 7, 2005

Before WILKINSON, KING, and GREGORY, Circuit Judges.

Dismissed by unpublished per curiam opinion.

John Eric Hughes, Appellant Pro Se. Michael Cornell Wallace,
OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

John Eric Hughes, a federal prisoner, seeks to appeal the

district court’s order denying relief on his motion to vacate

judgment pursuant to 28 U.S.C. § 2255 (2000), which Hughes

attempted to bring under Rule 60(b) of the Federal Rules of Civil

Procedure. An appeal may not be taken from the district court’s

order 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 for claims addressed by a district

court 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 both that the district court’s assessment of his

constitutional claims is 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 Hughes has not made the requisite showing.

Accordingly, we deny a certificate of appealability and dismiss the

appeal.

Additionally, we construe Hughes’ 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

- 2 -
200, 208 (4th Cir. 2003). In order 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 sufficient to

establish that no reasonable fact finder would have found the

movant guilty. 28 U.S.C. §§ 2244(b)(3)(c), 2255 (2000). Hughes’

claim does not satisfy either of these conditions. Therefore, we

decline to authorize Hughes to file a successive § 2255 motion.

Hughes’ motions for appointment of counsel and for an

evidentiary hearing are denied. 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 -