UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY DONALD BRYANT,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (CR-01-82; CA-05-96)
Submitted: September 27, 2005 Decided: October 4, 2005
Before LUTTIG, MOTZ, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Timothy Donald Bryant, Appellant Pro Se. Amy Elizabeth Ray, OFFICE
OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Timothy Donald Bryant seeks to appeal the district
court’s order denying relief on his motion for modification of
sentence pursuant to 18 U.S.C.A. § 3582(c)(2) (West 2000 & Supp.
2005), which the district court construed as a successive 28 U.S.C.
§ 2255 (2000) motion. An appeal may not be taken from the final
order in a § 2255 proceeding 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 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 Bryant has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Bryant’s notice of appeal and
informal brief on appeal as an application to file a second or
successive motion under 28 U.S.C. § 2255 (2000). See United
States v. Winestock, 340 F.3d 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. § 2255
(2000). Bryant’s claims do not satisfy either of these conditions.
Therefore, we decline to authorize 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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