UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAREEM TOMLIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-92-238-V; CA-01-150-3-V)
Submitted: October 20, 2005 Decided: October 28, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kareem Tomlin, 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Unpublished opinions are not binding precedent in this circuit.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:
Kareem Tomlin, a federal prisoner, seeks to appeal the
district court’s order denying relief on his motion, filed under
Rule 60(b) of the Federal Rules of Civil Procedure, in which Tomlin
challenged his 1993 conviction. 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 Tomlin has not made the requisite showing.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
Additionally, we construe Tomlin’s 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
200, 208 (4th Cir.), cert. denied, 124 S. Ct. 496 (2003). In order
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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). Tomlin’s claim does not satisfy
either of these conditions. Therefore, we decline to authorize
Tomlin to file 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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