UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-7135
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
STEVEN MCKELVEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., District
Judge. (CR-00-380; CA-03-1764-6-GRA)
Submitted: October 20, 2005 Decided: October 31, 2005
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Steven McKelvey, Appellant Pro Se. Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Steven McKelvey seeks to appeal the district court’s
order denying relief on his motion filed under Fed. R. Civ. P.
60(b). To appeal an order denying a Rule 60(b) motion in a
postconviction proceeding, McKelvey must establish his entitlement
to a certificate of appealability. Reid v. Angelone, 369 F.3d 363,
369 (4th Cir. 2004). 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
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
McKelvey has not made the requisite showing. Accordingly, we deny
a certificate of appealability and dismiss the appeal.
Additionally, we construe McKelvey’s notice of appeal and
informal brief as an application to file a second or successive
motion under 28 U.S.C. § 2255 (2000). United States v. Winestock,
340 F.3d 200, 208 (4th Cir. 2003). In order to obtain
authorization to file a successive § 2255 motion, a movant must
assert claims based on either: (1) a new rule of constitutional
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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 factfinder would have
found the petitioner guilty of the offense. 28 U.S.C. § 2255 ¶ 8.
McKelvey’s claims do not satisfy either of these standards.
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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