UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6942
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALPHONSO DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-95-59; CA-99-230-3)
Submitted: September 29, 2005 Decided: October 11, 2005
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Alphonso Davis, 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Unpublished opinions are not binding precedent in this circuit.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:
Alphonso Davis seeks to appeal the district court’s order
construing his motion titled “Motion to Reopen Title U.S.C. § 2255"
as an unauthorized successive motion under 28 U.S.C. § 2255 (2000),
and dismissing it without prejudice for lack of jurisdiction. The
district court correctly found that no provision exists that allows
for the “reopening” of § 2255 motions that have been addressed on
the merits by the district court, and that the district court had
no jurisdiction to consider a successive § 2255 motion.*
In accordance with United States v. Winestock, 340 F.3d
200, 208 (4th Cir. 2003), we consider Davis’ notice of appeal and
informal brief as a motion for authorization under 28 U.S.C. § 2244
(2000) to file a successive § 2255 motion. To obtain permission to
bring a second or successive § 2255 motion, a movant must show that
his claim: (1) “relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable” or (2) relies on newly discovered
facts that tend to establish the movant’s innocence. 28 U.S.C.
§ 2244 (2000). We conclude that Davis has not satisfied either
standard.
*
Because this was not Davis’ first § 2255 motion, the district
court was not required to notify Davis prior to construing the
motion as a successive § 2255 motion, and we accordingly reject
Davis’ challenge to the district court’s action in this regard.
See United States v. Emmanuel, 288 F.3d 644, 650 (4th Cir. 2002).
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Accordingly, we deny leave to proceed in forma pauperis,
deny Davis’ implicit application for leave to file a successive
§ 2255 motion, deny a certificate of appealability, and dismiss the
appeal. 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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