UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6759
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KELVIN ANDRE SPOTTS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (CR-98-47; CA-00-647)
Submitted: October 18, 2005 Decided: October 21, 2005
Before WIDENER, MICHAEL, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Kelvin Andre Spotts, Appellant Pro Se. Ray McVeigh Shepard,
Special Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kelvin Andre Spotts, a federal prisoner, seeks to appeal
the district court order denying his motion entitled “Motion for
Reconsideration and/or Redetermination of Findings and
Recommendations made on June 9th, 2003, by Magistrate Judge Maurice
Taylor.”1 An appeal may not be taken from the final order in a 28
U.S.C. § 2255 (2000) 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 Spotts has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.2
1
Spotts is referring to the Findings and Recommendation issued
by a Magistrate Judge on June 9, 2003, in which the magistrate
recommended denying Spotts’ § 2255 motion. That recommendation was
adopted by the district court.
2
We note that the district court recognized that Spotts’
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Additionally, we construe Spotts’ notice of appeal and
informal brief on appeal as an application to file a successive
§ 2255 motion. See Winestock, 340 F.3d at 208. 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).
Spotts’ claims do not satisfy either of these conditions.
Therefore, we decline to grant Spotts authorization to file a
successive § 2255 motion. We also deny Spotts’ motion to remand.
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
2
(...continued)
motion could be construed as a successive habeas motion. We find
such a construction appropriate because the motion directly
attacked Spotts’ sentence. See United States v. Winestock, 340
F.3d 200, 206-07 (4th Cir.), cert. denied, 540 U.S. 995 (2003).
Nonetheless, Spotts fails to establish the criteria for issuance of
a certificate of appealability. See Reid v. Angelone, 369 F.3d
363, 368-69 (4th Cir. 2004).
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